Presentation is loading. Please wait.

Presentation is loading. Please wait.

Map of eviction procedure (including court and enforcement procedure) This presentation shows all procedural steps that, according to the relevant legislation,

Similar presentations


Presentation on theme: "Map of eviction procedure (including court and enforcement procedure) This presentation shows all procedural steps that, according to the relevant legislation,"— Presentation transcript:

1 Map of eviction procedure (including court and enforcement procedure) This presentation shows all procedural steps that, according to the relevant legislation, a natural or legal person seeking eviction has to take before the case is decided on the merits, including both civil and enforcement procedures. Together with procedural steps envisaged by law (the de jure map of the eviction procedure), it shows at which steps, as stated by the attorneys frequently involved in such procedures, delays and other problems usually occur, therefore making the procedures often ineffective (the de facto map of the eviction procedure). How to use this presentation To see the most important rules applying to each step, click on the arrow next to the step. To see a brief explanation of how and why delays and other problems occur, click on the black field indicating where those occur. For more information on how the eviction procedure look in practice, see a summary report on the research dealing with this topic, available on the following link: the%20Court%20and%20Enforcement%20Procedures.pdf

2 3A. (OPTIONAL) SCHEDULING OF HEARING BEFORE THE DEFENDANT ANSWERS THE CLAIM 3A. (OPTIONAL) SCHEDULING OF HEARING BEFORE THE DEFENDANT ANSWERS THE CLAIM STEPS THAT CAN BE UNDERTAKEN AFTER THE DELIVERY OF THE JUDGMENT (STEP 11.) A. ENFORCEMENT PROCEEDINGS A. ENFORCEMENT PROCEEDINGS B. APPELLATE PROCEDURE De jure map

3 3A. (OPTIONAL) SCHEDULING OF HEARING BEFORE THE DEFENDANT ANSWERS THE CLAIM 3A. (OPTIONAL) SCHEDULING OF HEARING BEFORE THE DEFENDANT ANSWERS THE CLAIM STEPS THAT CAN BE UNDERTAKEN AFTER THE DELIVERY OF THE JUDGMENT (STEP 11.) A. ENFORCEMENT PROCEEDINGS A. ENFORCEMENT PROCEEDINGS B. APPELLATE PROCEDURE problems delays problems problems and delays problems and delays delays problems and delays problems and delays delays De facto map

4 A3. DELIVERY OF ENFORCEMENT ORDER - decision which adopts the motion is delivered to enforcement creditor and enforcement debtor, while the decision rejecting the motion is delivered only to enforcement creditor (Article 38 of Law on Enforcement and Security), within 5 days from the day when the decision was made (Article 7, Paragraph 1 of Law on Enforcement and Security); - if it was not possible to deliver the decision to the debtor, the delivery is made by posting the decision on notice board of the competent court (Article 29, Paragraph 4 of Law on Enforcement and Security); - ENFORCEMENT ORDER on movable property and conclusion on emptying and handing in of immovable property shall be submitted to enforcement debtor immediately before taking the first enforcement action, unless otherwise provided by the Law on Enforcement and Security (Article 38, Paragraph 3 of Law on Enforcement and Security); if the court which issued an enforcement order is not competent for execution of the enforcement, it will send the enforcement order to the competent court for delivery of this order and execution of enforcement (Article 38, Paragraph 4 of Law on Enforcement and Security) A3. DELIVERY OF ENFORCEMENT ORDER - decision which adopts the motion is delivered to enforcement creditor and enforcement debtor, while the decision rejecting the motion is delivered only to enforcement creditor (Article 38 of Law on Enforcement and Security), within 5 days from the day when the decision was made (Article 7, Paragraph 1 of Law on Enforcement and Security); - if it was not possible to deliver the decision to the debtor, the delivery is made by posting the decision on notice board of the competent court (Article 29, Paragraph 4 of Law on Enforcement and Security); - ENFORCEMENT ORDER on movable property and conclusion on emptying and handing in of immovable property shall be submitted to enforcement debtor immediately before taking the first enforcement action, unless otherwise provided by the Law on Enforcement and Security (Article 38, Paragraph 3 of Law on Enforcement and Security); if the court which issued an enforcement order is not competent for execution of the enforcement, it will send the enforcement order to the competent court for delivery of this order and execution of enforcement (Article 38, Paragraph 4 of Law on Enforcement and Security) A1. SUBMITTING THE MOTION FOR ENFORCEMENT OF JUDGMENT - it is submitted to Court of First Instance (which passed the first instance judgment) (Article 3 of Law on Enforcement and Security); in the first instance the judgment is passed by individual judge, and in the second instance by panel of three judges (Article 5, paragraph 1 of Law on Enforcement and Security); A1. SUBMITTING THE MOTION FOR ENFORCEMENT OF JUDGMENT - it is submitted to Court of First Instance (which passed the first instance judgment) (Article 3 of Law on Enforcement and Security); in the first instance the judgment is passed by individual judge, and in the second instance by panel of three judges (Article 5, paragraph 1 of Law on Enforcement and Security); A2. MAKING A DECISION ABOUT MOTION FOR ENFORCEMENT - the court shall make a decision on motion for enforcement within 5 working days from submission of the motion, and deliver the decision to the parties within 5 working days from the day when the decision was made (Article 7, Paragraph 1 of Law on Enforcement and Security); - decisions on enforcement proceedings are made in form of in form of order or conclusion (Article 36, Paragraph 1 of Law on Enforcement and Security); Decision on execution allows execution on property of execution debtor, under the conditions and within the scope of this decision (Article 36, Paragraph 2 of Law on Enforcement and Security); Conclusion of the court determines implementation of certain actions and manages the procedure (Article 36, Paragraph 3 of Law on Enforcement and Security); A2. MAKING A DECISION ABOUT MOTION FOR ENFORCEMENT - the court shall make a decision on motion for enforcement within 5 working days from submission of the motion, and deliver the decision to the parties within 5 working days from the day when the decision was made (Article 7, Paragraph 1 of Law on Enforcement and Security); - decisions on enforcement proceedings are made in form of in form of order or conclusion (Article 36, Paragraph 1 of Law on Enforcement and Security); Decision on execution allows execution on property of execution debtor, under the conditions and within the scope of this decision (Article 36, Paragraph 2 of Law on Enforcement and Security); Conclusion of the court determines implementation of certain actions and manages the procedure (Article 36, Paragraph 3 of Law on Enforcement and Security); A4. COMPLAINT TO ENFORCEMENT ORDER (in principle, the complaint does not stay the enforcement of the decision, unless otherwise provided by the law (Article 40, Paragraph 4) - the complaint must be filed within 5 working days from the receipt of enforcement order (Article 39, Paragraph 3 of Law on Enforcement and Security); A4. COMPLAINT TO ENFORCEMENT ORDER (in principle, the complaint does not stay the enforcement of the decision, unless otherwise provided by the law (Article 40, Paragraph 4) - the complaint must be filed within 5 working days from the receipt of enforcement order (Article 39, Paragraph 3 of Law on Enforcement and Security); A5. DECISION ON COMPLAINT TO ENFORCEMENT ORDER - the decision is made by a panel of 3 judges of the court which made a decision (Article 41 of Law on Enforcement and Security); - the court shall decide on the complaint within 5 working days from the day when the complaint was filed, unless otherwise provided by Law on Enforcement and Security (Article 39, Paragraph 4). A5. DECISION ON COMPLAINT TO ENFORCEMENT ORDER - the decision is made by a panel of 3 judges of the court which made a decision (Article 41 of Law on Enforcement and Security); - the court shall decide on the complaint within 5 working days from the day when the complaint was filed, unless otherwise provided by Law on Enforcement and Security (Article 39, Paragraph 4).

5 B1. FILING A COMPLAINT - the complaint is filed with the court which passed the judgment (it examines the timeliness, completeness and permissibility); higher court or court of appeal is competent; the complaint is submitted to the defendant in order to answer to it (there is no time limit for submitting the complaint to the defendant), who can deliver the answer within 15 days; the complaint must be served; the procedure is not continued unless the complaint is served; B1. FILING A COMPLAINT - the complaint is filed with the court which passed the judgment (it examines the timeliness, completeness and permissibility); higher court or court of appeal is competent; the complaint is submitted to the defendant in order to answer to it (there is no time limit for submitting the complaint to the defendant), who can deliver the answer within 15 days; the complaint must be served; the procedure is not continued unless the complaint is served; B2. DEFENDANT'S RESPONSE (to the first instance court) - the response can be submitted within 15 days; the response is immediately delivered to the plaintiff; within 8 days from receipt of the response the case is passed to the second instance court; B2. DEFENDANT'S RESPONSE (to the first instance court) - the response can be submitted within 15 days; the response is immediately delivered to the plaintiff; within 8 days from receipt of the response the case is passed to the second instance court; B3. EXAMINATION OF COMPLAINT - possibility of scheduling a hearing; the second instance court shall decide on the complaint within a period of 9 months (Article 383, Paragraph 2 of Civil Procedure Act), if the debate is not opened; if the debate is opened the court shall determine a time frame for implementation of procedure (no deadline for decision); If the judgment has already been canceled, can not be returned to the first instance court for retrial;; B3. EXAMINATION OF COMPLAINT - possibility of scheduling a hearing; the second instance court shall decide on the complaint within a period of 9 months (Article 383, Paragraph 2 of Civil Procedure Act), if the debate is not opened; if the debate is opened the court shall determine a time frame for implementation of procedure (no deadline for decision); If the judgment has already been canceled, can not be returned to the first instance court for retrial;; B4. MAKING A DECISION - once decision is made, case file is returned to the first instance court within 30 days from the date of making the decision (Article 397 Civil Procedure Act); the first instance court shall immediately forward the decision to the parties; B4. MAKING A DECISION - once decision is made, case file is returned to the first instance court within 30 days from the date of making the decision (Article 397 Civil Procedure Act); the first instance court shall immediately forward the decision to the parties; B5. (OPTIONAL following B4) REPEATING THE PROCEDURE - in case procedure is repeated, within 30 days from decision reception, the first instance court must hold a hearing and set a timeframe for the new main trial before the first instance court (Article 398, Paragraph 1); new procedure is conducted under the rules in force for the first trial. B5. (OPTIONAL following B4) REPEATING THE PROCEDURE - in case procedure is repeated, within 30 days from decision reception, the first instance court must hold a hearing and set a timeframe for the new main trial before the first instance court (Article 398, Paragraph 1); new procedure is conducted under the rules in force for the first trial.

6 STEP 1. FILING AN EVICTION CLAIM - independently or through an attorney; STEP 2. PRELIMINARY CLAIM EXAMINING (Court action) - if the court finds that the claim is illegible or incomplete or that present are shortcomings with respect to plaintiff’s or defendant’s ability to be parties to a case or shortcomings with respect to legal representation of a party or shortcomings with respect to representative’s authorization to file a lawsuit if such authorization is necessary, it shall take the necessary steps stipulated in this law aimed at eliminating these shortcomings (Articles 80. and 101) (Article 292 Civil Procedure Act); deadline for resubmission of application is 8 days (Article 101 Civil Procedure Act); STEP 3. SUBMITTING A CLAIM TO DEFENDANT TO ANSWER (Court action) - the court shall, within 15 days upon receiving the claim, deliver the claim with enclosures to defendant to answer; STEP 3A. SCHEDULING A HEARING BEFORE THE DEFENDANT ANSWERS THE CLAIM - court may, exceptionally, if required by special circumstances of a case, and especially if it is required for making a decision on the motion for a temporary measure or in case of emergency procedures, schedule a hearing instantly and deliver the claim with enclosures to the defendant (Article 299 Civil Procedure Act); STEP 4. DEFENDANT'S ANSWER - the defendant shall, within 30 days from the day of delivering the claim with enclosures, submit an answer to the claim (Article 297, Paragraph 1 Civil Procedure Act); - if a defendant with temporary or permanent residence abroad doesn’t submit a notice on an attorney for receiving documents to the court, the court shall appoint one and inform the defendant about it (Article 298, Paragraph 4 Civil Procedure Act);

7 STEP 5. SUBMITTING THE DEFENDANT'S ANSWER TO PLAINTIFF - there is no defined deadline within which the court has to deliver defendant's response to the plaintiff; in practice, when invitation for preliminary hearing is sent, also defendant's response is sent; STEP 6. SCHEDULING A PRELIMINARY HEARING - court will schedule and hold a preliminary hearing not later than 30 days from delivering the answer to plaintiff to the claim (Article 301, Paragraph 1 Civil Procedure Act); - if the defendant hasn’t submitted an answer to the claim, court will schedule and hold a preliminary hearing not later than 30 days from the day of expiration of deadline for submitting an answer to the claim(Article 301, Paragraph 2 Civil Procedure Act); - invitation for preliminary hearing is delivered not later than 8 days before the hearing (Article 302 Civil Procedure Act); STEP 7. PRELIMINARY HEARING OR THE FIRST MAIN HEARING (if preliminary hearing is not mandatory) - party shall, not later than on the preliminary hearing or the first main hearing, if preliminary hearing is not mandatory (Article 302), present all the facts necessary to justify their motions, suggest evidence confirming presented facts, comment on the allegations and presented evidence of the opposing party, as well as propose a timeframe for conducting the procedure (Article 308, Paragraph 1 Civil Procedure Act); - court will decide at the hearing which evidence to bring to the main hearing and set a timeframe for conducting the procedure (Article 308, Paragraph 3 Civil Procedure Act); - decision on setting a timeframe for conducting the procedure encompasses: number of hearings, time of hearings, schedule of bringing evidence to hearings and undertaking other procedure activities, court deadlines, as well as total duration of the main hearing (Article 308, Paragraph 4 Civil Procedure Act); - propositions for bringing in evidence considered not relevant for decision-making by the court, shall be refused by the court with a decision against which no complaint is allowed (Article 308, Paragraph 5 Civil Procedure Act);

8 STEP 8. MAIN HEARING - will be scheduled not later than 30 days from the preliminary hearing, or from receiving a response to the claim or from expiry of Civil Procedure Act deadline for answering the claim (30 days), if found that preliminary hearing is not necessary (Article 302) (Article 309, Paragraph 1). - court may decide to conclude the main hearing and when it is left to obtain documents including evidence necessary for decision-making or if it is necessary to wait for the record of the evidence derived from the commissioned court, and parties refrain from discussing this evidence or the court determines that it is not necessary (Article 319 Civil Procedure Act); it is not defined how long it may last; STEP 9. PASSING AND ANNOUNCEMENT OF THE JUDGMENT - immediately after the conclusion of the main hearing, court passes a judgment, announced by an individual judge (Article 352, Paragraph 2 Civil Procedure Act); - in rather complex cases, court can postpone announcing of judgment for 8 days from the day of concluding the main hearing (Article 352, Paragraph 3 Civil Procedure Act); if, pursuant to Article 319, there is a need to wait for documents or record of the evidence derived from the commissioned court, judgment will be announced not later than 8 days upon receiving the documents, or record; STEP 10. WRITTEN JUDGMENT - judgment has to be completed in writing within 8 days from the date of passing; in rather complex cases, court can postpone delivering written copy of judgment for another 15 days (Article 354, Paragraph 1 Civil Procedure Act); parties are delivered certified copy of the judgment with instructions on their right to use a legal remedy (Article 354, Paragraph 3 Civil Procedure Act). STEP 11. SERVING THE JUDGMENT - as soon as the judgment is completed, it is delivered to parties; complaint deadline is 15 days;

9 A step that a party to any civil proceeding, including the eviction related proceedings, might have to take in order to file a suit In eviction procedures, a step that plaintiffs in other proceedings often have to take before they initiate the proceedings, finding information on the defendant’s registered residence, is necessary less often. This is due to the fact that the registered address of many defendants is the address of the real estate over which the dispute exists. However, if a defendant’s registered residence is not the address of the real estate in question, the plaintiff has to ensure that she or he knows the defendant’s address, which usually means that she or he has to obtain that address from the police. According to the attorneys, the whole operation takes approximately a month or longer and a plaintiff or judgment creditor has to pay the police a fee of approximately 4 to 5 Euros, in addition to the costs of the required attorney work. Therefore, when looking the de jure map, one should bear in mind that the described procedure might be necessary before step 1 is taken, or before procedure A is initiated.

10 Problems with delivering lawsuits and invitations to hearings In eviction procedures, defendants in these proceedings usually take every opportunity to prolong or obstruct the proceedings, and are often successful. Many delays occur when lawsuits or invitations to hearings have to be delivered.

11 Delays in scheduling the first preliminary hearing or the first main hearing and inefficient use of those hearings Some of the attorneys frequently involved in civil proceedings, and in particular eviction proceedings, argue that judges sometimes delay the scheduling of the first preliminary hearing or the first main hearing and do not always use that hearing in the best possible way, which later results in prolonged proceedings.

12 Problems and delays during main hearings According to the attorneys frequently involved in eviction proceedings, in many cases considerable delays and other problems occur during the main hearing, for various reasons. Most often, those reasons include, inter alia: busy court schedules, especially in Belgrade, which often means that the period between two hearings is longer than a few months; problems that courts face when they have to deliver invitations to hearings to the parties or witnesses (delivery related problems); the parties’ obstructions, as they often do not appear before the court when invited or propose witnesses whose testimonies are not necessary or obstruct trials in other ways, etc. Furthermore, main hearings and therefore the whole trials might take a lot of time if the judges in charge changes, which is not rare, especially in the last few years since the reform of the judiciary started. All these factors contribute to very long proceedings, usually taking between two and three years, but in many cases even more than that.

13 Courts’ failure to deliver a written judgment within the stipulated time limits According to attorneys, courts almost never deliver written judgments within the stipulated time limits (hence, step 10 in the de jure map takes more time than the Civil Procedure Code envisages).

14 Problems with enforcement of judgments According to the attorneys involved in eviction related procedures, the most important problem that they face in those cases is that many of the judgments are not enforced. They assert that when a debtor refuses to leave the property, it is rather unlikely that the first attempt to evict him or her will be successful. In fact, the majority of attorneys claims that cases where the first attempt to evict someone finishes successfully are infrequent. Those attorneys say that delays occur because bailiffs and the police often do not implement the relevant laws, in particular provisions defining their powers. In other words, they argue that these powers are not always used, which allows debtors to avoid enforcement. Several attorneys state that “whenever a debtor threatens that he will do something violent, the police and bailiffs are the first to leave the place”. Also, they believe that the legislative framework regulating enforcement is not sufficiently detailed and could be significantly improved. It must be noted that successful plaintiffs usually cannot recoup costs of proceedings because defendants do not have means to pay these costs or because their property and income remain out of the courts’ reach (either because the property was transferred to other persons or because the income comes from the shadow economy). Hence, although they did not cause the dispute and the judgment goes into their favour, more often than not plaintiffs will have to bear costs of the proceedings, which, given the average length of the proceedings, might be high.

15 Slow appellate courts and often retrials Appellate proceedings that do not finish within the time limit envisaged by the Civil Procedure Code, which is nine months, are not unusual, espeacially in Belgrade. According to the attorneys from this city, proceedings on appeal usually take between a year and a year and a half, if not more. Furthermore, it is not rare that first instance judgments are quashed and cases sent to retrials.


Download ppt "Map of eviction procedure (including court and enforcement procedure) This presentation shows all procedural steps that, according to the relevant legislation,"

Similar presentations


Ads by Google