CODE OF CIVIL PROCEDURE IN BOSNIA AND HERZEGOVINA

This article will provide guidance on the Code of Civil Procedure in Bosnia and Herzegovina. The political system of Bosnia and Herzegovina is intriguing and complicated. The origins and processes of this institution are crucial to comprehending Bosnia and its political and socioeconomic problems. Along with Slovenia, Croatia, Serbia, Macedonia, and Montenegro, Bosnia, and Herzegovina was one of the six republics that comprised the former Socialist Federal Republic of Yugoslavia (SFRY).

After Yugoslavia broke apart in 1991 and 1992, Bosnia had an inter-ethnic war that lasted until the Dayton Peace Agreement was signed in 1995. It crafted an intricate constitutional framework that continues to impact the country's social and political climate.

BACKGROUND

The Constitution of Bosnia and Herzegovina, which is attached to the agreement, states that the country is divided into three parts; [A.] the Federation of Bosnia and Herzegovina, [B.] the Republika Srpska, and the [C.] Brko District.

Constitutional revisions, legislation, ratification of international treaties, approval and implementation of the state budget, and approval of and control over the Council of Ministers are all primary responsibilities of the chambers. One Chairman, chosen by the President, is joined by two Vice Chairs. All three are required to stand in for the three component populations. The other members of the Council are the nine Ministers.

The Chairman's duties are only loosely analogous to a Prime Minister's. Along with their deputies, they coordinate the activities of the government and other central state institutions, entities, and the Brko Districts. Regarding elections and appointments, the institutions of Bosnia and Herzegovina demonstrate unambiguously that the geographical component satisfies the ethnic criterion.

Some scholars contend that the state structure of Bosnia and Herzegovina is federal rather than confederal, leading to the term ‘complex federalism’ being used in the country. However, the entities have no legal standing to break away from the central state. Both ‘quasi-state’ organizations with their own Constitutions formed due to events during and after the conflict.’

The Federation's Constitution (1994) is a consociational document that divides the organization into ten autonomous cantons with their legislatures, governments, and courts. It has a House of Representatives and a House of Peoples inside its Parliament. Both houses vote on who will serve as President of the Federation and their deputies, and those chosen must be acceptable to all three of the country's population groups. The government must be representative of the diverse population of the Federation.

There are two houses in Parliament; the National Assembly and the Council of the Peoples. Both of the President's Vice Presidents must be from the other two major racial or ethnic groupings, while the President themselves is chosen by popular vote. Since there is no horizontal politics between the entity and its citizens, the government is more centralized than the Federation.

HOW IS CIVIL PROCESS CONDUCTED IN BOSNIA AND HERZEGOVINA

Each side has the right to make its case in response to the other's allegations and offers. Only in exceptional circumstances established by law does the court have jurisdiction to rule on a claim to which the opposing party has not been allowed to reply. The civil process should be conducted in Cyrillic and Latin scripts and the Serbian, Bosnian, and Croatian languages.

Each side must fully state its case and provide proof to support its arguments. Suppose the result of the hearing and the presentation of evidence indicates that the parties intend to dispose of a non-dispositive claim. In that case, the court is entitled to examine facts not offered by the parties. Article The court, based on its independent examination of the evidence, will determine which facts will be treated as proven. The court must analyze each piece of evidence separately and as a whole. The court must move the case forward quickly, at the lowest feasible expense, and without allowing the parties to use any procedural privileges to which they are entitled.

Generally, a first-instance action will include two court dates, one for the preliminary hearing and one for the trial. Suppose the court's decision relies on a finding about the existence of a right or legal connection that has not yet been made by a court or other competent entity (‘Preliminary Issues’). In that case, the court may decide independently unless otherwise required by special laws.

A judgment on a Preliminary Issue must be binding only in the specific civil action in which it is made. The same judge should hear) The first instance procedures and the reopening proceedings. Three judges will decide cases that go to a second hearing or need a rehearing.

JURISDICTION TO PROCEED IN COURT

When the court receives a claim, it must first determine whether or not it has jurisdiction over the case. In determining whether or not it has jurisdiction, the court will examine the allegations in the complaint and the facts already in its possession. If the facts and circumstances upon which the court's jurisdiction was originally founded change throughout the proceedings, the competent court at the time the complaint was filed must remain competitive.

The court must consider whether or not it has jurisdiction over the matter at hand as part of its normal procedure. The court should announce that it is not competent, nullify the acts undertaken, and reject the claim if it determines during the proceedings that another body has jurisdiction to resolve the issue. The court must ex officio declare that it is not competent, nullify the acts taken, and reject the claim if it discovers during proceedings that a court in the Federation of Bosnia and Herzegovina (does not have jurisdiction over the matter.

At all times relevant to the proceedings, each court shall ex officio give full weight to the matters within its subject matter jurisdiction. A higher court of first instance may not, upon party's objection or ex officio, declare that it has no subject matter jurisdiction for a case falling within the jurisdiction of a lower court of first instance after a defendant has responded to the complaint.

The court must judge the termination of civil (contentious) proceedings if, before a finding on the main subject matter is made, it determines that the proceedings should be handled in accordance with the norms of a non-contentious process. Once the decision has been final, the case will be processed by the appropriate court in accordance with the provisions of the streamlined, uncontested procedure.

The court may declare that it has no territorial jurisdiction upon the defendant's objection, which must be filed no later than the time of responding to the complaint. Courts in the Federation have jurisdiction over civil procedures involving foreign nationals entitled to immunity in Bosnia and Herzegovina, as well as foreign states and international organizations that are parties to such processes, according to the rules of international law.

SUBJECT MATTER JURISDICTION

It is the responsibility of the courts to make decisions in civil cases only within the extent of their subject matter jurisdiction, as defined by this legislation or another appropriate Federation law. ) The court with broad territorial jurisdiction over the defendant should be competent for the matter unless the legislation determines exclusive territorial jurisdiction of some other court.

The court with general geographical jurisdiction should be in the defendant's permanent residence territory. If the defendant does not have a fixed abode, the court with jurisdiction over the region where the defendant is temporarily residing will be the one to hear the case.

The court with territorial jurisdiction over the defendant's temporary place of residence usually has general territorial jurisdiction as well if the defendant has both a permanent and temporary place of residence and the circumstances lead to the assumption that the defendant will reside at the temporary place of residence for at least a year from the date the complaint has been filed.

HOW IS A CASE STARTED IN BOSNIA AND HERZEGOVINA

If the court receives a complaint, it must continue with the case even if the plaintiff has not provided a legal foundation for the claim. The complaint might ask the court to rule on the existence or nonexistence of a right or legal connection or the validity or untruth of a document.

The complaint must include [A.] the basis for the court's jurisdiction; [B.] a statement of claim (including the legal remedy sought by the plaintiff) with respect to the main matter and any subsidiary claims (the ‘Statement of Claim’); [C.] the facts upon which the Statement of Claim is based; 4. the evidence corroborating those facts; [D.] the value of the dispute; [E.] the legal basis for the claim; and[F.] any other information required to be included in a complaint.

Claims that are not based on the same set of facts or law may be consolidated into a single complaint against a single defendant if the court has subject matter jurisdiction over all of the claims, if all of the claims follow the same type of procedure, and if the court finds that consolidating the claims will expedite the proceedings.

If the court strikes down one of the plaintiff's claims, the other claim may be brought in the same lawsuit as an alternate Statement of Claims. Only if the court has subject matter jurisdiction over all of the claims and if the same process is required for all of the claims may be consolidated in a single complaint.

The plaintiff has the right to file an amendment to the complaint at any time before the close of the preliminary hearing or the start of the main hearing if the preliminary hearing was not conducted. The court may accept the modification of the complaint after the preliminary hearing but before the completion of the main hearing at the latest, but only if it finds that the objective of the alteration is not to prolong the proceedings and if the defendant consents to the amendment.

THE MAIN HEARING

If one of the parties transfers the property or right at issue to a third party, this does not preclude a lawsuit between the original parties. The first investigation of the complaint, delivery of the complaint to the defendant for an answer, conducting a preliminary hearing, and scheduling the main hearing are all part of the proceedings leading up to the main hearing.

In pleadings submitted before the main hearing, parties may set out the facts based on their claims and reveal evidence supporting them. While the parties are still negotiating a settlement and the court is preparing for the main hearing, the court may decide based on an admission, explicit waiver, or default.

Suppose the court determines that it lacks the authority to hear the case because of a lack of jurisdiction in the relevant geographic area or it lacks the authority to hear the case because of a lack of jurisdiction in the relevant subject area. In that case, it must issue a decision declaring it incompetent and transfer the case to another court. Suppose the court determines that it lacks enough information to rule on a question that arises during the complaint's preliminary review. In that case, it will rule on the question as soon as further evidence becomes available.

Within thirty (30) days after the court receives a proper and full complaint, the complaint and any attachments must be served on the defendant. Within thirty (30) days after receiving the complaint and any attachments, the defendant must respond in writing to the allegations against them.

RESPONSE TO THE COMPLAINT

The defendant's written answer to the complaint must include all of the material required of written pleadings, including a statement of whether or not the claim asserted in the complaint is accepted. If the defendant contests the claim, the answer must explain why, provide the legal foundation for the defendant's position, outline the facts upon which the position is founded, and provide evidence to support those facts.

A party may file a motion or conduct other procedural action before the defendant makes arguments on the main issue, but not later than when the court receives the answer to the complaint if the legislation so provides.

Each side must lay forth the relevant facts to its motions, provide evidence that backs up its claims, and then refute the other side's claims and evidence. During the main hearing, the parties may introduce new facts and fresh evidence if they can convince the court that they could not have done so during the preliminary hearing.

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Sources

1. There are 42 representatives in the House of Representatives, with 2/3 coming from the Federation and 1/3 coming from the Republika Srpska; and 15 representatives in the House of Peoples, with 5 Bosniak Representatives, 5 Croatian Representatives, and 5 Serbian representatives, with the Serbian Representative being indirectly elected by the National Assembly of the Republika Srpska and the Bosniaks Reps. And Croatian Representatives are indirectly elected by the House of Peoples of the Federation.

2. Its consociational character created a highly decentralized political system with four tiers of law-making authority (one state, two entities, ten cantons in the Federation, and Brko District).

3. A criminal court's final judgment of guilt should be binding on the civil court about the existence of criminal conduct and the criminal culpability of the offender.

4. All comments by the parties in civil actions must be given in writing before the hearing and verbally at the hearing unless the law specifies a different form of submission.

5. Actions taken and rulings rendered by the contentious civil court, including on-the-spot investigation, expert evaluation, hearing witnesses, and the like, shall not be considered null and void because they were carried out in the contentious proceedings.

6. A court in the Federation shall be competent to adjudicate such disputes when its jurisdiction arises from the provisions of this law related to territorial jurisdiction, even if the law or international agreement does not contain specific provisions on the jurisdiction of the court in the Federation for such disputes.

7. A complaint may be made if the specific rules allow it or if the plaintiff has a legitimate interest in hearing the case.

8. To amend the complaint is to change the name of the claim, add to the claim, or express a new claim in addition to the original one.

If the plaintiff changes the legal basis for the claim, reduces the claim, modifies, amends, or rectifies some facts relevant to the claim, such changes are not considered amendments to the complaint and will not be treated as such.

9. If the court determines, after a preliminary review of the complaint, that:

the adjudication of the case is not within the competence of the court;
where the law prescribes time limitations for filing such a complaint, and the complaint was not filed within the prescribed time limits;
litigation concerning the same claim is ongoing; or
a final judgment has already been rendered on the same claim, the court shall render a decision rejecting the complaint.

10. The court shall take any of the actions outlined in Article 53 of Bosnia Civil Procedure if it determines that:

A complaint is incomprehensible;
Does not contain the necessary elements prescribed by Article 53 of this law (‘Incomplete Complaint’);
Raises issues with respect to the plaintiff's or defendant's capacity to be a party in the proceedings;
Raises issues with respect to the party's legal representation or the representative's authorization to institute litigation.

11. Unless otherwise provided by this legislation, all procedures at the main hearing should be conducted orally, and evidence shall be submitted directly to the court.