🇧🇦 Bosnia and Herzegovina

4         BOSNIA AND HERZEGOVINA

4.1         LEGAL FRAMEWORK

Bosnia and Herzegovina is a complex country which consists of three political entities: Federation of Bosnia and Herzegovina, Republic of Srpska and Brcko District. As a consequence, civil procedure in Bosnia and Herzegovina is governed by the Law on Civil Procedure of the Federation of Bosnia and Herzegovina[9] ,  the Law on Civil Procedure of the Republic of Srpska[10] ,  and the Law on Civil Procedure of Brcko District[11] ,  whereas criminal procedure is governed by the Law on Criminal Procedure of Bosnia and Herzegovina[12],  the Law on Criminal Procedure of the Federation of Bosnia and Herzegovina [13], the Law on Criminal Procedure of the Republic of Srpska[14]  and the Law on Criminal Procedure of Brcko District[15].  The organization and competence of the courts are governed by the Laws on Civil Procedure, as well as the Laws on Criminal Procedure. Bosnia and Herzegovina is not yet a member of the European Union, and therefore, the EU laws and regulations are not applicable in this jurisdiction.

4.2         MAIN PRINCIPLES

The main principles of civil procedure can be summarized as follows:

  1. a) Civil Law procedure is governed by the Law on Civil Procedure that differs for each entity. Likewise, each entity has its own system of courts. In the Federation of Bosnia and Herzegovina, IP related cases are handled in the first instance by the Municipal Courts and by the Cantonal Courts in the second instance. In the Republic of Srpska, IP related cases are handled in the first instance by the District Commercial Courts and by the Higher Commercial Courts in the second instance. In Brcko District, IP related cases are handled in the first instance by the Basic Court and by the Court of Appeal in the second instance. The Supreme Court of the Federation of Bosnia and Herzegovina handles extraordinary legal remedies against the decisions of all courts from its territorial jurisdictions, while the Supreme Court of the Republic of Srpska handles extraordinary legal remedies against the decisions of all courts from its own jurisdiction.
  2. b) Bosnian courts are not legally bound by previous judgments. Nevertheless, the Supreme Court and the second-instance courts publish their decisions to provide guidance for lower courts. These courts tend to harmonize the administration of justice within the Bosnian judiciary system, mainly by means of rendering uniformity of decisions. However, since the legal system is split between three entities, in practice, this is sometimes rather difficult to achieve.
  3. c) Sending a cease and desist letter (hereinafter: C&D Letter) is not an obligatory step before commencing a civil action, but it is certainly recommendable. Sending such a letter would show an effort of the right holder to open a dialogue and its dedication to resolve the dispute amicably. Moreover, it is not a rare situation (especially in IP infringement cases) that the adverse party is willing to comply with the demands from the C&D Letter in order to avoid expensive and time-consuming litigation which would likely lead to an unfavorable outcome.
  4. d) The official languages of the proceedings are Serbian, Bosnian and Croatian. In the event that a party does not speak any of the three official languages or where the documents and evidences are presented in languages different from the official languages, the assistance of the Court appointed translators is obligatory.

4.3         IMPORTANT MILESTONES OF A TRIAL

4.3.1        First instance procedure and judgement

The trial must be initiated before the competent courts of first instance. A case is initially introduced when the plaintiff submits the written complaint to the competent court. The parties may be represented pro se or by an Attorney at Law (there are also several additional exceptions related to representation that are not in the scope of this article).

As soon as the complaint is received, the Court will perform a formal examination of the same, in which the Court checks whether all obligatory requirements are fulfilled. If the complaint contains some formal deficiencies, the Court will allow correction thereof, within a certain deadline.

Thirty days upon receiving the complaint, the Court will deliver the same to the defendant for a response which the defendant must submit within 30 days.

Afterwards, the Court will schedule a preliminary hearing which is an obligatory step of the proceedings. At the preliminary hearing, both parties are invited to state all the necessary facts, to propose evidence and to state an opinion about the allegations of the adverse party. The law is rather strict about presenting evidence after the preliminary hearing is concluded, and late presentation of the same will be allowed only when exceptional reasons exist (e.g. the party was not aware of the existence of evidence at the time the preliminary hearing was held). Upon the conclusion of the preliminary hearing, the Court will schedule the main hearing (i.e. trial).

The main hearing represents the main stage of the proceedings in which the merits of the dispute are discussed. Although intended to be held as one hearing, in practice it is commonly divided into several hearings. At the main hearing, all evidence accepted by the Court in the preliminary hearing will be presented. Additionally, the parties will present their arguments in order to enable the Court to make a conclusion as the basis for the decision.

Regarding the evidence, many various types are admissible (witness testimony, expert opinion etc.), but in most cases, the evidence is presented to the Court in the form of written documents. Unless the law provides otherwise, the burden of proof lies with the party which claims the existence of fact necessary for the establishing and/or enforcing of certain right.

When the Court considers that the legal matter has been thoroughly discussed and clarified, so that the decision can be rendered, it will close the main hearing. Upon the closure of the main hearing, the Court will render the judgement. Besides deciding on the merits of the case, the Court will also decide on the costs of the proceedings.

4.3.2        The Appeal

First instance judgements can always be appealed by submitting the written appeal within 15 or 30 days (depending on the entity) following the date of delivery of the written judgment. As a general rule, new evidence and new facts may be presented only if the party submitting the appeal becomes aware of such facts or evidence after the conclusion of the main hearing in the first instance proceedings. The judgment may be appealed in respect of both procedural and substantive omissions in the first-instance proceedings.

4.3.3        Revision (Supreme Court)

A request for revision can be filed with the Supreme Court within 15 or 30 days (depending on the entity) after the decision has been delivered to the party. The revision can be filed due to both procedural and substantive omissions in the proceedings. However, the list of particular omissions which might be a basis for revision is narrower than the reasons for appeal.

There are no specific rules for revision for IP related disputes, so the general principles apply.

In the revision proceedings, the party must be represented by an Attorney at Law, or if the party is a natural person who has passed the bar exam, he or she can represent himself or herself.  An employee of a legal entity who has passed the bar exam can also represent that entity in revision proceedings.

4.4         PROCEDURAL COSTS

The costs of the proceedings are, in principle, imposed on the losing party by the Court. However, the Court can waive all or part of the costs, if the party has no resources or its financial situation cannot endure such costs (upon the party’s request). In situations where the party has partially succeeded in the proceedings, the Court will decide the percentage of the costs that each party will bear.

The official fees are determined in accordance with the Law on Court Fees (each political entity has its own Law).  The fees in each particular case will depend on the value of the legal matter they are related to. Moreover, the costs differ for civil and criminal proceedings.

Attorneys’ fees can vary depending on the complexity of the case, its length, the number of activities undertaken and other particulars of each case. It is therefore recommendable to consult with the attorney on all potential costs of the proceedings before initiating the same.

4.5         PRELIMINARY INJUNCTION PROCEEDINGS

In cases of urgency, an interested party can seek a preliminary injunction (hereinafter: PI), in order to provide provisional, but immediate legal protection. The request can be submitted to the competent Court during the proceedings, but also before the proceedings are initiated – under the condition that the complaint will be filed within a certain deadline from the date on which the decision granting the PI was rendered.

In general, preliminary injunctions are governed by the Laws on Civil Procedure, but specific rules related to IP rights are promulgated by their individual, related laws (e.g. Law on Patents, Law on Trademarks, etc.). The content of the PI can vary according to the type of right at issue.

The specific character of each IP right notwithstanding, we can underline the following as the most common PI remedies in the Bosnian legal system: 1) seizure or removal from the market of the infringing products; 2) seizure of the means (equipment, tools) used in the creation of the infringing products; 3) prohibition of continuation of the infringing actions.

The party that seeks issuance of the PI bears the burden of proof that the infringement did occur, and it must justify the issuance of the same.

If an appeal is filed against the decision granting the PI, the same does not stay the enforcement of the PI.

In exceptional circumstances, the court will allow the issuance of an ex parte PI.

4.6         CRIMINAL PROCEEDINGS

Bosnia and Herzegovina and each other political entity have their own Laws on Criminal Procedure. The common characteristics of these procedures are the following:

The general rules for the territorial and material competence of the courts is applicable for criminal proceedings. The competence of each particular court depends on the nature of the criminal act and prescribed penalty for the same.

Criminal proceedings commence with the investigation. The investigating authorities (i.e. police) conduct the investigation upon the order of the prosecutor and under his or her supervision. In most cases, the injured party has no control over the criminal proceedings, but there are certain mechanisms that enable a more active role in the case. The injured party cannot assume the prosecutor’s place in any circumstance, but the prosecutor’s decision to withdraw from the case can be appealed by the injured party.

If the evidence collected during the investigation confirms the guilt of the defendant beyond a reasonable doubt, the prosecutor files an indictment and represents the charge before the competent court.

The court may proceed only upon an indictment and is restricted by its contents: the court may only establish the criminal liability of the person against whom the accusatory instrument was filed, and may only consider acts contained in the instrument. For that reason, the prosecutor is entitled to amend the indictment and the legal qualification of the criminal charges throughout the proceedings.

[1] A detailed report on the references for a preliminary ruling from Austrian courts between 2009 and 2012 can be found under https://www.ris.bka.gv.at/Dokumente/Ebmj/ERL_07_000_20120109_001_15116EU_1_EU_12/07_20120109_15116EU1EU12_01.pdf (German only).

[2] Austrian Supreme Court on 13.02.2007, 4Ob246/06i.

[3] Austrian Supreme Court on 24. 2. 1998, 4 Ob 36/98t.

[4] Austrian Supreme Court on 19.12.2005, 4 Ob 194/05s.

[5] http://www.AustrianSupremeCourt.gv.at/files/documents/taetigkeitsberichte/taetigkeitsbericht2012.pdf (in German only).

[6] Austrian Supreme Court on 22.2.2007, 3 Ob 253/06m.

[7] Austrian Supreme Court on 9.8.2006, 4 Ob 138/06g.

[8] Unjustified warning letters may be lead to (counter) actions based on the Austrian Unfair Competition Act  and to cost reimbursement claims based on Austrian tort law.

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