🇷🇸 Serbia

13    SERBIA

13.1    LEGAL FRAMEWORK

Serbian procedural jurisprudence is divided into the Law on Civil Procedure [17] and the Law on Criminal Procedure [18] that create the general frame for court proceedings.  Certain specific procedural aspects of IP litigation are governed by Laws that regulate particular IP rights.  Serbian courts are further governed by the Law on Organization of Courts[19]  and the Law on Seats and Areas of Competence of Courts[20] .  Serbia is not yet a member of the European Union, and therefore, EU laws and regulations are not applicable in this jurisdiction. Nevertheless, Serbia actively harmonize its laws with EU legal system.

13.2    MAIN PRINCIPLES

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

  1. Civil procedure is, in general, governed by the Law on Civil Procedure. Since 2014, all IP litigation cases are subject to the exclusive jurisdiction of only two first-instance courts – The Higher Court in Belgrade and the Commercial Court in Belgrade. These two courts are exclusively entitled to resolve first-instance IP disputes for the whole territory of the Republic of Serbia. The Higher Court is a court of first instance for disputes between natural persons, and decisions of second instance are made by the Court of Appeal. In disputes between legal entities and entrepreneurs, the Court of Commerce is the first-instance court, and the Commercial Court of Appeal has second-instance jurisdiction. The Supreme Cassation Court handles extraordinary legal remedies against the decisions of all courts in the Republic of Serbia and resolves other issues prescribed by law.
  2. Serbian courts are not legally bound by previous judgments. Nevertheless, the Supreme Cassation Court, as well as the courts of appeals publish their opinions to provide guidance for lower courts. Moreover, the Supreme Cassation Court has a duty to harmonize the administration of justice within the Serbian judiciary system, mainly by means of rendering uniformity of decisions.
  3. Before commencing a civil action, sending a cease and desist letter (hereinafter: C&D Letter) is not an obligatory step, but it is recommendable in all legal disputes, both between business entities and natural persons. 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 result in an unfavorable outcome.
  4. The official language of the proceedings is Serbian with certain exceptions in respect to the languages of national minorities. In the event that a party does not speak Serbian or where the documents and evidences are presented in languages different from Serbian, the assistance of the Court appointed translators is obligatory.

13.3    IMPORTANT MILESTONES OF A TRIAL

13.3.1    First instance procedure and judgment

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, while the dispute formally exists from the moment when the complaint is delivered to the defendant. The parties may represent themselves or may be represented 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, which means that the Court checks whether all obligatory requirements are fulfilled. If a complaint submitted by an Attorney at Law contains formal deficiencies, it will be immediately rejected. On the other hand, if the complaint is submitted by a pro se plaintiff, the Court will allow correction of deficiencies, within a certain deadline.

Fifteen days upon receiving the complaint, the Court will deliver the same to the defendant for a response which must be submitted within 30 days of receipt of the complaint.

Afterwards, the Court will schedule a preliminary hearing. It is an obligatory step of the proceedings, which can be excluded only in certain events, as defined by law. At the preliminary hearing, both parties are invited to state all the necessary facts, to propose evidence, to state an opinion about the allegations of the adverse party and to suggest a time frame for the duration of the proceedings. The law is rather strict about presenting the 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 moment when the preliminary hearing was held). Upon the conclusion of the preliminary hearing, the Court will define the time frame of the proceedings and schedule the main hearing.

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 base 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 judgment. Besides ruling on the merits of the case, the Court will also decide which party will bear the costs of the proceedings.

13.3.2    The Appeal

First instance judgments can always be appealed by submitting the written appeal within 15 days 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 and errors in the first-instance proceedings.

13.3.3    Revision (Supreme Cassation Court)

A request for revision can be filed with the Supreme Cassation Court (through the Court who issued the first-instance judgment) within 30 days after the judgment has been delivered to the party. The revision can be filed due to both procedural and material omissions in the proceedings. However, the list of particular omissions which might be a base for revision is narrower than the reasons for appeal.

In civil proceedings related to the protection of IP rights, revision is always allowed.

The revision must be filed by an Attorney at Law, or otherwise the same will be rejected. Likewise, the party must be represented by an Attorney at Law during the entire revision proceedings. This is one of the few exceptions when a party cannot represent itself before judicial authorities.

13.4    PROCEDURAL COSTS

The costs of the proceedings are, in principle, imposed on the losing party by the Court. However, the Court can waive the costs, if the party has no resources or its financial situation cannot endure such costs (upon the party’s request). Also, the Court can order the payment of only a part of the costs, in situations where the winning party caused some of the costs, or the costs are inequitable or unjustified. Finally, in situations where the party has partially succeeded in the proceedings, the Court has the liberty to decide that each party can bear its own costs or that each party will bear a certain percentage of the costs.

The official fees are determined in accordance with the Law on Court Fees.  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.

Attorney’s 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 recommended to consult with the attorney on all potential costs of the proceedings before initiating the same.

13.5    PRELIMINARY INJUNCTION PROCEEDINGS

In cases of urgency, an interested party can seek a preliminary injunction (hereinafter: PI), as 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 30 days of the date when the decision on acceptance of PI has been rendered.

In general, the PI is governed by the Law on Enforcement and Security  but specific rules related to IP rights are governed by specific laws (e.g. Law on Patents, Law on Trademarks, etc.). The content of the PI differs depending on the type of right.

Notwithstanding the specific character of each IP right, the following are generally the most common forms of PI relief in the Serbian legal system: 1) seizure or removal from the market of the infringing products; 2) seizure or removal from the market of the means (equipment, tools) used in the creation of the infringing products; 3) prohibition of the infringing actions.

The party seeking issuance of a PI must demonstrate probable that the infringement did occur, or in some exceptional cases (e.g. related to Industrial design) that there is a severe risk for the infringement to occur.

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

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

13.6    CRIMINAL PROCEEDINGS

The criminal procedure is governed by Law on Criminal Procedures. The main characteristics of these procedures are the following:

Unlike in civil proceedings, where only two courts are competent for dealing with IP matters, in criminal proceedings the general rules of competence apply. The first-instance courts are divided into the Basic Courts and the Higher Courts, while the second-instance tier is divided into the Higher Courts and the Courts of Appeal. The competence of each particular court depends on the nature of the criminal act and the 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 procedure, but there are certain mechanisms that enable a more active role in the proceedings. The injured party can assume the prosecutor’s place in the procedure, as subsequent prosecutor, if the prosecutor withdraws from the case. However, the prosecutor may also decide to continue the prosecution and to reestablish its procedural role.

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: 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.

[17] Official Gazette of Republic of Serbia, Nos. 72/2011, 49/2013, 74/2013 and 55/2014.

[18] Official Gazette of Republic of Serbia, Nos. 72/2011, 101/2011, 121/2012, 32/2013, 45/2013 and 55/2014.

[19] Official Gazette of Republic of Serbia, Nos. 116/2008, 104/2009, 101/2010, 31/2011, 78/2011 101/2011, 101/2013, 106/2015, 40/2015, 13/2016 and 108/2016.

[20] Official Gazette of Republic of Serbia, No. 101/2013.

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