Education & Training

Monday, 26 May 2014

Completed Second Cycle of Seminars for Judges and Judicial Associates about Implementation of the Law on Non-Contentious Procedure

During April and May 2014, after more than a year and a half since the adoption of the Law on Amendments to the Law on Non-Contentious Procedure, which prescribes the procedure for determining the date and place of birth, the second cycle of seminars for judges and judicial associates on the implementation of the Law was held. The seminars, like the year before, were held in Novi Sad, Kragujevac, Niš and Belgrade, organised by the Ministry of Public Administration and Local Self-Government and the Judicial Academy, in cooperation with the Protector of Citizens, the Office of the United Nations High Commissioner for Refugees and Praxis.

The seminar programme was designed in a way to inform judges and judicial associates, in the introductory part, about the results achieved in relation with the implementation of the laws of importance for registration into birth registry books - the Law on Registry Books and the Law on Non-Contentious Procedure; to this end, presentations were given by representatives of the Ministry of Public Administration and Local Self-Government, the Protector of Citizens and the Office of the United Nations High Commissioner for Refugees. The participants were reminded of reasons for prescribing the procedure for determining the date and place of birth, and they were presented other activities undertaken in the framework of the Technical Group for the purpose of solving problems of legally invisible persons. The speakers noted that all indicators suggested that prescribing a special court procedure had yielded the expected results. In this regard, Deputy Protector of Citizens for national minorities emphasised in the seminars that even the number of complaints related to the problems faced by legally invisible persons in registering into birth registry books had been considerably reduced, which, in his opinion, suggested that they exercised their rights effectively in court procedures.

In the second part of the seminar, Nikola Bodiroga, PhD, Associate Professor of the Faculty of Law in Belgrade, spoke about the procedure of determining the date and place of birth, with particular reference to the provisions interpreted in different ways in practice, highlighting also the problems observed in the application of the Law. The presentation was supported by concrete examples from the work of Praxis and constituted a good basis for discussion with the judges who attended the seminar. In particular, he stressed the possibility of submitting a joint request of several persons, being more cost-effective due to identical factual situation, but also pointed to the fact that this was a way to avoid a legal vacuum and solve the problem of registration into birth registry books for more family members at the same time. It was pointed that, again for the reasons of cost-effectiveness and expediency, judges should not convene "preparatory hearings" for the purpose of hearing legally invisible persons, and only then request reports from the competent administration authorities, but in accordance with the provisions regulating the procedure, they should convene hearings only upon receiving necessary information from these authorities.

Responding to one of the problems encountered in practice, which relates to who can be a witness in the procedure, the lecturer pointed out that witnesses may be the relatives of legally invisible persons and that they may not necessarily be those who attended the birth of the requesting parties, which was contrary to the practice of some courts that insisted on hearing non-relative witnesses and persons who attended the birth. It was reiterated that the hearing was mandatory under the provisions regulating the procedure, and that in situations where a legally invisible person was abroad, the provisions on international legal assistance applied, or where possible, the provisions of the Law on Civil Procedure envisaged the hearing by a conference call. The judges were informed about the situations in practice where the requesting parties had received warning notices to pay the costs of expertise, which was contrary to the Law, since it strictly provided that the costs of expertise in determining the date and place of birth was paid from the court budget. Another practical problem referred to the delivery of decision to the competent registrar, and the judges were particularly urged prepare and deliver to the registrar a written copy of decision and not a transcript of the hearing, which occurred in practice. At the end of the presentation, the judges’ attention was drawn to the fact that deadlines were usually not respected, and that in addition to the difficulties caused by waiting for the responses of competent authorities, the reasons for this, in some cases, could be found in non-compliance with the order of stages in the procedure.

The final part of the seminar consisted of discussion about the problems identified in the introductory presentations and the presentation of existing practices and dilemmas of judges related to the conducting of procedure. In addition to confirming that they had problems in meeting the deadlines, the participants mentioned the problem of difficult delivery and pointed out that it happened in practice that the requesting parties stated only their name and surname and since they were not registered in birth registry books, the judge lacked sufficient information and did not know from which administration authority to request information about a person and was therefore compelled to first convene a hearing, although being aware that it meant a longer procedure. One of the practical suggestions for the solution of such situations was to provide the registry offices of all courts with a kind of leaflet that would be available to interested parties to inform them about which data a request for determining the date and place of birth should contain. In addition, there were questions as to whether the procedure could be conducted for persons born in the territory of Croatia or Macedonia and how to treat birth certificates issued in the territory of Kosovo. Practical questions were related to the role of expert witness in this procedure, while frequent difficulties in communicating with the requesting parties at the hearing were also mentioned. Although some questions remained open, the gathering was an opportunity to exchange opinions and practices of judges. The participants’ evaluation of the seminar organisation, in terms of its content and usability, was mainly positive.

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Praxis means action
Praxis means action