Gathering Evidence in Aid of Foreign Litigation Guide |
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Serbia |
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(Europe)
Firm
JPM & Partners
Contributors
Ðorde Novcic |
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| Does your jurisdiction permit gathering evidence in aid of foreign litigation? | Serbian jurisdiction permits gathering evidence in aid of foreign litigation. |
| Is your jurisdiction a party to the Hague Evidence Convention? Are there other statutory requirements for obtaining evidence in aid of foreign litigation? Please indicate the relevant statutes. | The Republic of Serbia ratified the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”) in 2010. Next to the Hague Evidence Convention, many existing bilateral agreements, Serbia concluded with other countries, apply. The bilateral agreements are in fact to be applied on the first place, in case the appropriate circumstances are met, and, in their absence, multilateral conventions like the Hague Evidence Convention would apply. Finally, Serbian national laws like the Code on Civil Procedure and Law on Mutual Legal Assistance in Criminal Matters apply as well. |
| Do requests for gathering evidence require approval by a court or administrative body? Please indicate the appropriate forum for making such requests. | The appropriate forum for gathering evidence in aid of foreign litigation in the Republic of Serbia is First Primary Court in Belgrade and it does not need any prior approval. |
| What types of information can be sought? Requests for Documents? Written questions? Depositions? | In civil matters, Chapter XX of the Code of Civil Procedure determines allowable information in domestic matters as well as in a foreign procedures. Additionally, Article 177 of the Code of Civil Procedure envisages that the action, which is the subject of the request of a foreign court, can be undertaken in the manner prescribed by Serbian law or in the manner required by the foreign court i.e. required by foreign law if such procedure or action is not contrary to the public order of Republic of Serbia. In criminal matters, Article 83 of the Law on Mutual Legal Assistance in Criminal Matters provides the forms of mutual legal assistance which can be sought, and as such are enumerated inter alia in the exchange of notifications, delivery of objects related to the case, computer searches, depositions, etc. |
| Who bears the burden of showing whether any privileges apply? | Following Serbian legislation there is no burden of showing whether any privileges apply, it is simply on to the interrogation authority i.e. on the court to inform a witness whether he has the duty to testify or not (for example if the case refers to his close family member). When it comes to diplomatic privileges and immunities, the Code of Civil Procedure prescribes the rules of international law apply to the jurisdiction of the Serbian court over foreigners who enjoy immunity in the Republic of Serbia as well as foreign countries and international organizations. Pursuant to Serbian Court case law, jurisdictional immunity from Serbian courts is not presumed but gives the right to the foreign country or international organization to invoke this institute. |
| Does there need to be any showing that the information sought is allowable in the foreign jurisdiction in which the action is pending? | This specific question is not expressly defined by Serbian law, that being said there are no legal norms prescribing the court or any other competent body has the authority to make a decision about information being allowable or not in a foreign jurisdiction. This could be a point regulated by the bilateral convention. When it comes to Hague Evidence Convention, as the Ministry of Justice needs to issue an authorization for the accomplishment of actions referred to in Articles 16 and 17 of the Hague Evidence Convention, this could be an opportunity for the Ministry to verify the sought information is allowable in the foreign jurisdiction in which the action is pending. |
| If your jurisdiction allows depositions, may they be conducted remotely (by videoconference, Zoom etc.) | Article 245 of the Code of Civil Procedure provides that the witness can be heard by conference call, using audio or optical recording devices. Despite the existing provision, the remote hearings have never been held in practice so far. |
| Has your jurisdiction adopted any “blocking statutes” that limit the extent to which residents in your jurisdiction may give evidence in a foreign court’s civil or criminal proceedings? | With reference to criminal proceedings, gathering evidence for a foreign country must follow the general conditions provided in Article 7 of the Law on Mutual Assistance in Criminal Matters, i.e. the prohibition could be passed if gathering evidence would be deemed against public order. The witness protection rules envisaged by Serbian laws are also to be honored in both criminal and civil matters (for example, the protection of minors). |
| May citizens residing in your jurisdiction voluntarily give evidence in a foreign proceeding? If not, what procedure must be followed before they can give evidence? If such restrictions exist, are they enforced in practice? | Yes, Serbian legislation does not prohibit such an option. |
| Would your answers differ materially if the foreign proceeding is arbitration, and if so how? | Article 46 of the Law on Arbitration envisages the arbitral tribunal may request the assistance of the court in order to present evidence that is needed in arbitral proceedings. |
Gathering Evidence in Aid of Foreign Litigation Guide
Serbian jurisdiction permits gathering evidence in aid of foreign litigation.
The Republic of Serbia ratified the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”) in 2010. Next to the Hague Evidence Convention, many existing bilateral agreements, Serbia concluded with other countries, apply. The bilateral agreements are in fact to be applied on the first place, in case the appropriate circumstances are met, and, in their absence, multilateral conventions like the Hague Evidence Convention would apply. Finally, Serbian national laws like the Code on Civil Procedure and Law on Mutual Legal Assistance in Criminal Matters apply as well.
The appropriate forum for gathering evidence in aid of foreign litigation in the Republic of Serbia is First Primary Court in Belgrade and it does not need any prior approval.
In civil matters, Chapter XX of the Code of Civil Procedure determines allowable information in domestic matters as well as in a foreign procedures.
Additionally, Article 177 of the Code of Civil Procedure envisages that the action, which is the subject of the request of a foreign court, can be undertaken in the manner prescribed by Serbian law or in the manner required by the foreign court i.e. required by foreign law if such procedure or action is not contrary to the public order of Republic of Serbia.
In criminal matters, Article 83 of the Law on Mutual Legal Assistance in Criminal Matters provides the forms of mutual legal assistance which can be sought, and as such are enumerated inter alia in the exchange of notifications, delivery of objects related to the case, computer searches, depositions, etc.
Following Serbian legislation there is no burden of showing whether any privileges apply, it is simply on to the interrogation authority i.e. on the court to inform a witness whether he has the duty to testify or not (for example if the case refers to his close family member).
When it comes to diplomatic privileges and immunities, the Code of Civil Procedure prescribes the rules of international law apply to the jurisdiction of the Serbian court over foreigners who enjoy immunity in the Republic of Serbia as well as foreign countries and international organizations. Pursuant to Serbian Court case law, jurisdictional immunity from Serbian courts is not presumed but gives the right to the foreign country or international organization to invoke this institute.
This specific question is not expressly defined by Serbian law, that being said there are no legal norms prescribing the court or any other competent body has the authority to make a decision about information being allowable or not in a foreign jurisdiction. This could be a point regulated by the bilateral convention. When it comes to Hague Evidence Convention, as the Ministry of Justice needs to issue an authorization for the accomplishment of actions referred to in Articles 16 and 17 of the Hague Evidence Convention, this could be an opportunity for the Ministry to verify the sought information is allowable in the foreign jurisdiction in which the action is pending.
Article 245 of the Code of Civil Procedure provides that the witness can be heard by conference call, using audio or optical recording devices. Despite the existing provision, the remote hearings have never been held in practice so far.
With reference to criminal proceedings, gathering evidence for a foreign country must follow the general conditions provided in Article 7 of the Law on Mutual Assistance in Criminal Matters, i.e. the prohibition could be passed if gathering evidence would be deemed against public order. The witness protection rules envisaged by Serbian laws are also to be honored in both criminal and civil matters (for example, the protection of minors).
Yes, Serbian legislation does not prohibit such an option.
Article 46 of the Law on Arbitration envisages the arbitral tribunal may request the assistance of the court in order to present evidence that is needed in arbitral proceedings.