Some proposals that should be included when drafting the Civil Procedure Code
Written by: Dr.sc Rafet Haxhaj
The Civil Procedure Code is in the drafting phase. Due to its importance, both for the work of the courts and for other participants in the procedure, we are providing some proposals that we believe should be taken into account at this drafting stage, while we will try to give our opinion on other details after we have learned the content of the first draft of this code.
The Code of Civil Procedure sets mandatory rules, the same and equal, for the adjudication of civil disputes and other disputes provided for in this Code and in separate laws. Through these rules, the court applies the material law on the concrete life situation regulated by the material-legal norm, in the case in which the need has arisen for the court to act, in order to protect or realize the subjective right civil.
The Civil Procedure Code in Kosovo is in the drafting phase. There is very little information so far about what this code contains. Since its importance is indisputable both for the work of the courts and for other participants in civil judicial proceedings, we see it reasonable to provide some proposals that we believe should be taken into account and included in the drafting process.
The proposals are as follows:
Judicial decisions must be rendered "IN THE NAME OF THE REPUBLIC".
In article 1 paragraph 2 of the Constitution of the Republic of Kosovo it is determined that:
"The Republic of Kosovo is a state of its citizens. The Republic of Kosovo exercises its authority based on respect for the rights and freedoms of its citizens and all individuals within its borders." From this we think that the republic represents the symbol of justice for its citizens and guarantees them such a thing.
Extend the deadline for correcting and supplementing submissions from three days as stipulated by the current law (Article 102.1), to 10 or 15 days. Such a longer deadline, as stipulated by law, would not only ensure that the party in the procedure has sufficient time to correct or supplement the submission, but such a submission would also be well-drafted and more substantial. This would also be in the best interest of the contested process itself, because it would also contribute to the smooth running of this process.
To extend the deadline for filing an appeal from 15 to 30 days, while in special contested procedures from 7 to 15 days. We believe that such a deadline would be necessary so that the party in the procedure has sufficient time to draft the appeal and to submit appeals of the highest quality to the courts.
To regulate and standardize the legal situation of withdrawing the lawsuit, when the case is under appeal in the second instance court. In judicial practice, in many cases, the plaintiff has withdrawn the lawsuit even when the case was under appeal in the second instance court. The Law on Contested Procedure has not regulated this legal situation.
To reduce the procedure in cases of determining measures to secure the claim. We estimate that the procedure, the method of determination and the time for which the measure should be determined, should be as short as possible. The current procedure, according to which two types of measures have been foreseen, either temporary measure, EITHER insurance measure, has taken a lot of time for the courts, including the appeal stage before the court of second instance. We believe that in these cases there should be only one measure, and it should be temporary measure, while the method of its appointment shall be suitably the same as in the procedure before the Constitutional Court.
In court decisions, the names of judgments should be removed. In the Law on Contested Procedure, in addition to the ordinary judgment, several judgments with names were also provided for, such as: partial judgment, judgment based on affirmation, judgment based on waiver of the claim, judgment due to inaudibility (non-compliance), judgment due to absence, judgment without a main hearing of the case, etc. We estimate that such designations represent something outdated. The court decision - judgment, should be designated only as Judgment, while the law should only provide for legal situations when it can be decided by judgment.
Te repeating the procedure as an extraordinary means of striking down judicial decisions, to be regulated by law, the legal situation when repetition is required regarding the decision issued by the Supreme Court of Kosovo. Even this legal situation was not regulated by the Law on Dispute Procedure.
Ps Rafet Haxhaj is a judge at the Court of Appeals. The views and opinions expressed in this article are solely those of the author and do not necessarily reflect the position of the court in which he works.
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