Recognition of a foreign decision in Serbia

Let’s imagine, for example, that John and Helena divorced in Greece. Jovan returned to live in Serbia and there after some time he met Milica, with whom he wanted to conclude a new marriage. However, Jovan cannot conclude a marriage with Milica, because he is still officially married to Helena before the Serbian authorities. Also, Jovan only has the Greek court’s divorce decision, but not the Serbian court’s decision.

Let’s imagine a different situation, Jelena and Jorgos divorced in Greece, Jelena returned to Serbia and no longer wants to bear Jorgos’s surname but wants to take her maiden name back. Jelena would have the right to return her maiden name following a shortened procedure, after the divorce, but Jelena does not have the decision of the Serbian court on divorce, but only the decision of the Greek court.

For Jovan and Jelena, the above-mentioned situations are problematic in many ways, but let’s explain just some of the possible problems that may arise. In the above situation, if the marriage between Jovan and Helena was registered in the marriage register in the Republic of Serbia, Jovan would not be able to conclude a new marriage, because officially in the Republic of Serbia, Jovan is still married, and in that situation, there is a marriage, as one of the obstacles to the conclusion of a new marriage. Similarly, if Jelena wanted to change her surname, she would not have the right to apply for a surname change through a simplified procedure, because according to the authorities of the Republic of Serbia, she is still married, but the procedure for changing her surname would have to be conducted according to the regular procedure, which it can often be long-winded and complicated.

To prevent situations like the above-mentioned examples, i.e. the same person entering two marriages or the same person having to conduct divorce proceedings in two countries, or the person not being able to change their surname due to the fact that the divorce took place abroad according to the simplified procedure, the legislation recognizes the institution of recognition of foreign court decisions.

What it means?

This means that in a special type of procedure, the court will recognize a foreign court decision and, as they say, equate it in terms of effects with a domestic decision. So, once a foreign court decision is recognized by a competent court in the Republic of Serbia, it means that it has absolutely the same legal force as if it was issued by a domestic court. That is, everything determined by the decision of a foreign court influences the territory of the Republic of Serbia.

Therefore, if you are divorced abroad or paternity has been established before a foreign country or you have concluded an agreement abroad on the exercise of parental rights, the moment that decision is recognized in the official procedure in the Republic of Serbia, it begins to produce effects in our country as well and will be considered as if you have a decision of a domestic court. With the Institute of Recognition of Foreign Court Decisions, court decisions are given extraterritorial effect.

The Law on the Resolution of Conflicts of Laws with the Regulations of Other Countries (hereinafter referred to as the ZMPP), in addition to court decisions, states that court settlements can be recognized, as well as decisions of other authorities if they are equal to court decisions in the country where they were made, if they are regulated by them status, family and property relations, i.e. other relations with a foreign element.

Therefore, it is important that in the country of origin of the decision, which is precisely the country where the decision was made, the decision has the character of a court decision, that is, a decision equal to it. For eligibility for recognition, it does not matter what the decision of a foreign authority is called (decision, verdict, decision, etc.) nor is it important the type of procedure in which the decision was made.

The procedure for recognition of a foreign court decision in the Republic of Serbia is conducted exclusively before the competent court.

The recognition procedure is initiated by the person who has a legal interest. So, if we go back to our examples from the beginning, the persons who have a legal interest in having the divorce decisions recognized in the Republic of Serbia are Jovan and Jelena.

The applicant has the obligation to submit the original decision supplied with confirmation of the legal validity of the country of origin and a translation of the original foreign decision made by a court interpreter. In addition, it is necessary to submit a certificate of the applicant’s citizenship, a birth certificate or a photocopy of the applicant’s identity card or passport, which shows the place of birth.

After the court receives a request for the recognition of a foreign court decision, it will deliver it to the other party for a statement. The opponent of the proponent of the recognition of a foreign court decision is usually the opposite party from the decision that is recognized. If we return to our examples from the beginning of the text, in the situation where Jovan submits a proposal for the recognition of a foreign court decision, the opponent of the proposer is Helena, that is, if the proposer is Jelena, the opponent of the proposer is Jorgos.

The request for recognition is decided by a decision. The court does not schedule hearings in this type of procedure, but when the conditions are met, it decides in the form of a decision. The court can issue a decision recognizing a foreign court decision or a decision rejecting its recognition. When deciding whether to recognize a foreign decision or not, the court will not review that foreign decision, but will only examine the conditions, whether that decision meets the conditions to be recognized in our country according to the provisions of our legislation.

The court’s decision can be appealed within 15 days, and the appeal is decided by the second-instance court, the Appellate Court or the Commercial Appellate Court. A question that clients often ask us is who can appeal the court’s decision, how the participants in the proceedings were the proposer and the opponent of the proposer, and whether both parties have the right to appeal.

A recognized foreign court decision takes effect from the moment the effects occur in the country where the decision was made.

The previously explained situation refers to the procedure for recognition of a foreign decision when it is initiated as a separate procedure and when the issue of recognition of a foreign decision is the main issue in the procedure. However, the issue of recognition can also be raised as a so-called previous question. For example, if there is a probate proceeding and it is necessary to determine who are the heirs behind the decedent. In some foreign countries, there is a court decision which recognized the paternity of the testator over his illegitimate son. The probate court will then, at the initiative of the illegitimate son, only for the purposes of that procedure, recognize the decision of the foreign court, which established the paternity of the deceased testator.

Therefore, there are two ways of starting the procedure for the recognition of a foreign court decision, when it is decided as the main issue and then the court decision made according to the conducted procedure has a generally binding effect and when, within the framework of a procedure, a decision is made on the recognition of a foreign court decision as a previous issue , then the court’s decision to recognize has effect only within that procedure.

This further means that when the recognition of a decision is decided as a preliminary matter, a separate procedure for the recognition of that decision can be initiated, and the recognition of which will be decided as the main matter, all because the decision on recognition as a preliminary issue does not enter the sentence of the decision and is not covered by legal force.

In practice, it will most often happen that the court decides on the recognition of the decision as a previous issue during the enforcement procedure.

Yes. An Apostille is a certificate based on which the authenticity of the signature, the characteristics of the signatory of the public document and the authenticity of the seal or stamp with which the public document is provided are determined. The Apostille seal was put into use by the Hague Convention and was intended to facilitate the procedure instead of certifying documents in international law, so a public document that is provided with this seal is exempt from any further certification and is eligible for use in all countries that are signatories to the Hague Convention. .

Therefore, the Apostille seal only confirms the authenticity of the signature and seal on the public document, so that the document does not have to be notarized separately.

However, if there is an Apostille stamp on a foreign court decision, it is not enough for that decision to be automatically applied in the Republic of Serbia, but it still must go through the court procedure of recognition of the foreign court decision, so that it can be applied in our country as well.