Temporary measures and preliminary measures in criminal and civil proceedings
Temporary measures in legislation are regulated both in criminal and civil proceedings by the Law on Enforcement and Security (Official Herald of RS, No. 106/2015 ).
A temporary measure may be ordered before, or in the course of, a court (both in civil and criminal proceedings as well as in an enforcement proceeding) or administrative proceeding, as well as after the termination of such a proceeding, until such time as the enforcement proceeding is conducted.
There are two types of temporary measures.
Temporary measures for securing a monetary claim
Requirements for imposing such measures are that temporary measures for securing monetary claims may be ordered if the enforcement creditor shows the probability of the existence of a claim and the risk that without such temporary measure the judgment debtor would prevent or considerably hinder satisfaction of the claim by disposing of, concealing, or otherwise making unavailable his or her property or means. The risk exists especially if the claim is to be realised abroad, if there is already an enforcement procedure against the same debtor for due instalment payments, if the paying obligations exceed the debtor’s earnings or there has been an unsuccessful enforcement procedure already against the same debtor, because he or she refused to disclose data about his or her assets, or gave false data about the assets.
Within this temporary measure the following measures may be imposed:
- prohibition on the disposal of movable property and possible confiscation of that property;
- prohibition on the disposal or mortgage of immovable property;
- order to a debtor’s debtor to pay a claim to the debtor or to hand over property, and the prohibition on the debtor to receive property, or collect a claim and dispose of it;
- order to a bank or other financial institution, with which the debtor has an account, to deny payment of an amount determined by the temporary measure;
- prohibition on the disposal and pledge of stocks and shares in the company that is the subject of the claim, and registration of such prohibition in the Central Register of securities; and
- confiscation of cash and securities and their depositing.
Temporary measures for securing a non-monetary claim
Requirements for imposing such measures are that temporary measures for securing non-monetary claims may be ordered to secure a non-monetary claim if the enforcement creditor has shown the probability of the existence of the claim and a risk that without such measure satisfaction of the claim would will be prevented or considerably hindered. A temporary measure may also be ordered when an enforcement creditor shows that the temporary measure is necessary to prevent the use of force or the infliction of irreparable damage.
Under this temporary measure, the following measures may be imposed:
- prohibition on the disposal and pledge of movable property that is the subject of the claim - confiscation of these items, and entrusting them to an execution creditor or a third party, or the safekeeping of the court;
- prohibition on the disposal or mortgage of immovable property concerning the claim, and the registration of such prohibition in the public registry;
- prohibition on taking actions that could harm the creditor;
- prohibition on making changes to the property that is the subject of the claim;
- prohibition on the debtor’s debtor to hand over property that is the subject of the claim;
- prohibition on the disposal and pledge of stocks and shares in the company that is the subject of the claim, and registration of such prohibition in the Central Register of Securities;
- order to the debtor to perform certain actions necessary to preserve the movable or immovable property, prohibit its physical alteration, damage or destruction; or
- a temporary arrangement on the dispute to eliminate the danger of violence or major irreparable damage.
In criminal proceedings, on the motion of authorised persons, temporary measures can be determined for securing the claim for damage, under the provisions of the law governing the enforcement and security, for damage that arose from the commission of a criminal offence, or unlawful acts that are prescribed by law as a criminal offence.
A decision of the court by which the temporary measure is determined must specify the duration of the temporary measure. When such a decision is made in civil proceedings before filing a lawsuit or commencing other legal proceedings, such measure must be justified by filing a lawsuit, or commencing other legal proceedings within the period set by the court.
Preliminary measures are regulated both in criminal and civil proceedings by the Law on Enforcement and Security (Official Herald of RS, Nos. 106/2015, 106/2016 and 113/2017 - authentic interpretation).
A preliminary measure shall be imposed on the basis of a decision of a domestic court on a monetary claim that has not become final or enforceable, if an enforcement creditor establishes that there is a likely risk that, without such measure, satisfaction of the claim will be impossible or made significantly more difficult.
For presumed risk, a risk is deemed to exist if the motion for security is based on one of the following decisions:
- a payment order issued because of a bill of exchange or cheque, against which timely objection has been made;
- a judgment issued in a criminal matter in which the claim is accepted, against which a repeat of the procedure is allowed;
- a decision according to which enforcement should take place abroad;
- a judicial or administrative settlement, or a notary public record of the settlement being contested in accordance with the law; or
- a judgment on the pleadings that has been appealed.
A settlement is made before a court or body deciding on the administrative procedure, contested in a manner prescribed by law.
Types of preliminary measures
The court may order the following preliminary measures:
- inventory of goods and the registration of a lien on the movable property listed in the Register of Pledges;
- seizure of monetary claims of the enforcement debtor and the acquisition of a lien on them;
- order for the National Bank of Serbia to order the banks in which the enforcement debtor has bank accounts to transfer the funds in the amount of the secured claim to the deposit of the public executor;
- prohibition of disposal of financial instruments, and registration of a lien on them in the Central Register of Securities;
- registration of a lien in favour of the enforcement creditor on shares of the enforcement debtor in a limited liability company, a partnership or limited partnership in the Register of Pledges and registration of seizure of shares in the Business Entities Register;
- seizure of a claim that an enforcement debtor has towards a third person, which consists of the debtor’s right to be handed over certain immovable or movable property, or to be delivered a certain amount of movable property, and acquisition of a lien on such claim; or
- registration of prior notice - mortgage on immovable property owned by the enforcement debtor, or on a claim of the enforcement debtor registered on immovable property.
The court may, on request of the enforcement creditor, and in accordance with the circumstances of the case, order two or more preliminary measures if necessary.
A decision imposing a preliminary measure must specify the amount of the claim that is secured with interest and costs, and the preliminary measure and its duration.
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