Kosovo: Enforcement Of Foreign Judgments 2018 (Kosovo)

1 COUNTRY FINDER

1.1 Please set out the various regimes applicable to recognising and enforcing judgments in your jurisdiction and the names of the countries to which such special regimes apply.

2 GENERAL REGIME

2.1 Absent any applicable special regime, what is the legal framework under which a foreign judgment would be recognised and enforced in your jurisdiction?

Kosovo has not yet adopted a law regarding the recognition and enforcement of foreign judgments in civil law matters and old Yugoslav law, namely the Law "On Resolving Conflict of Laws with Regulations of Other Countries" ("Official Gazette of SFRY", no. 43/82 and 72/82 – as amended) is still in force.

Judgments in criminal law matters are recognised based on the Law on International Legal Cooperation in Criminal Matters (Law no. 04/l-213).

The enforcement of foreign judgments is carried out based on the provisions of the Law on Enforcement Procedure (Law no. 04/L-139 as amended by the Law no. 05/L-118).

The Law on Courts (Law no. 03/l-199 as amended by Law no. 04/L-171 and Law no. 05/L-032) establishes the jurisdiction of the courts with regard to the recognition of foreign judgments and the provision of international legal assistance.

2.2 What constitutes a 'judgment' capable of recognition and enforcement in your jurisdiction?

A "judgment" capable of recognition and enforcement shall be considered a final and enforceable decision under the law of the country in which it was taken as well as a settlement reached before a court. In addition, a decision of another authority which is equivalent to the court decision in the country where it was taken shall also be capable for recognition and enforcement.

In criminal matters, final judgments issued by courts of other States against citizens or permanent residents of the Republic of Kosovo may be recognised and enforced in the Republic of Kosovo, if the judgment contains types of sanctions foreseen by the Kosovo Law.

2.3 What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction?

In civil law matters, a request for recognition of the foreign judgment should be submitted to the General Section of the Basic Court where the defendant/debtor resides or is located. The applicant should accompany his request for recognition with a confirmation of the competent foreign court or other authority that the decision is final and enforceable under the law of the country in which it was taken. In addition to the mentioned confirmation, the applicant must submit a declaration of enforceability of that decision under the law of the country in which it was taken.

The request for recognition should be accompanied by the foreign judgment in question and with a judicial translation of the decision into one of the Kosovo official languages (i.e. Albanian and Serbian), if it is in a foreign language.

In criminal matters, the procedure for recognition and enforcement may be initiated on the basis of a written request received by the Ministry of Justice. The request should be accompanied by the original or a certified copy of the foreign judgment and any other relevant documents. If the foreign judgment is in a foreign language, a judicial translation in one of the Kosovo official languages should also be submitted to court.

After reviewing the formal requirements of the request, the Ministry of Justice shall transmit it, together with the supporting documents received, to the competent court. The competent court to decide on the request for recognition and enforcement is the Basic Court in the territory where the sentenced person resides or is located. In case the residence or location of the person cannot be determined, the Basic Court of Pristina shall be competent.

2.4 What (if any) connection to the jurisdiction is required for your courts to accept jurisdiction for recognition and enforcement of a foreign judgment?

Such a connection is not explicitly provided by law. In criminal matters, foreign judgments submitted for recognition and enforcement should regard citizens or permanent residents of the Republic of Kosovo.

2.5 Is there a difference between recognition and enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively?

The process of recognition of the foreign judgments and the enforcement of such judgments usually includes two individual legal proceedings, namely the process of recognition and the process of execution. The purpose of recognition of a foreign judgment is to make such judgment equal to a judgment of a Kosovo court, i.e. to produce legal effects in the Republic of Kosovo. In this regard, foreign judgments need to be recognised in the territory of the Republic of Kosovo by the competent court before they can be enforced. Once recognised by Kosovo courts, foreign judgments constitute enforcement titles based on which the applicant may initiate the enforcement procedure.

2.6 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction.

The applicant should submit a request to the competent court Basic Court to recognise and declare enforceable the foreign judgment in the territory of the Republic of Kosovo.

The foreign judgment, which has been recognised and declared enforceable within the territory of the Republic of Kosovo is considered an enforcement document based on which the applicant may initiate the enforcement procedure. The enforcement procedure is conducted by the court or private bailiff when the applicant files the enforcement proposal.

Upon the proposal of the applicant, the court or private bailiff issues an enforcement decision/order within seven days from the receipt of the proposal. The other party may object and appeal such decision/order; and the enforcement is applied after the decision on enforcement becomes final (i.e. if the debtor does not object or after the procedure pursuant to the legal remedies, objection and appeal, is finished).

2.7 On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge be made?

In civil matters, the judgment can be challenged on procedural aspects based on an objection submitted by the person against whom the decision is taken, such as:

• the party against whom the decision was taken was not able to participate in proceedings because of the irregularity in proceedings, which include the failure to notify the party regarding the commencement of the proceedings;
• if there is exclusive jurisdiction of the court or other State body in Kosovo regarding the matter in question (this does not apply in cases when the defendant is seeking the recognition of a court decision given in a marital dispute or if the prosecutor is seeking, and the defendant does not oppose, the exclusive jurisdiction of the court in Kosovo);
• if the Kosovo court or other authority has issued a final decision in the same matter or if Kosovo courts recognised another foreign judicial judgment that was taken in the same matter;
• is against the public order in Kosovo;
• if there is no reciprocity, which is presumed unless proven otherwise (the lack of reciprocity is not an obstacle for recognition of a foreign judgment made in a marital dispute and in a dispute to establish the paternity or maternity, as all in cases when the recognition of a foreign judgment is requested by a Kosovo citizen); or
• the foreign judgment is not final and enforceable. In criminal matters, the court shall refuse the recognition and enforcement of a foreign judgment in one of the following situations:
• the enforcement would be contrary to the fundamental principles of the legal system of the Republic of Kosovo;
• the offence for which the sentence was rendered is of a political nature or military one;
• there are substantial grounds to believe that the judgment was rendered on considerations of race, religion, nationality or political opinion;
• the offence on which the foreign judgment is based is already subject to a final judgment or proceedings in the Republic of Kosovo;
• under national law, the enforcement of the sanction cannot be executed due to statutory limitation or the sanction has been pardoned; and
• the judgment was rendered in absentia, unless the requesting State provides supporting information that, according to its law, the person was summoned or otherwise informed personally via a competent representative, of the time and place of the proceedings which resulted in the judgment rendered in absentia, or that the person has indicated to a competent authority of the requesting State that he or she does not contest the case, or did not request a retrial or filed an appeal. If the requesting State fails to provide the supporting information, judgments rendered in absentia may be recognised and enforced if the person has been provided with the possibility to make an opposition to the judgment and the person did not file an objection within 20 days.

2.8 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments relating to specific subject matters?

Foreign judgments relating to personal status of a citizen of the country in which the judgment was taken shall not be subject to review by the Court regarding the exclusive jurisdiction of the Kosovo court or other State authority, regarding the contradiction with the public order and regarding the reciprocity.

If the foreign judgment relates to the personal status of a Kosovo citizen, such a judgment, in order to be recognised, is subject to review of whether the applicant has submitted a declaration of finality of that decision under the law of the country in which it was rendered and whether there is reciprocity.

2.9 What is your court's approach to recognition and enforcement of a foreign judgment when there is: (a) a conflicting local judgment between the parties relating to the same issue; or (b) local proceedings pending between the parties?

In civil matters, a foreign judgment shall not be recognised, if the Kosovo court or other authority has issued a final decision in the same matter or if the Kosovo courts recognised another foreign judicial judgment that was taken in the same matter. In case there

are proceedings pending between parties before local courts, the court will suspend the procedure of recognition of the court until those local proceedings are completed.

Likewise, in criminal matters, the court shall refuse the recognition and enforcement of a foreign judgment, if the offence on which the foreign judgment is based is already subject to a final judgment or proceedings in the Republic of Kosovo.

2.10 What is your court's approach to recognition and enforcement of a foreign judgment when there is a conflicting local law or prior judgment on the same or a similar issue, but between different parties?

In civil matters and criminal matters, a conflicting local law or prior judgment on the same or a similar issue, but between different parties, is not considered by law as a reason to challenge the recognition and enforcement of a foreign judgment, unless it regards a violation of public interest.

However, if the sanction imposed by a foreign judgment in a criminal matter is not in accordance with Kosovo law, the Court may adapt the sanction only where that sanction exceeds the maximum punishment provided for similar offences under the Kosovo law. If the sanction imposed by the foreign court is less than the minimum which may be imposed under the Kosovo law, the court shall not be bound by the minimum provided by Kosovo law and shall impose a sanction corresponding to the sanction imposed in the State in which the judgment was taken.

2.11 What is your court's approach to recognition and enforcement of a foreign judgment that purports to apply the law of your country?

The recognition process by the Kosovo court does not consider the merits of the foreign judgment, including the interpretation of Kosovo Law by foreign court or other authority, but rather procedural aspects required for recognition. However, if a foreign judgment is in contradiction with the fundamental principles of the legal system of the Republic of Kosovo, the court shall refuse the recognition of such foreign judgment.

2.12 Are there any differences in the rules and procedure of recognition and enforcement between the various states/regions/provinces in your country? Please explain.

There are no such different rules.

2.13 What is the relevant limitation period to recognise and enforce a foreign judgment?

The limitation period should be assessed under the law governing the foreign judgment. Kosovo law provides a 10-year limitation period for all claims determined by a final court decision or by another relevant authority or through settlement before the court or another relevant authority including those for which a shorter period is stipulated by the statute of limitations. However, periodic claims originating from such decisions or settlements and falling due in the future shall become statute-barred after three years.

The limitation period shall be calculated from the first day after the day the applicant held the right to demand the performance of the obligation, unless stipulated otherwise by law for individual cases.

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Previously published by The International Comparative Legal Guide to: Enforcement of Foreign Judgements; published by Global Legal Group Ltd, London

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.