What would you do if someone owed you €10 and did not pay you back? Would you take that person to court or would you forget about it? What if it was €1000? Given the time and resources required to settle a dispute of any value, when is it justified to try resolving low-value disputes?
In any country, judges are among the most qualified and highest paid public officials. Their time is valuable. Policy-makers go to great lengths to utilize that time wisely, making sure it is spent in the most efficient way possible. To this end, small claims procedures are designed to be lighter, simpler and cheaper than the general ones - the rationale being that one should not engage the ‘heavy artillery’ of civil litigation for disputes of minor value. Of course, simplifications do not benefit only the judge. They also spare the time and money of litigants.
In Bosnia and Herzegovina (BiH), any litigation with a value below €2550 qualifies as a small claim, meaning the small claims track is overwhelmed – with many cases well disputing sums far less than this threshold. Nonetheless, every step of the way for these cases requires an inordinate amount of time and effort.
A party wishing to file a low-value claim needs to check the rules on court fees – as each one of BiH’s 13 jurisdictions has its own fee schedule. Alternatively, one can simply omit payment and let the court do the job for them and provide instructions on how much to pay. To make sure the court fee is paid, a judge needs to check three times within a single case, because there are separate fees for the claim, the defendant’s response, and the judgment. If the fee is not paid, the judge still needs to review the case and, later, engage more state resources to collect any unpaid fees.
Hearings and evidence collection in low-value cases cost just as much time and money as in larger ones. If examining invoices is required, for example, a court expert may need to be engaged for an expert opinion, even for a dispute of €10. Given all the hurdles of litigation, judgments do not come fast. Data shows that in the Municipal Court of Tuzla, completing a low-value case, may take more than 2300 days, compared to an average disposition time of 233 days for first-instance civil and commercial cases in other Council of Europe countries.
Finally, if one of the parties is unhappy with the judgment and appeals, three appellate judges would review the case at the higher court, to ensure the highest standard of justice.
Given the situations described above, it is understandable to think that maybe BiH does not have a small claims procedure - which is why judicial resources are easily squandered. However, this is not the case: BiH’s small claims procedure has been in place since 2003. Unfortunately, this is not resulting in quicker or cheaper justice.
The BiH Commercial Justice Technical Assistance Project, financed by the UK and implemented by WB, aimed to find out why this is the case. According to some of the findings from this report, small claims procedures in BiH are nearly identical to general procedures. Simplifications are minimal and they cannot produce the desired savings of time and resources. To mend this situation, the project proposes a menu of simplifications that could help speed up low-value litigation, such as:
- Unify the rules on court fees across the country;
- Require the payment of a single court fee prior to commencing litigation;
- Allow for a fully written procedure avoiding a hearing altogether, unless one of the parties specifically requests it;
- Introduce a stricter relevance assessment in small value of cases, for example by limiting the number of witnesses or expert assessments when their cost would exceed the value of the claim;
- Simplify the form of evidence to allow for written witness statements and written expert assessments, where appropriate;
- Simplify the content of the judgment in small value disputes;
- To ease that burden on second-instance courts, stipulate that appeals to small value judgments should be heard by a single judge rather than a panel of three.
These reforms are based on the premise that only meaningful simplifications to the procedure can achieve measurable results.
Find out more findings and recommendations here: Fast-Tracking Small Claims in Bosnia and Herzegovina: A Comparative Analysis and Reform Proposals (EN) and (Bosnian).