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A. Uzelac

heard by a single judge, since 1990 parties could waive their right to lay members of the tribunal.

In practice, collegiate trial was characterized by the participation of two lay- men who were mainly recruited from elderly and unemployed citizens, i.e., from the circles of those who had spare time and to whom the small compensation for taking part in court proceedings was not irrelevant. On paper, lay judges had all the rights and duties of professional judges, but in practice their role was reduced to a mere formality – they became passive and uninterested observers of the proceed- ings. If the original concept of a ‘democratic trial’ in which citizens could actively participate and even control judges had a certain justification and attractiveness, the way in which proceedings were conducted in practice made the active and mean- ingful participation of lay judges impossible. They could hardly get a comprehen- sive picture of any aspect of a case that dragged on through several hearings over a period of one or more years, and were dominated by a written exchange of party pleadings. However, as their presence was prescribed by law, from the formal per- spective it opened various possibilities of abuse and procedural tactics for delay, especially because every defect in the composition of a court (e.g., the absence of one or more lay judges from a hearing) was a reason for the nullification of the judgment.

The 2003 Amendments of the Code of Civil Procedure completely reversed the previous rule: a single judge was established as the rule in the first instance, while collegiate bodies were to be exceptional. Additionally, in appellate proceedings a single judge might exceptionally reach a decision instead of the panel of three judges. He would have jurisdiction to rule conclusively on appeals against mere procedural decisions and on less important issues (disturbance of possession, costs of proceedings, issuance of payment orders). Three member panels instead of five member panels would now decide the same questions in proceedings of secondary appeal (‘review’, ‘revision’, revizija) before the Supreme Court.29

7.1.2 The stabilization of the in rem jurisdiction of the courts as a means of avoiding jurisdictional disputes

Another change of a mixed organizational and procedural character relates to the relativization of the in rem jurisdiction of the courts. Under the 2003 Amendments, under specific circumstances, a court that would otherwise not have in rem jurisdic- tion could become competent to validly resolve the dispute at hand (e.g., a commer-


See the amendments to Article 41 Code of Civil Procedure. In the legislative debate, the draft- ers of the changes referred to Recommendation number R (95) 5 concerning the introduction and improvement of the functioning of appeal systems and procedures in civil and commer- cial cases of the Committee of the Ministers of the Council of Europe. Cf. Article 6: ‘[…] states should consider taking any or all of the following measures: a. not making use of more judges than necessary to deal with cases [...]’. According to this recommendation, a single judge can be used for the following matters: applications for leave to appeal, procedural applications, minor cases, where the parties so request, where the case is manifestly ill-founded, family cases, and urgent cases.


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