TerraLex Cross-Border Guide to Guide to Tracing Assets Around the World

According to some independent analysts, asset tracing along with recovery, represents the most problematic and difficult area of the Serbian judicial system to navigate. In the past few years, in order to improve effectiveness and efficiency, the law has changed several times. However, none of the changes have resulted in significant improvements; asset tracing is still the major issue in the debt collection proceedings.

The problematic nature of asset tracing lies not only in the fact that the vast majority of Serbian asset registers are not publicly available, but also in the fact that publicly available information is often inaccurate and cannot be trusted.

Information concerning the bank accounts of legal persons can be found within one central registry. This type of data is easily accessible through the website of the National Bank of Serbia, without any registration formalities or fees to be paid. This is the only publicly available central register where an applicant can find precise, accurate and sufficient data on the wrongdoer’s assets. This registry represents the best part and high point of asset tracing in Serbia. Additionally, within the aforementioned registry, an applicant can discover whether the wrongdoer’s bank accounts are locked due to the collection of debt by third parties and the amount of debt to be collected. Upon a request and payment of certain fees, the National Bank of Serbia will provide additional information on the legal basis for the collection of each debt pending on the wrongdoer’s bank accounts. However, this applies only for legal persons (the same information regarding the bank accounts of natural persons is not publicly available). Information regarding the bank accounts of natural persons can only be obtained by a court or a civilian enforcement officer, in the course of enforcement proceedings.

Apart from the above-mentioned register, information regarding real estate assets is publicly available and can be found on the Cadastre registry website. However, publicly available information on this registry website is often inaccurate and cannot be fully relied on. Accurate information can be obtained directly from municipality cadastre registers, which keep records of real property located within their territory. The Serbian Cadastre Registry is divided by municipality with each having their own cadastre register. There is no single central registry collecting and maintaining information from all municipality cadastre registries. Therefore, in order to obtain the accurate information on the wrongdoer’s real estate, an applicant needs to have information regarding the exact location of real estate, so it can request more information from the appropriate municipality cadastre register.

Companies are required to submit annual financial reports to the Serbian Business Registers Agency, whereby those submitted annual financial reports become publicly available through the registers’ website. However, the data contained within these annual financial reports is nearly useless, as the register only indicates the existence of a company’s assets (real estate, movable property, total value of such assets); detailed information regarding assets is not disclosed.

Apart from the sources referred to above, if there are enforcement proceedings under an enforceable court decision then a court or a civilian enforcement officer can request from the local authorities information on other assets. For example, information can be requested in relation to the wrongdoer’s vehicles or, in case of a natural person, their social security status (which could further disclose whether the wrongdoer receives a salary, retirement fee, or any other income on a regular basis).

There is not much that an applicant can do independently, that is, outside of the enforcement proceedings, regarding third parties. The applicant may request from a court or a civilian enforcement officer (within the enforcement proceedings and under the enforceable court decision) to freeze all the payments from the wrongdoer’s accounts, and to order third parties, specified by the applicant, to withhold payments of debts to the wrongdoer. Once the third party receives the court’s or the civilian enforcement officer’s order, the amount payable to the wrongdoer by the third party is considered as seized in favor of the applicant, and thus, the third party cannot make the payment of the debt to the wrongdoer.

In order to protect/preserve assets on an interim basis, an applicant may request from a court (prior to court proceedings being issued, at any moment during the court proceedings, or even after the decision is rendered) an interim injunction to prevent a wrongdoer from disposing of his assets in prejudice of the applicant’s rights.

As previously indicated, a freezing injunction can be sought before a trial, in the course of proceedings or even after the court decision is rendered, by the court issuing an order for a preliminary injunction. However, in order to obtain the interim injunction order, the applicant must demonstrate to the court that it has a good arguable case by submitting sufficient evidence, ie the court must be persuaded that the claim has a prima facie legal basis. This means that from the documentary evidence (rather than an in-depth analysis of the facts) the claim must have a legal basis.

Furthermore, the applicant must have a cause of action, ie there must be a real risk that the applicant’s claim could be prejudiced while the decision on the merits is rendered and enforced, without the requested injunction. When it comes to monetary claims, the applicant should make a case that is likely that the wrongdoer will hinder the collection of the debt by transferring, concealing or otherwise disposing of his assets, in the absence of a freezing order. As regards non-monetary claims, the applicant should make a case that it is likely that the lack of a freezing order would impair or significantly impede, or would result in irreparable damage to the assets. Evidencing the aforementioned conditions is not necessary in cases where an applicant can deposit enough funds to cover any damage that would be caused to the wrongdoer by the freezing injunction. However, the courts rarely order freezing injunctions in such cases.

Freezing assets can be ordered only in relation to assets over which a judgment can be attached. In terms of monetary claims, a wide range of assets could be frozen such as movable, immovable assets, funds on bank accounts, claims against third parties, shares, etc. In terms of non-monetary claims, the freezing injunction has to be directly connected to the fulfillment of the claim. The freezing is limited to the value of the claim and to the specific asset which is the subject of the non-monetary claim (therefore a wider range of assets can be frozen in order to secure the collection of a debt). The freezing order must always specify the claim for which is issued, as well as assets and measures to be taken in fulfillment of the freezing order. This means that freezing orders regarding all of the wrongdoer’s assets are generally not allowed.

A search order, or any other similar action, is not available under the civil procedure in the Republic of Serbia. Such orders are exclusively reserved for use in relation to criminal cases and under the restrictive conditions aimed at human rights protection.

If the enforcement of a foreign court decision’s regarding a wrongdoer’s assets falls within the Serbian court’s jurisdiction, the Serbian courts are competent to issue the freezing order.

Yes, under the general rules on recognition and enforcement of foreign court decisions. Recognition and enforcement of a foreign court’s decision depends on several factors. For example, whether the Serbian courts have sole jurisdiction over the case under Serbian law and whether there are any applicable multilateral or bilateral treaties etc. Generally, a freezing injunction ordered by a foreign court can be applied in Serbia. However, in each case certain conditions must be met.