Accelerating Civil Proceedings in Croatia
cial court would become competent to deal with matters falling within the jurisdic- tion of a municipal court and vice versa). Within the Croatian justice system, the role of specialized courts is not too significant – it is limited in civil proceedings to com- mercial courts as a counterpart to the courts of general jurisdiction. Notwithstand- ing, under the rigid rules of the past every change in the in rem jurisdiction of the courts led to a lack of jurisdiction. The challenge based on lack of jurisdiction could be invoked at any stage in the proceedings – moreover, the court was obliged to rule on them ex officio. This created a significant opportunity for the obstruction of a whole series of proceedings. Practically every decision by which a court found lack of in rem jurisdiction led to delays in proceedings that could last for several years. At the same time, the rules on the in rem jurisdiction of the courts changed fre- quently so that many cases had to be transferred by one kind of court to another. This transfer of cases generally happened without the participation of the parties. It is significant that it was jurisdictional ping-pong of exactly this kind which brought about at least part of the most disastrously inefficient proceedings. Some such cases in relation to the Republic of Croatia had their epilogue before the European Court of Human Rights that found violation of the rule of fair trial within a reasonable time under Article 6 of the Rome Convention.30
The official explanation of the new amendments therefore expressed the view that the
’legal and political importance of the rules of in rem jurisdiction are not such as to jus- tify the quashing of judgments even after several years of proceedings and that the significance of competence issues, as issues that do not concern the essence of things, should be reduced to the minimal possible extent’.31
Thus, the 2003 Amendments provide that courts may decline jurisdiction for this reason only prior to the commencement of substantive arguments, i.e., at a prepara- tory hearing or – if such a hearing is not held – at the first hearing. After substantive oral pleadings at the first hearing, the parties are precluded from raising in rem ju- risdictional objections – the jurisdiction may be considered ratified and the court can therefore continue and reach a final decision of the dispute regardless of the possible initial lack of in rem competence (e.g., a municipal court becomes compe- tent to make a judgment in cases where commercial courts are competent). This proposal was partly attacked in parliamentary discussions because of the possibility that a ‘non-specialized’ court would decide cases where special expertise was neces- sary. However, it was also considered that the positive effects of this measure might considerably surpass any possible lack of specialist expertise which, in matters of the civil and commercial justice, has a very limited importance.
See, e.g., the Rajak case, supra notes 3 and 4. From the explanatory notes attached to the draft 2003 Amendments (Ministry of Justice mate- rials dated November 2002, unpublished).