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  • A.

    Uzelac

    • 7.2

      Changes with regard to the introduction, selection and taking of evidence

      • 7.2.1

        General principles: relinquishing the inquisitorial principle in

producing evidence, abandoning the principle of the material truth

Much more significant changes relevant both to practice and to procedural theory deal with the process of evidence-taking. Expressed in terms of procedural princi- ples, the powerful inquisitorial authority of the court in gathering evidence is in- tended to be almost entirely abandoned and replaced by the rule that evidence is produced, more or less exclusively, on the initiative of the parties (adversary princi- ple).32

By this course of reform Croatia would, at least on paper, move away from the activist concept of the system of justice as partially inherited from Austrian civil procedure and Franz Klein. However, this demands additional explanation. The main motivation for the changes in this field was again the attempt to accelerate proceedings, i.e., to remove possible generators of delays and the long duration of proceedings. This may sound curious since the original inquisitorial authority, as conceived in Klein’s reforms, was aimed precisely at producing quick, inexpensive and efficient hearings unburdened with formalities. However, it seems that in Croa- tian reality, inquisitorial authority perverted the original intentions, and became a significant generator of the deceleration of proceedings. Among other arguments, it has been pointed out in particular that inquisitorial authority provided a leeway for procedural abuse and the obstruction of proceedings.

The explanation lies partly in procedural forms and practices, and not in the text of the Procedural Code. The general rule about the possibility of taking evi- dence ex officio was in law provided as an optional authorization, i.e., as a right, and not a duty, of the court. However, this possibility has often been interpreted in prac- tice as an obligation. For example, higher courts would regularly quash judgments on appeal if the appellant referred to evidence that had not been taken at trial if such evidence might be considered relevant, irrespective of whether such evidence had been introduced (or even mentioned) by the parties. Such an approach was supported by the doctrine of the primacy of the ‘material truth’. This concept was legitimized by the provision that established the ‘court’s duty to completely and truly establish disputable facts’ (Article 7 paragraph 1).

Absolute priority of the ‘material truth’ above the efficiency of the trial and le- gal certainty partly originated in the socialist period. By adhering to the principle of the ‘material truth’, the socialist system found an ideological justification for politi- cal control over the justice system: the ‘material truth’ always had precedence over ‘unnecessary, even damaging procedural formalisms’.33 Such an approach resulted

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See the changes in Article 7 Code of Civil Procedure: the rule that ‘the court can take the evi- dence not proposed by the parties if it is important for decision-making’ is deleted and re- placed by a general rule that ‘parties have the obligation to state the facts on which they base their applications and to propose the evidence necessary to determine those facts’. On the political background of the theory of the material truth see A. Uzelac, Istina u sudskom postupku (The Truth in Judicial Proceedings), Zagreb, Pravni fakultet, 1992.

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