Accelerating Civil Proceedings in Croatia
in the weakening of the authority of court decisions – they had an ever-provisional nature because of the wide possibilities for their contestation, inter alia due to the failure to exercise the indispensable judicial activism in gathering evidence and fact- finding. However, although such an approach was largely rooted in socialist ideol- ogy, the inquisitorial psychology and inquisitorial consciousness among judges – especially those in higher ranks of the judicial hierarchy – survived socialism.
It may be somewhat peculiar to note that the actual text of the socialist law of- fered several possibilities for a completely different approach. Among other things, in spite of the possibility of taking evidence ex officio, rules on expenses did not al- low that evidence be produced if the expenses of evidence-taking were not paid in advance by the parties.34 But this opportunity to limit the inquisitorial authorities to the mere stimulation of party-driven evidence-taking was disregarded. In practice, even in such situations higher courts would consider on appeal that establishing the truth had priority and would revoke decisions because of the failure to ‘truly and completely establish the facts of the case’.
The alleged failure to introduce some pieces of evidence at first instance was never compensated for at the appellate stage. The possibility of a hearing of evi- dence at second instance created by the Code of Civil Procedure was in reality ab- rogated in practice – such hearings never became reality in Croatia. This was partly due to the theoretical justification that the appellate court should not be turned into a trial court. Therefore, even under positive law second instance hearings could have only a limited scope for rehearing evidence taken at first instance, while new evidence was barred at second instance.
So the appellate courts found a universal answer to every factual doubt – re- turning a case for retrial. For higher courts, this was a comfortable and practical so- lution for a number of reasons. The annulment of a judgment would in statistical terms be considered a successfully resolved issue in the evaluation of the perform- ance of appellate judges. By quashing a judgment, they would also confirm their commitment to a search for truth. At the same time, responsibility for the final reso- lution of the dispute was avoided, i.e., transferred back to the court of first instance. Striking down a ‘mistaken’ decision also reconfirmed their epistemological superi- ority and their legal authority over first instance judges. The possibility of the un- necessary annulment of a judgment (e.g., if the retrial would result in the same find- ings, which happened quite often) did not, sub specie aeternitatis, cause tragic conse- quences. If the annulled judgment was correct and the ‘omitted’ evidence did not modify the previous findings, the court of first instance could issue a new judgment with the same content, and justice would be considered to have been done.
The only nuisance, of little significance from the perspective of the higher court, consisted in the fact that rejection of the decision meant that the actual social conflict was far from being over. In practice, higher judicial authorities never had any real contact with real parties, and never had the opportunity to experience at first-hand their feelings with regard to such a restarting of the clock and the repeti- tion of the often traumatic (and expensive) trial. Decisions about appeals were
Article 153, paragraph 3 Code of Civil Procedure.