X hits on this document





35 / 82

A. Uzelac

reached at closed sessions of appellate court panels, without the presence of the public – without the presence even of the parties and their lawyers. This may have affected the percentage of decisions annulled, which has remained high. Procedural rules also did not contain any limitations on the number of annulments and retrials allowed within the same proceedings. Not infrequently cases occurred in which judgments were quashed two, three or more times, many times for factual reasons.

Practice in the lower courts tried to adjust to these approaches and demands of the higher courts. In the evaluation of trial judges, annulled decisions had a nega- tive impact and meaning, resulting in poor grades and less prospect of advancing to higher judicial posts. In order to avoid the annulment of their decisions on factual grounds, first instance judges developed a procedural style that insisted on every, even remotely relevant, piece of evidence. Court hearings were postponed several times if such evidence was not obtained, and consequently the proceedings dragged on for months and years. In combination with the unlimited possibility of introduc- ing new facts and evidence and the low level of procedural discipline,35 the inquisi- torial style and psychology became one of the most important generators of ineffi- ciency in court proceedings. The amalgamation of all these elements led to a type of procedure that was very distant from its proclaimed ideal – a quick, cheap, public, direct and concentrated procedure.

For all these reasons, the 2003 Amendments envisaged a quite radical turn away from judicial authorities producing evidence ex officio. According to the rules, the court would have to restrict its evidentiary efforts to the evidence proposed and produced by the parties. In other words, the court would be prohibited even from taking any evidence unless it was relied upon by the parties, except in the case where such evidence prevented illegal dispositions by the parties. It was considered that only by adopting such a solution could the onus probandi be clearly transferred to the parties. As stated in the legislative debate ‘in the future [after adoption of the 2003 Amendments] the truth [in judicial proceedings] would only be what the par- ties could prove before the court’.36 Henceforward, in the process of fact-finding, the court would maintain only a controlling function, and an activist approach would be permissible only if there was a legitimate belief that the parties in the civil pro- ceedings by their actions would be violating mandatory law or acting against public morality.37

It remains to be seen how the strengthening of the adversarial structure of civil litigation will be applied in practice. It is also uncertain if, how and when these changes will contribute to the acceleration of proceedings. The new procedural rules could certainly reduce the likelihood of the annulment of decisions for failure to take certain pieces of evidence; but that applies only to evidence that was not pro- posed by the parties in the proceedings. This is an important psychological step, but

35 36


For these elements see infra, chapters 7.2.2 and 7.2.3. From the speech of the Minister of Justice made while introducing the changes to the Parlia- ment, Izvješ a Hrvatskog sabora (Reports of the Croatian Parliament), number 352, 15 January 2003, p. 21. See Ministry of Justice materials entitled ‘On the Reform of the Justice System and its Direc- tions’, June 2002, unpublished, p. 52.


Document info
Document views296
Page views303
Page last viewedThu Dec 08 00:31:05 UTC 2016