Accelerating Civil Proceedings in Croatia
it may prove insufficient to remove altogether the inquisitorial consciousness of the judges. The possibility of a tolerant judicial attitude towards vexatious and irrele- vant evidentiary proposals still remains, and there is even a chance – now parties know that they cannot rely on judicial activism in evidence taking – that such evi- dentiary proposals will occur more intensively. On the other hand, no sanctions are prescribed for a court that in opposition to the text of the law continues ordering evidence ex officio, and there are no guarantees that higher courts will break with past practice rather than make minor changes in the explanation of annulment deci- sions. As regards the potential negative sides of a consistent application of the new text, it seems that after the 2003 Amendments come into effect courts will be pre- vented from acting and ordering evidence even in cases where Equity would so re- quire (e.g., in cases in which socially vulnerable parties appear without lawyers and adequate knowledge and resources).38
In any case, it is clear that a mere change in the text of the law will not by itself lead to substantial improvements. Efficiency can be raised, and proceedings can be accelerated in a proper and just way, only if amendments in the law are accom- panied by a comprehensive change in approach and awareness – meaning a real shift from an inquisitorial towards an adversarial style of procedure. For that pur- pose, comprehensive programs of education and training will be necessary for all legal professionals (judges, lawyers, experts, etc.). It is quite likely that a longer pe- riod of adjustment will be needed to experience actual changes and their results.
7.2.2 The concentration of proceedings – The obligation to introduce and present evidence at the preparatory hearing and at the main hearing
The amendments to the Code of Civil Procedure introduced changes to the role and concept of several procedural institutions with the intention of concentrating pro- ceedings.
The first change relates to the requirement that the defendant submit a written statement in reply to the claimant’s allegations. Prior to 2003, such a written state- ment of defence was optional, while after the changes come into effect, this will be mandatory in most cases.
The obligation to submit a written statement of defence under the Amend- ments has a dual function: to strengthen procedural discipline and to concentrate proceedings. In the first place, if a defendant fails to provide a written statement of defence, a default judgment may be entered against him even at this early stage. In addition, the defendant’s obligation to answer in writing should gain importance because of the new obligation of the defendant to express his/her position in rela-
As a specific compensation, it is provided that the judge may, when this is needed for the cor- rect resolution of the dispute, ‘advise the parties about the need of submitting factual allega- tions and proposing certain evidence’, along with an explanation for why this is considered to be necessary. See new Article 219, paragraph 2 Code of Civil Procedure. Whether this will be enough (because it depends on the discretion and good will of the court) or too much (if a failure to advise the parties would be considered to be a ground for appeal) is yet to be seen.