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A. Uzelac

tion to the suit in full when replying and to enclose the documents he/she refers to, if it is possible.

The second change relates to the role of the preliminary hearing or the first main hearing. The Amendments have not changed past conceptions of the prelimi- nary hearing as an optional stage in proceedings.39 But the new rules have strength- ened the obligation of the parties to state all facts and propose all evidence in their written statements of claim and defence, either at the preliminary hearing, or, at the latest, if the preliminary hearing is not held, at the first oral hearing on the merits. Sanctions against the delayed presentation of facts and evidence under the new concept, however, do not include exclusion of the right to present them altogether, but only the obligation to pay all the costs that would arise from such delayed state- ments. The court is to rule on such costs immediately, irrespective of the outcome of the case.40

Although these measures were optimistically announced as a great step to- wards the concentration of proceedings, it has yet to be seen what their real effect will be. Delayed statements of facts and evidentiary motions will still not be disre- garded.41 The threat to award expenses may prove insufficient, especially if judges hesitate to make use of it. Another problem may occur when determining the amount of damages caused by delayed motions for evidence. If costs are difficult to determine, it could further undermine the efficiency of the proceedings, and if strong proof of such costs is required, under certain circumstances this may in prac- tice eliminate any advantage in using it. A somewhat stronger solution that would enable the court to determine deadlines for introducing new facts or proposing evi- dence would surely be more efficient, but at the present stage in the reform of the civil proceedings it was not accepted. It is therefore questionable whether the new rules will really contribute to the concentration and acceleration of first instance proceedings. Undoubtedly, the current practice of conducting proceedings through a large number of hearings at long intervals over the course of one, two or more years, can be considered among the main obstacles to the acceleration of the pro- ceedings. It is also a precondition for the meaningful realization of some of the other procedural principles that the Code of Civil Procedure be particularly based on the principles of directness and free evaluation of evidence.


40 41

The fact that, after the changes, a single judge can rule in the great majority of civil cases, will lead in practice to the elimination of preliminary hearings, since they are held only if the trial is conducted by a panel of judges. See the new text of Article 299 Code of Civil Procedure. As stated in the explanatory material to the 2003 Amendments, ‘[…] a radical limitation of that right [of beneficium novorum in first instance proceedings] was avoided. It was assessed that by that, because of the general level of legal culture in Croatian society, abolition of the right to present new facts and evidence would seriously jeopardize the correctness and the accuracy of adjudication and legal certainty in general’. See Explanatory Material, II.4 in fine.


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