Accelerating Civil Proceedings in Croatia
7.2.3 Abolishing the right to introduce new facts and evidence in second instance proceedings
Ideological proclamations that the search for truth is the supreme goal of civil pro- ceedings resulted in expansive possibilities for introducing new facts and evidence throughout the trial, even in the course of appellate proceedings. This latitude pro- vided a substantial potential for slowing down proceedings and their recurrent re- mand to some earlier stage – almost to the very beginning – in the case of newly discovered facts and evidence.
As already stated, the possibility of introducing new elements in first instance proceedings was practically unlimited – new facts and evidence could be intro- duced, practically without any sanction, at any time between the commencement of the suit and the conclusion of hearings. ‘The privilege of relying on new facts and evidence’ (beneficum novorum) existed, however, also in respect of legal remedies. As for the appeal, the right to introduce novelties was very widely prescribed in the Code of Civil Procedure, in principle even without limitations, as long as the new facts related to the period covered by the first instance judgment. Although even older procedural theory admitted that such a right ‘has a negative effect on the con- centration and acceleration of the proceedings, […] weakens the discipline of the parties, makes possible the abuse of procedural rights’ etc., it was widely asserted that the search for the truth makes it indispensable. Under the old rules, the court would have to take into consideration any relevant facts and evidence, even if in- troduced only by means of appeal.42 The only negative consequence consisted in the obligation of the party that introduced them to compensate for the costs incurred in accordance with the culpa principle. A rare limitation was introduced in 1990 through the rule that evidence may not be introduced on appeal if such evidence had been proposed at first instance proceedings but not been produced because of the failure of the party to advance the costs.
The 2003 Amendments went one step further and generally excluded new facts and evidence altogether from appellate proceedings. In that way, appellate procedure was reduced to the control of the proceedings of the lower court based upon evidence and facts presented at the trial. The only remaining opportunity for introducing new evidence and facts exists through a special legal remedy, the mo- tion for retrial (prijedlog za ponavljanje postupka). The main reason for these changes was, as stated in the explanatory materials to the 2003 Amendments, to combat the practice whereby
‘fraudulent parties, by concealing some facts or evidence during first instance proceed- ings and stating them only on the appeal, succeeded in securing the annulment of the contested judgment and having the case returned for retrial’.43
See S. Triva, V. Belajec and M. Dika, Gra ansko parni no procesno pravo, supra note 16, § 143/20, 156/8. Explanatory Material to the 2003 Amendments, p. 45 (commentary to Article 195 of the Amendments).