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  • A.

    Uzelac

      • 7.3.4

        Sanctions against procedural inactivity by parties, default judgment

The strengthening of the accusatory structure of civil proceedings and procedural discipline and the attempt to concentrate the main hearing also found their reflec- tion in the possibility of attaching negative consequences to inactivity on the part of the defendant. Until 2003, default judgments could be given only at the preliminary hearing or the first main hearing provided that the defendant had failed to contest the claim until that time, either orally or in writing. By introducing a universal obli- gation to submit a defence by way of a written statement, a new type of default judgment was made possible. This new default judgment (presuda zbog ogluhe) will replace the old default judgment (presuda zbog izostanka) in all cases in which the de- fendant is ordered to submit a written statement of defence but fails to do so within the time-limit determined by the court. Both default judgments will be based on the presumption that a passive defendant acknowledges the claimant’s factual allega- tions.51

A defendant’s obligation to submit his defence will consequently be shifted to an earlier period, i.e., generally to 15 to 30 days after he has received the statement of claim. The intention of the amendment was to stimulate an early presentation of their case by both parties, and to accelerate procedures, in particular if there are no serious legal and factual issues to be resolved, but the suit is the consequence of other circumstances (the defendant’s negligence, difficulties in securing payment, etc.).

Indeed, as the obligation to reply to the claim still does not entail an obligation to submit all available defence arguments and evidence in favour of the defendant’s allegations, it can be presupposed that the current, very permissive practice with re- spect to late pleadings will not be significantly changed. There is also no guarantee that, just as today, ‘empty shells’, i.e., statements of defence that do not contain any substantial argument, but merely a denial of the claim, or even purely procedural matters (e.g., an application for the adjournment or prolongation of deadlines, an announcement that ‘a comprehensive reply to the claim will be given later on’, etc.) will be rejected (i.e., refused to be considered as a substantial presentation of the de- fence). The continuation of such practices could significantly restrict the effect of the changes on the concentration and acceleration of the proceedings.

The negative consequences of the defendant’s inactivity will further be limited to the very initial stages of the proceedings, as default judgments can be given only prior to the joinder of issue. Subsequent defaults can be penalized only indirectly, if the court reaches a judgment based on unilaterally presented facts and evidence. The efficiency of such indirect sanctions for passivity of the parties in the proceed- ings will depend to a great extent on whether the adversarial principle will really be accepted and implemented by judges and the courts.

51

See Article 180 of the 2003 Amendments (new Article 331b).

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