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Accelerating Civil Proceedings in Croatia

State Judicial Council, which decides on the disciplinary responsibility of the judges.

    • 7.4

      Reform of the system of legal remedies

      • 7.4.1

        Changes in relation to appeal

Considering that delays occur most often in appellate proceedings, it might be said that the biggest news in the 2003 Amendments lies in the fact that, unexpectedly, the appeal itself has undergone very few changes.

I already mentioned the changes relating to the right to introduce new facts and evidence at appellate proceedings and the exceptional possibility that a single judge will make decisions at appellate proceedings.55 This is probably the most far- reaching breakthrough in appellate proceedings. The majority of the other changes are only of a limited character. Smaller changes in the list of fundamental proce- dural errors (‘reasons for absolute nullification of the judgment’) were mostly caused by other amendments, e.g., as regards the composition of the court tribunal at the trial stage. Some errors that a court had to take notice of ex officio in appellate proceedings now have to be invoked by the parties, as another measure of strength- ening procedural discipline and the adversarial structure of proceedings.

However, in two important aspects the changes did not go deep enough to penetrate to the neuralgic points of the process – those that may be counted among the important causes for the duration and efficiency of appellate proceedings. One change, at least on the formal level, may even be seen as a capitulation in compari- son with the previous law.

As demonstrated in some of the cases against Croatia before the European Court of Human Rights,56 the reason for violations of the right to a fair trial within a reasonable time often relate to the fact that appellate courts generally restrict their intervention to annulling the decision of the lower court and remanding the case for retrial. Although the number of annulled decisions may diminish as a result of the reduction of the inquisitorial powers of the court, enough space is left for the old in- efficient practices to survive. Higher courts still can (and must) return the case to the court of first instance when factual and/or procedural errors are found, and the number of times that a case may be returned for rehearing is still not limited. The possibility of holding second instance hearings, which had long existed in theory, although it was rather infrequently used in practice, has now simply been deleted from the text of the law. One might state that this move presents a recognition in practice of the defeat of efforts to open the doors of appellate courts to the public, and to introduce direct, transparent, and responsible justice into appellate court- rooms.

Thus the change that might have been effected, but is still missing, relates to the possibility of hearing the voice of the parties at second instance proceed-

55 56

See supra, chapters 7.2.3 and 7.2.1 See, e.g., the Mikuli and Rajak cases (supra note 3).


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