At least two things in the amended Civil Procedure Act sound, conditionally, good

In an ideal scenario, no legal novelty should be adopted without fully mobilizing all those it concerns, but we are experiencing a scenario in which it is normal and acceptable for the majority of all laws to be adopted through an expedited procedure. Thus, yet another amendment to one of the certainly most important laws, the procedural law under which all civil proceedings are conducted, Civil Procedure Act (CPA), which came into force on July 19, 2022.

For those who do not know, the basic text was adopted back in 1977 in the former state, which amended and supplemented it nine times. The new state adopted it and amended and supplemented it fourteen times; once the Constitutional Court of the Republic of Croatia intervened, and once a consolidated text was published (which, according to the legislator’s rules of procedure, should be done after three interventions, but this is not respected, which is why the empty space is filled by unofficial consolidated texts from numerous entrepreneurs who pretend to be the legislator). This amendment is exceptionally extensive, containing as many as 111 articles. The explanation states that its adoption is also an obligation towards European legal standards, but comparisons show that no one has rushed to apply it; it has served more as a cover than as a real reason for adopting the amendment.

Challenge for judges and parties

Every change in the law is a serious challenge for both judges and parties, especially for lawyers representing the parties. This is further emphasized in the change of procedural rules. Sometimes it seems that we are returning to the old days when certain procedural details were decisive in court proceedings, when access to the court was almost impossible for the average, legally uneducated individual. Today, however, everything happens so quickly that this trend must be followed by court proceedings, and this (acceleration, simplification, especially through digitalization) is part of what is expected from the latest changes.

What to highlight as the most important novelties? We would highlight only two. The first is the acknowledgment of a certain omission in the extraordinary legal remedy of revision, which is fundamentally positive. A few years ago, this matter was radically, almost revolutionarily changed, and now a new change has been adopted that unifies everything, thus not guaranteeing anyone, in any procedure, the admissibility of revision. We are not quite sure that this change is welcome; time will tell who is right.

The second change we highlight is certainly extremely positive (provided that great care is taken to prevent its abuse). It is the so-called remote trial, which can mean a huge improvement. Many reasons for the poor perception of the judiciary lie precisely in the legal framework and practice that seem to compete in finding reasons for postponing hearings (part of the blame lies with the parties, but a large part is also on the system. One only needs to recall postponements because the judge is ‘busy with elections’, ‘on sick leave’ due to a child – shouldn’t this be easily resolvable, so that another judge holds the hearing? The legal framework and practice behave as if, instead of a civil case, it were, for example, the most complex criminal case.). This is a unique opportunity to completely change this, for the benefit of all of us, especially legal certainty and the rule of law, and finally, the legal state.

Problematic education

In this context, we want to draw attention to the fact that the legal text does not precisely state that recording the hearing means audiovisual recording, and there is a huge difference between just sound and sound and image (there are experiences from criminal proceedings that should be utilized).

In addition to these two highlighted changes, there are many other changes, but the key ones are those who will implement them, namely the judges. Unlike other areas of social life, due to the limitations set by the Constitution of the Republic of Croatia, personnel changes are almost impossible. A bad judge (who regularly holds hearings, makes decisions, behaves appropriately with judicial dignity…) is almost impossible to replace because they have a so-called permanent mandate until they reach seventy years of age. Therefore, it is always necessary to invest maximally in the continuous education of judges and to create conditions for them to work successfully. A good test (which we fear would yield concerning results) would be an unannounced check of a randomly selected hundred judges of first-instance courts (who are in direct contact with the parties) on the topic of what changes the new CPA has brought (which is, we emphasize, in force, which these same judges are applying today and must apply).

In the end, it would be nice if those who have data on how many cases the courts have so far accepted requests for audio recording of hearings, as well as why these requests were not accepted, immediately provide that data to the public. We do not need nice wishes, we do not need apologies; we need an immediately more effective legal framework in its entirety and in detail, which includes civil proceedings. A pragmatic approach to this is extremely important. Those who are bothered by the permanent judicial mandate (of course, the term ‘lifetime’ is inaccurate) until the age of seventy should deal with changes to the Constitution of the Republic of Croatia that determined it this way, which may in some future determine differently (or not). Pragmatism means creating the best working conditions for those who are now judges and those who will become judges, without burdening them unnecessarily, but demanding from them fully what is usually referred to as ‘lifelong education’ (engl. lifelong education). According to many, of course, in the best possible intention, it does not hit the mark the best.