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Surprise! Surprise! No More Surprise Decisions!

Surprise! Surprise! No More Surprise Decisions!

Croatia
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We can probably all agree that no one likes bad surprises, and the same especially holds truth with respect to unexpected outcomes of legal proceedings. When it comes to civil proceedings before Croatian courts, so-called “surprise” decisions were recently introduced into Croatian legislation by Articles 5 and 367a of the new Croatian Civil Proceedings Act which entered into force on 19 July 2022.

The new Civil Proceedings Act prohibits such “surprise” decisions which refer to court decisions that are based on the legal classification of the case which is completely different from the one discussed in the proceedings and which a diligent party could not have reasonably foreseen.

According to the case law of the European Court of Human Rights (e.g., Galich vs. Russia), such decisions are in conflict with the postulates of fair trial (Article 6 § 1 of the European Convention of Human Rights) and especially adversarial principle (“Audiatur et altera pars”). Hence, the prohibition of “surprise” decisions is aimed at preventing the violation of the right to a fair trial, including the right to be heard.

Although the prohibition of “surprise” decisions refers to all courts, it is particularly evident in the context of reversing “surprise” decisions of appellate courts considering they become legally binding upon adoption. Therefore, in such cases, the new Croatian Civil Proceedings Act prescribes the obligation of the appellate court to encourage the parties to comment changed legal classification of the case prior to rendering such a decision. The parties are also entitled to refer to new facts and new evidence, but only to the extent that such changed legal classification of the case requires this.

This change in the Croatian legislation is welcome by most. However, we are yet to see whether de lege lata solution will in deed prevent courts from rendering “surprise decisions as well as how the participation of the parties in a debate concerning the legal issues will affect outcome of the proceedings.

By Marija Elena Prskalo, Associate, Ostermann & Partners

Croatian Knowledge Partner

Čipčić-Bragadin Mesić & Associates is one of the leading law firms in Croatia that serve companies, credit & financial institutions and public entities. We have been recommended and recognized as the legal experts and service leaders by many leading international legal guides for more than 15 consecutive years. With roots dating from 1928. we now probably have more tradition, experience and market presence than almost any other law firm in Croatia. We work closely with the leading international law firms and consultants so we’re able to manage complex, cross-border projects and deals seamlessly and successfully. Around 85% of our clients are international enterprises doing business in Croatia. List of our clients include some of the world-renowned companies such as Amazon Europe Core, China Machinery Engineering Corporation, Tate & Lyle, Nafta a.s., Unilever Croatia, Unilever Hungary, Lenovo, Innoenergy CE, Flixmobility, Flixbus CEE South, Okoenergie Group, CTC Holding, Bunge Limited, Chipita, Rolls-Royce, Canvas Holidays, Vacalianselect, Redgate Software, Red gate Investment, Yahoo!, Aston Martin Lagonda, Domino Printing UK, Domino Printing Sciences, Goldman Sachs, Deutsche Bank, Barclays Bank, HSBC, State Street Bank, Citigroup Global Markets, Credit Suisse, Bank of America Merill Lynch, Standard Chartered, Och-Ziff Capital Management, Amundi Asset Management, Altima International, Red Arc Global Investments, SMBC Nikko Capital Partners, Royal Bank of Scotland, Morgan Stanley International, J.P. Morgan group, Allianz Global Investors, Schroders, Macquarie Bank, Digital Finance International, Winton Capital Management, Citibank, Invesco Asset Management Österreich, Croatian Pension Investment Company, Unicredit Bank AG etc. We enjoy learning about our clients’ businesses and want to understand them completely so we can provide the best possible and complete service.

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