TAKING OF EVIDENCE IN CROATIAN APPELLATE COURTS: WHY NO FACT-FINDING AT SECOND INSTANCE?

Abstract

The regular form of appeal proceedings in countries of the European continental legal tradition involves review of facts and law. The appellate court re-examines the evidence and legal arguments advanced at first instance with a view to correct errors in adjudication and procedure. In some European legal systems, parties may introduce facts and evidence which were not addressed in the original judgment, and the appellate court may examine them at a new hearing. Often, however, litigation on appeal does not involve an actual second de novo hearing in which all evidence is introduced anew. The review may be limited to the examination of the first instance files. Based on the review of documents and protocols of the first instance court, the appellate court may (or may not) make its own independent findings of fact. In a number of countries of the European continental legal tradition it is quite common and normal to hold oral hearings before appellate courts with the purpose of establishing facts and reviewing the findings of the first instance court. This paper will, however, present as a contrast one example where this regularly does not happen: in post- Yugoslav countries. As a particular example of this procedural style, we will use the law and practice in the Republic of Croatia.