On 10 June 2023, the new Law on Non-Contentious Proceedings (Official Gazette No. 59/23; the “LNP”) came into force, which was adopted by the Croatian Parliament at the session on 24 May 2023.
The purpose of adopting the LNP arose from the need to modernise the normative regulation of non-contentious procedures in the Republic of Croatia as a special type of civil procedure, which in its content has characteristics of the extrajudicial proceedings. Please note that the LNP represents the first and comprehensive intervention in non-contentious legal proceedings after the Law on Non-Contentious Proceedings from 1934 (“LNP/34“), where its partial derogation from substantive laws (e.g. inheritance law, family law, etc.) for the competent courts have created a legal labyrinth in the application of procedural law, i.e. to what extent and when LNP/34 and when the rules of civil procedural law are to be applied directly. In addition to modernisation, the legislature wanted to ensure a faster and more efficient realisation of civil rights by entrusting the resolution of certain types of cases to notaries.
Proceedings initiated and not completed before the entry into force of the LNP will be completed in accordance with the applicable or previously applied rules and regulations (except for the exceptions provided for in the LNP).
In addition to the general rules of conduct in non-contentious procedures, the LNP contains provisions that regulate in detail special non-contentious procedures, namely: declaration of the death of a missing person and proof of death, voluntary valuation and sale, court and notary deposit, judicial annulment (amortization) of documents, and procedures, appointments, setting of deadlines and other measures. What is interesting and what we will focus on in particular in the final considerations is that the very common voluntary border regulation procedures, the separation of co-ownership and the regulation of the relationship between apartment owners were excluded from the regulation.
The relationship between non-contentious and civil procedures
If the court determines before the decision on the main issue that the procedure must be carried out in accordance with the rules of civil procedure, it will suspend the non-contentious procedure with a decision and the procedure will be heard after the decision on the suspension has become legally binding in accordance with the Code of Civil Procedure before the competent court, whereby all measures taken in the non-contentious procedure remain effective and the possible repetition of legal actions is limited only to the violation of the civil procedure.
Special features of the legal regulation of non-contentious procedures
- Jurisdiction and composition of the court, parties to the proceedings and the position of the notary
Unlike civil proceedings, non-contentious proceedings are decided by a single judge in both the first and second instances, with the possibility of actions being taken by court advisors and other authorized court officials. The municipal courts are actually competent for settlement in non-contentious proceedings in the first instance. The LNP entrusted notaries to carry out the process of reporting missing persons (Article 56, paragraph 2) and proving death (Article 66, paragraph 2) as well as to mutually determine the boundaries and the division of joint ownership (Article 52, paragraph 1 . ), while the party can also turn to the notary (in addition to the court) to carry out the procedure of voluntary (public) sale of real estate (Article 70). The court retains exclusive jurisdiction over all family matters (including uncontested divorces, for which it was assumed they would fall within the jurisdiction of notaries). The parties to the non-contentious procedure are the plaintiff and the person named by the plaintiff as the opposing party, whereby the status of the party is also recognized for other persons whose legal status could be directly affected by the court’s decision or by another measure that the court takes in the proceedings taken to protect them. The parties can sue in non-contentious proceedings personally or through a representative, whereby the relevant application of the Code of Civil Procedure is required for the representation of the parties by an authorized representative.
- Initiation of the procedure and content of the proposal
The procedure is initiated at the request of a party, but in the cases provided for by law, the procedure is initiated ex officio by the court, these cases being governed primarily by the rules of substantive law, with the exception of the case of annulment proceedings to decide to declare a missing person deceased if it becomes known in some way that the person is still alive, as provided for in the LNP. The proposal initiating the procedure does not need to contain a specific request (unlike a lawsuit in civil proceedings), but it should clearly indicate which decision or other judicial measure the applicant is requesting and on what factual grounds the request is based. Such an approach to the regulation of applications allows easier access to substantive rights exercised in non-contentious proceedings, since the possibility of a formal defect in the statement of claim itself that initiates such proceedings is reduced. In contrast to civil proceedings, in non-contentious proceedings the court can request the party to make a written statement within a certain period of time on the other party’s proposal or on the subject and result of the proceedings initiated ex officio and ask the party to make a statement to the court or arrange a hearing. In non-contentious procedures, the court may, in the cases provided for by law, order a hearing with all parties or only with those parties to which certain issues to be discussed relate, which represents a wide discretion of the court in the conduct of the procedure itself.
- Court decisions and explanation of decisions
In non-contentious proceedings, the court decides both on the substance and on procedural issues in the form of a decision. In addition to the prescribed appropriate application of the Code of Civil Procedure with regard to the content and form of the decision, the LNP provides for exceptions to the rule that the decision on the merits must be explained. Thus, the court’s decision does not need to be explained: i) if the proposals of the parties that do not contradict each other are accepted, ii) if the decision corresponds to the declared will of all parties, iii) if the decision is made orally and has been announced in the presence of the parties and all parties have waived the right to appeal and iv) if the decision allows the entry or deletion of entries in the land register.
- Legal remedies in non-contentious proceedings
An appeal is permissible against the decision of the court of first instance, and shall be submitted to the court of first instance. The appeal shall be filed within 15 days of the delivery of the written decision, and the parties may file a response to the appeal within eight days of the delivery of the appeal. There is a special provision of the LNP which states that a person who did not participate as a party to the proceedings or was not named as a party during the proceedings and was not served with the decision may also lodge an appeal pending the final decision. It may lodge an appeal within the time limit within which a party who was involved in these proceedings and who was last served with the decision may lodge an appeal. After the decision becomes final, the party that did not participate in the proceedings may submit a proposal to modify or annul the final decision. The LNP provides for the possibility of submitting revisions and proposals to amend or revoke the final decision in accordance with the provisions of the Code of Civil Procedure.
- Final considerations
Given that the Republic of Croatia joined the European Union in 2013, while the other republics of the former Yugoslavia still face the challenge of implementing the acquis communautaire, it is common practice for the Republic of Croatia to transfers experiences from the accession path to neighboring countries. However, with regard to non-contentious procedures, this is not the case, considering that all neighboring countries have had a systematic law such as the LNP for many years, while the judiciary of the Republic of Croatia has struggled with the partial application and exceptions of the LNP/34. However, the LNP does not appear to be without its flaws. Through a comprehensive examination of the new and old regulations of the non-contentious procedure, it becomes clear that the LNP regulates the amicable regulation of boundaries and the dissolution of co-ownership, but that there is no standardization of such a procedure at the request of only one party, while the LNP/34 contained many clear procedural rules (lex specialis) for such proceedings that applied exclusively to such real court proceedings. The lack of such regulations leads to the conclusion that there could also be gaps in these procedures that the courts could close with the Code of Civil Procedure or with the LNP/34 and therefore largely represents a major
Authors: Ivona Vlahović, Tin Aničić