Key legal info on litigation in Croatia. Prepared in association with Danijel Pribanić, a leading global law firm, this is an extract from The Pharma Legal Handbook: Croatia, available to purchase here for GBP 99.
1.Who has the burden of proof in litigation for drug side effects?
The burden of proof is on the plaintiff, there is no automatism. The parties are obliged to state all the facts on which their claims are based in the lawsuit and the response to the lawsuit, and at the latest at the preparatory hearing, to propose the evidence necessary to establish the stated facts and to state the facts and evidence of the opposing party. During the main hearing, the parties may present new facts and propose new evidence only if they could not present them without their fault, ie propose them before the conclusion of the preliminary proceedings.
The court must take into account the factual allegations and evidentiary motions of the parties that are legally relevant, but the court must not take into account facts and evidence to which neither party has relied on, no matter how relevant they might otherwise be in the dispute.
2. Can a party to the proceedings influence the selection of an expert witness? Can there be different expert witness findings?
The party proposing the presentation of evidence by an expert witness may propose the person of an expert witness. The court will allow the opposing party to comment on the proposed expert witness. The court will appoint a proposed expert if the opposing party does not object to the proposed expert, if the opposing party objects to the proposed expert witness, the expert witness shall be appointed by the court.
Exceptionally, the court may appoint another expert if it deems that the complexity of the expertise so requires, or if it deems it necessary to prevent the parties from disposing of requests which they cannot dispose of. In that case, the civil court may authorize the presiding judge or the requested judge to appoint experts if they are entrusted with the presentation of evidence by an expert witness.
The court manages the expertise, marks the expert subject for review, asks him questions and, if necessary, seeks explanations regarding the given finding and opinion. The expert witness may be given clarifications and may be allowed to review the file. At the expert’s request, new evidence may be presented in order to determine the circumstances that are important for the formation of the expert’s opinion. The court will determine whether the expert witness will present his / her findings and opinion only orally at the hearing or will also submit them in writing before the hearing. The court shall set a deadline for the written submission of findings and opinions, which may not exceed 60 days. The expert must always explain his opinion.
If more than one expert is appointed, they may submit a joint finding and opinion when they agree on the finding and opinion. If they do not agree with the finding and opinion, each expert shall present his / her finding and opinion separately. If the expert’s information on their finding differs significantly, or if the finding of one or more experts is unclear, incomplete, or in conflict with itself or with the circumstances, and these deficiencies cannot be remedied by re-examining the expert, the expert examination shall be renewed by other experts.
If there are contradictions or shortcomings in the opinion of one or more experts, or there is reasonable doubt in the correctness of the given opinion, and these shortcomings or doubts cannot be eliminated by re-hearing the expert, the opinion of other experts will be sought.
3. Can an expert witness be an organization or must he or she be a person? Must a person be locally registered and have a practice in the country of litigation?
Expert examination, as a rule, is performed by one expert; and when the court finds that the expertise is complex, it may appoint two or more experts. Experts are appointed primarily from the ranks of permanent court experts for a certain type of expertise that is registered in Croatia.
The expertise can also be entrusted to a professional institution in Croatia (hospital, chemical laboratory, faculty, etc.). If there are special institutions for certain types of expertise such expertise, and especially more complex ones, will be entrusted, first of all, to these institutions.
4. Who has the right to choose the place of the court?
In the place of the plaintiff and in the place of the defendant if it is a claim for damages.
5. Are there different categories of damages to be compensated?
In Croatian obligation law, there are three basic forms of reparation: in-kind restitution, damages, and satisfaction.
In-kind restitution is the restoration of a condition that existed before the damage occurred.
Compensation is a form of reparation that consists of a monetary equivalent.
Satisfaction, as a form of repairing the damage that is recognized to the injured party as a certain subjective satisfaction (etc. moral satisfaction, monetary satisfaction).
Croatian law doesn’t recognize punitive damages.
6. Is there a pecuniary damages principle in litigation?
In Croatian litigation, there is pecuniary and non-pecuniary damages principle.
7. Are there legal or practical limits on the amounts of compensation to be paid?
At the second session of the Civil Division of the Supreme Court of the Republic of Croatia held on 5 March 2020 and 15 June 2020, the orientation criteria and amounts for determining the amount of fair monetary compensation for non-pecuniary damage were changed.
These orientation criteria should enable the uniform application of the Law on Obligations.
They do not represent a mathematical formula that is used automatically to calculate fair monetary compensation. In the application of this regulation, one should always keep in mind all the circumstances of the case, where the duration and severity of physical and mental pain and fear have only the significance of particularly important, but not the only circumstances that the court must keep in mind when determining the amount of fair compensation.
The amendment to the Guidance Criteria applies to all civil proceedings for compensation of non-pecuniary damage in all stages of the trial (in the future), ie from the day of acceptance at the session of the Civil Department of the Supreme Court (June 15, 2020).
For example, in case of death a maximum compensation of 330.000,00 kuna, maximum compensation for physical and mental health: mental pain due to a decrease in life activity 67.500,00 kuna, the right to mental health 50.000,00 kuna, suffered fear 45.000,00 kuna.
8. How common are settlements?
Litigation settlements are an extremely rare way to end a dispute in Croatia. However, the trend of increasing settlements is noticeable. Many Attorneys are also authorized mediators.
9. Are there specialized judges or courts dealing with damages?
There are no specialized courts or judges that deal with damages, Civil divisions of municipal and county courts in addition to the civil division of the Supreme Court of the Republic of Croatia deal with damages.
10. How many stages of the trial are there?
There is three-stage litigation in Croatia. Commencement of litigation in the Municipal Court and the County Court as an appellate court, and the possibility to appeal on points of law and constitutional claim before the Supreme court respectively.
11. What are the costs of a regular dispute? Who bears the costs of litigation?
Initiating a lawsuit and litigation involves a number of costs that are difficult to fully comprehend before concluding. The total costs are largely related to the length of the litigation and the value of the dispute, which is determined based on the amount indicated in the lawsuit. Therefore, in practice, it is not uncommon for costs to reach enormous proportions after years of litigation.
Litigation costs are expenses incurred in the course or in preparation of the proceedings. In practice, the most common costs of civil proceedings are attorney’s fees, court fees, costs of court experts, costs of witnesses, court interpreters, and advances for the presentation of evidence.
The rule is that in the preparation and during the trial, each party pays the costs caused by its actions. Evidence includes all the facts that are important for making a decision, and each party is obliged to present the facts and propose evidence on which to base its claim or to refute the allegations and evidence of the opponent. When a party proposes the taking of evidence, he is obliged to deposit in advance by court order the amount necessary to cover the costs that will be incurred in connection with the taking of evidence.
The court fee is determined by the Law on Court Fees and the Tariff of Court Fees, which is an integral part of the said law. The court fees are determined based on the value of the subject matter of the dispute at the time the lawsuit is filed. For a claim of 100.000 EUR fee per hearing or a written statement is 1.000 EUR. In other words, the higher the claim – the higher the court fee, there is no upper limit on fees. According to experience, the costs are usually around 50.000,00 -100.000,00 kuna.
As in the case of court fees, attorneys’ fees in civil proceedings are determined based on the indicated value of the case or the type of dispute. The lower and upper limits are defined by the Tariff on Remuneration and Reimbursement of Attorneys’ Fees, which is determined by the Croatian Bar Association.
The basic rule is that the party who loses the lawsuit in its entirety is obliged to reimburse the opposing party for the costs. However, if a party succeeds in part in the proceedings, the court may order that each party bear its own costs or that one party reimburse the other for a proportionate part of the costs. In that case, the court first determines the costs of each party and then offsets the stated amounts and awards the difference to the party who is entitled to compensation of a larger amount. Reimbursement of costs is decided by the court at the request of the party. In doing so, the party is obliged to state the individual costs for which it seeks compensation and attach evidence (invoices, contracts, etc.) on the occurrence of the said cost and its settlement. When deciding what costs will be reimbursed to the party, the court determines the costs necessary to conduct the litigation and only recognizes them.
The plaintiff who withdraws the lawsuit is obliged to reimburse the opposing party for litigation costs. But if the suit is withdrawn immediately after the defendant has complied with the plaintiff’s request, the costs of the proceedings shall be reimbursed to the plaintiff by the defendant.
You are entitled to an exemption from paying the costs of the proceedings if, according to your general financial situation, you cannot cover those costs without prejudice to the necessary maintenance of yourself and your family.
12. What is a statute of limitations for a lawsuit?
The three-year limitation period applies to claims for damages counting from when the injured party learned of the damage (when the damage occurred or when medical treatment was completed) and the person who caused the damage.