Up-309/04

The essence of the principle of directness is that a judicial decision is issued by the judges who participated in the main hearing at which the parties made their statements and at which the court also examined all evidence. Judges can gain insight into the characteristics or particularities of an individual piece of evidence as well as their subjective opinion on the credibility of examined witnesses only if they directly participate in the examination of evidence such that that they, through their senses (and not through a mediator), perceive the nature and the contents of individual means of evidence. Precisely so that the principle of directness is not violated, the appellate judges may only exceptionally, within the framework of the powers granted in Article 358 of the Civil Procedure Act (Official Gazette RS, No. 26/99), change the conclusions of the court of first instance regarding the state of the facts. In the present case the Higher Court, despite the requirements which follow from the principle of directness, itself adopted a decision evaluating the non-credibility of certain witnesses and indirectly recognized a lesser evidentiary value to their statements without an appellate hearing, and thereafter itself decided on the size of the shares with regard to the common assets. Thereby, it interfered with the right to a fair trial, as guaranteed by Article 22 of the Constitution. The essential part of the right to a fair trial is namely also that proceedings be conducted in which all relevant facts and circumstances with reference to the discussed incident are examined and determined in accordance with the principle of directness.