A Real Push towards More Expeditious Civil Proceedings or Just another Dead Letter?
After 8 years since the last major amendment to the Slovenian Civil Proceedings Act (Official Gazette of the Republic of Slovenia, No.: 26/1999, as amended, hereinafter: "CPA"), which entered into force on 1 October 2008, the Ministry of Justice decided it is time for a new overhaul. On 18 November 2016, a final draft of the new major amendment was concluded and is now being considered for adoption by the government.
According to the introductory notes of the draft amendment, its main purpose is to heal the festering wound of the Slovenian civil judicature - long proceedings.1 Furthermore, the draft amendment introduces certain new instruments in civil litigation proceedings which shall modernise the proceedings, keeping pace with the developments in other European countries having similar civil litigation proceedings systems (e.g. Austria, Germany).
The main proposed novelties of the amendment are as follows:
(a) Electronic service of documents: all documents shall be served to attorneys, public notaries, state authorities, bankruptcy administrators, etc, through their secured electronic inboxes.
(b) Cascade lawsuit: in case certain information that is needed for filing of a further claim of the plaintiff is held only by the defendant, the plaintiff may file a cascade lawsuit, containing two claims, whereby:
(i) with the first claim, the plaintiff requests disclosure of needed information;
(ii) the main claim is made by the plaintiff only after receiving the required information from the defendant.
(c) Limitation of the number of preparatory deeds: Unless the parties are requested otherwise by the court, each party may, after filing the lawsuit or reply thereto, file only two further preparatory deeds. Such deeds, however, have to be filed 15 days prior to the preparatory hearing at the latest. The court shall not consider any preparatory deeds, which are filed after such deadline has already expired.
(d) Preliminary hearing: Prior to beginning formal civil proceedings, the court invites the parties to a preliminary hearing with the purpose to discuss legal and factual aspects of the case. The parties may also amend or supplement their statements on facts and evidences. The court may decide on all procedural issues and objections of parties.
(e) Proactive case management: After hearing the parties at the preliminary hearing, the presiding judge prepares a case management program containing:
(i) legal grounds which the court finds relevant for deciding the case, according to the claims of the parties;
(ii) a decision on the production of evidence as proposed by the parties;
(iii) the number and dates of court hearings which the court expects to hold in the case.
(f) Sanctioning the absence of parties from the preliminary court hearing: The party which does not attend the preliminary hearing cannot later claim a repayment of their costs with the proceedings in front of the first instance court.
(g) Final statements: Before conclusion of the first instance proceedings, the parties shall be given the possibility for their final statements (which can be time-limited). The parties shall sum up all their claims and ground their conclusions on the relevant facts.
(h) New possibilities for issuing of interim judgments: The court may issue an interim judgment also on the issue of the expiry of limitation period.
(i) Delivery of judgment: The judgment shall be delivered immediately after the conclusion of the first instance proceedings or within 8 days following the conclusion of the court hearing at the latest. The judgment can be declared orally by the judge - in such cases, the court shall issue a written "short judgment", stating only the claims and relevant facts, on which the claims were based, in 8 days after the judgment has been declared.
(j) Amendments to the appeal proceedings: If the judgment was declared by the court orally, the court shall issue a fully reasoned written judgment only if either of the parties announces that they will file an appeal. Such an announcement shall be made within 8 days following the receipt of the written "short judgment". The deadline for filing an appeal has been extended to 30 days following the receipt of the fully reasoned written judgment. The appeal is filed with the first instance court which delivered the first instance judgment. In cases where:
(i) the parties claim that violations of certain provisions of the CPA were made in the first instance proceedings; and
(ii) the first instance judge, after receiving and performing the initial check of the appeal (completeness of appeal, timeliness, etc.) realizes that the above claims are correct, the first instance judgment may be replaced by a new judgment.
(k) Changes regarding the appeal on a point of law (revision): The appeal on a point of law is possible only if the case is accepted by the Supreme Court of the Republic of Slovenia based on the prior submission of the party (the accepted appeal on a point of law; dopuščena revizija). The justices of the Supreme Court may issue separate descending or confirming opinions of the decision of the Supreme Court.
If this new amendment is passed into law, the proposed solutions and instruments will require a much higher level of diligence and preparation of all participants in the proceedings at an early stage. Only time will tell if this will lead to a higher quality of first instance proceedings and consequently to better first instance decisions.