Legal System in Slovenia

Litigation

Commencing proceedings

In Slovenia it is a claimant who commences legal proceedings by filing a statement of claim with the court of first instance having jurisdiction. This is in accordance with one of the main principles of Slovenian civil procedure, stating that the parties shall be free in disposition of the claims which they raise in the proceedings. They may relinquish their own claim, acknowledge the opposite party’s claim and conclude a settlement. In the statement of claim, the claimant explains the relevant facts and applies for a specific remedy. If the action is a claim for payment (e.g., purchase price, damages), the amount has to be specified. In all claims, the claimant must state all facts giving rise to their cause of action and shall adduce evidence proving these facts. Sufficient copies of documents should be submitted for the court and each adverse party.

When filing the statement of claim, the claimant has to pay a court fee for the first instance proceedings. The amount of the court fee depends on the value of the matter in dispute. Under specific conditions the exemption of payment of the court fee is possible. Once the claimant has paid the court fee, the court serves a copy of the statement of claim on the defendant and the latter is given limited time to submit his statement of defense. A defense plea must contain a statement of grounds otherwise it shall be deemed not to be lodged. In the majority of cases the judge will look at the evidence on a main hearing, where the presence and an active role of both parties is demanded.

Slovenian Civil Procedure Acts stipulates important sanctions in case of party`s inactivity. If neither of the parties appears at the settlement hearing, or at the opening hearing if the settlement hearing has not been fixed, the action shall be deemed to have been withdrawn by the plaintiff. If both parties fail to appear at a subsequent hearing, the court shall decide on the basis of the file provided the hearing at which evidence was taken has been conducted and the facts sufficiently cleared (judgment on the basis of the file).

In proceedings before a local court, any person having full contractual capacity may act as a proxy. In proceedings conducted by district and higher courts and by the Supreme Court, only attorneys or other persons who have passed the bar exam may act as a proxy. A law firm may also be empowered for representation in court proceedings. A Slovenian attorney can act as a proxy before any Slovenian court since the Slovenian civil system does not state any territorial limitations for the practice of attorneys.

Settlement

Judges are obliged to attempt court settlement at the beginning of the first hearing in any dispute before court procedure is continued (article 305a et seq CPA). Court settlement is also possible afterwards, at all times during proceedings before the court of first instance. Such settlement may involve the whole claim or only a part thereof. During the proceedings, the court will advise the parties of the possibility of settlement, and will help them settle the matter in dispute. However, a court settlement is not permissible in respect of claims of which the parties cannot dispose. Upon the passing of a decree barring the conclusion of a court settlement, the court will stay proceedings until such decree becomes final.

Hearings

As already said a trial with several oral hearings is a general rule of Slovenian civil procedure. A trial is primarily controlled by judges. They open, chair and close the oral hearings, allow participants to speak and may also ask the speaker to fall silent again. They are first to question parties, witnesses and expert witnesses. If the parties fail to state the relevant facts or to produce evidence in statutory or court – ordered timeframe, the court might disregard them.

As an exception to general rule, CPA also gives a possibility for faster proceedings by providing the rules for the so called »small claim procedure«, used in disputes on non-monetary claims where the amount of claim does not exceed 2.000,00 EUR. This procedure is expedited and based mainly on written pleadings.

Disclosure and burden of proof

In civil litigation, each party has to prove the facts that support its position. If a party fails to do so, the court may decide in favor of the other party. The facts to which a party has admitted in the court need not be proved, the same applies for acts presumed to be existing by virtue of statute and generally known facts. The court may decide to establish the facts which the parties have not stated and produce the evidence which they have not adduced when the course of hearing and production of evidence shows that the parties intend to perform dispositive acts which they are not entitled to perform. However, the court may not found its judgment upon the facts on which the parties have been denied the opportunity to be heard.

Main types of admissible evidence in civil proceedings are inspection by the court, documentary evidence, witnesses, experts and the examination of the parties.

There is generally no obligation in the CPA imposed on the party to provide documents and other evidence unfavorable to it pending trial. If certain documents were destroyed or a certain piece of evidence is missing it is up to a judge to decide which facts will be deemed to have been proven, according to the principle of free weighing of evidence. However, if a party adduces a document as evidence to support their statements, asserting that such document is kept with the opposing party, the court shall order the latter to submit such document within a specified period of time. If a party who has been ordered to submit a document asserts that it is not in possession thereof, the court may produce evidence to determine the truth of this assertion. If a party that has the document in its possession does not comply with the decision to submit it or against the court’s belief negates that it possesses it, then the fact that the opposite party wished to prove with that document is considered proven (article 227 CPA). The rights of the parties related to withholding of documents are governed by reference to the rights of the parties not to testify. Therefore parties are not obliged to produce documents, protected by certain privileges (like privilege against self-incrimination, trust related privilege – between the client and the lawyer etc.).

Litigation costs

Litigation costs include the expenses incurred during or due to the litigation (including court’s fees, lawyer’s fees, etc.). Each party shall advance the payment for costs incurred by procedural acts performed or caused to be performed by them. Claimant is therefore not required to provide security for the defendant’s costs. The court in its final judgment decides which party has to bear the costs of the proceedings.

As a general rule, the party losing the litigation shall refund the costs incurred by the winning party. If one party wins the litigation only in part, the court may decide, with respect to the outcome of litigation, that each party cover their own costs of proceedings or may, considering the circumstances of the case, order one party to refund the other party an appropriate amount of costs (article 154 CPA). If the litigation is brought to an end by conclusion of a court settlement, each party shall bear its own costs of proceedings, unless otherwise agreed upon by the settlement (article 159 CPA).

In deciding which costs are to be refunded to a party, the court shall take into account only the expenses that were indispensable for the litigation. Such costs shall be determined following a careful examination of the relevant circumstances. Irrespective of the outcome of litigation, the party shall refund the opposing party the costs arising due to default of, or the accident occurring to, the former. The party may request the refunding of costs until the completion of the main hearing and before the ruling on refunds has been passed. The motion for refunding of costs shall be determined in the judgment or decree by which the proceedings are completed (article 163 CPA).

Class action

Class actions including a number of unidentified persons are not permitted; neither are there generally other forms of collective redress. Nevertheless, Slovenian Civil Procedure Act allows several person to sue or be sued by the same action (co-litigants) if the following conditions are fulfilled:
(i) if in respect of the cause of action the co-plaintiffs or co-defendants form a legal community; or if their rights or obligations are based upon the same factual and legal ground; or if they are joint and several debtors or creditors;
(ii) if the disputed claims or obligations are of the same type and based upon similar factual and legal ground and at the same time the same court has the subject-matter and territorial jurisdiction over each of the claims and each of the defendants; or
(iii) if is so provided by law (article 191 CPA).

Furthermore, when there are several complaints filed at the court whereby their claims are based on the same or similar factual basis and at the same time their legal basis is the same, the court has a possibility to perform a ‘model proceeding’ on the basis of one complaint (which should be dealt with preferentially) and temporarily suspend all others (article 279b CPA).  The court decides about the suspended proceedings (if they do not have any special features) considering the final judgment in the model proceeding. The court shall give the parties an opportunity to make a statement about suspension of the proceedings and realization of the model proceeding, but no objection is possible against a decision on suspension of the proceedings and performance of the model proceedings.