Amendments of the provisional measures concerning judicial, administrative and other public-law affairs

Authors: Helena Butolen, Lenart Kmetič

We have previously reported about the adoption of the Act on Provisional Measures with Respect to Judicial, Administrative and Other Public-Law Affairs for the Control of the Spread of the Contagious Disease SARS-CoV-2 (COVID 19) (the “Act on Provisional Measures”) and two orders on special measures adopted by the President of the Supreme Court of the Republic of Slovenia on 30 March 2020 and 8 April 2020. The above acts introduced a number of provisional measures, which have severely restricted the course of judicial and administrative proceedings, and limited decision-making in them to only urgent matters.

With the intention of gradually restoring normal operation of courts and administrative bodies while continuing to prevent the spread of COVID-19, the Parliament of the Republic of Slovenia on 28 April 2020 adopted the Act on Amendments of the Act on Provisional Measures, with which it aims to alleviate some of the measures adopted in the judicial and administrative field.

Pursuant to the amendments, Slovenian courts shall now again be able to conduct hearings, decide and serve court decisions also in judicial matters, classified as non-urgent, provided that such acts can be safely performed in accordance with the measures prescribed by the President of the Supreme Court, and further provided that the conditions on individual courts enable such performance. Hence, decision-making and serving in non-urgent cases is not regulated uniformly throughout the country, but also individual courts may decide on how to perform their future operations, taking into consideration their security capacities in view of the technical, spatial and human capacities of the court. Nevertheless, relevant deadlines for courts and parties (e.g. deadline for an appeal) do not run in non-urgent matters, even if a party is served with a court decision. The courts are obliged to inform the parties (in the court decisions, on the envelope or in any other attached document) about the date from which the deadlines shall again start to run (i.e. after the expiry of the provisional measures).

Also the provisions of the Act on Provisional Measures pertaining to the proceedings under the Financial Operations, Insolvency Proceedings, and Compulsory Dissolution Act are amended. Thus, in insolvency proceedings the courts shall now be able to consider also late applications, motions, statements, objections and other procedural actions of the parties, if a party has missed a deadline or a hearing during the validity of provisional measures for a reason directly related to the COVID-19 epidemic, and the court has not yet issued its decision. In such case, the party is obliged to demonstrate the reason for the delay when submitting the application. This solution allows the continuation of insolvency proceedings, but it might be expected that it shall also cause quite a few problems in practice.

Similarly as in judicial matters, the amendments of the Act on Provisional Measures also broaden the scope for decision-making in administrative matters. In this area, the amendments go a step further in releasing provisional measures, as it is now, in addition to decision-making and serving in non-urgent matters (this has been possible so far only in urgent matters), allowed to conduct oral hearings and other procedural actions, where the authority official, party or other participant are in direct contact. Understandably, such actions can only be conducted under the condition that the health of those present is protected and that the spread of the virus is prevented.

The amendments of the Act on Provisional Measures also refer to serving in administrative matters. As the proposer and the legislator are of the opinion that personal serving in administrative matters shall be, due to the required direct contact, too risky from the viewpoint of the spread of the virus (unlike as in relation to service in judicial matters, where the releasing of measures is aimed to allow personal service, which requires direct contact between the service provider and the recipient of the court decision), the amendments in this respect provide a different solution. Thus, in non-urgent administrative matters, serving of decisions and other documents, which would otherwise have to be served in person, is executed by delivering the document to a mailbox, post-box or electronic mailbox (without the need to be a secure electronic mailbox). Documents delivered in such a way are considered served on the sixth working day from the date of dispatch (or when delivering abroad in a physical form, on the twentieth working day from the date of dispatch). In case of doubt about the efficiency of serving, the serving and the date of serving must be proven by the sender, whereby efficiency of serving can be verified by telephone, electronically or by use of other means. If efficiency of serving to the addressee cannot be proved, serving has to be repeated. The amendments of the Act on Provisional Measures do not determine whether the re-service is to be performed under the general rules of the administrative procedure or whether the serving under the respective Act is sufficient.

The amendments provided for in administrative matters are without prejudice to proceedings in relation to minor offences, where, as in the past, it shall only be possible to decide and serve documents in urgent cases.

It also has to be considered that in addition to the above, individual judicial matters are also governed by other intervention acts adopted in relation to the COVID-19 epidemic, namely the Act on Intervention Measures for Suppression of COVID-19 Epidemic and Mitigation of its Consequences for Citizens and the Economy (the “Intervention Act”). On 28 April 2020 the Parliament adopted the Act on Amendments to the Intervention Act, which introduces certain changes to applicable provisions of the Intervention Act.

In accordance with the amendments of the Intervention Act, salary compensations, received on the basis of COVID-19 related intervention acts, are no longer excluded from enforcement under the Claim Enforcement and Security Act or from tax enforcement under the Tax Procedure Act (previously all benefits received on the basis of such intervention acts were excluded). Furthermore, enforcement proceedings related to urgent matters are no longer suspended (previously only enforcements based on a claim for legal alimony and damages for lost alimony due to the death of the alimony provider were excluded from suspension).

The Act on Amendments to the Intervention Act also includes the following changes to provisions related to insolvency proceedings:

• in cases when a petition in bankruptcy is filed by an employee of a company (with reference to the non-rebuttable presumption provisioned by the Intervention Act), the employee is exempt from paying the advance payment otherwise required for the start of the proceeding;
• suspension of the obligation to file for bankruptcy or compulsory settlement proceeding does not apply in cases where there is no prospect that the company will be able to resolve its insolvency;
• it is considered (in addition to existing situations) that the company’s insolvency occurred as a consequence of declaration of the epidemic, if the company was not insolvent on 31 December 2019;
• the debtor may request that the court postpones the deliberation on a creditor’s petition in bankruptcy for four months, if the company’s insolvency occurred as a consequence of declaration of epidemic and if the creditor files the petition in no later than three months (previously two months) after the intervention measures cease to apply; and
• if the court postpones the deliberation on a creditor’s petition in bankruptcy, the relevant enforcement court can, based on the application of the debtor, also suspend the enforcement proceeding for the same time period.

Both acts were adopted through an urgent procedure and entered into force on 1 May 2020.