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WG Independence-Efficiency > Meetings > Würtzburg 2007 > Questionnaire on the Independence and Efficiency of administrative Justice: Slovenia

Questionnaire on the Independence and Efficiency of administrative Justice: Slovenia

I./ Personal Independence of the administrative Judge:

Indicate the ways in which judges are selected/appointed for/to administrative Justice as well as the terms and nature of the judicial selection/appointment:

Describe the selection/appointment procedure that is applied in your country

There is a Judicial Service Act, where selection and appointment of judges is regulated. The selection of the candidates for judges is done by the Judicial Council. Then the selected candidates are elected to become judges by the Parliament of the Republic of Slovenia.
What are the terms of this procedure?

Administrative judges in Slovenia are higher court judges, so they have to fulfil the conditions, which are required for higher court judges. The requirements are: - citizenship of Slovenia and active in writing, reading and speaking Slovenian, - legal degree, - bar (law) exam, - an upright character and personal characteristics, needed for successfully attending to the position, - previous work as a judge for at least six years or at least nine years of work experiences in the field of law after passing bar (law) exam or at least ten years of work experiences with decision making in the field of administrative cases (only for administrative court judges).
Is there specific professional background such as previous work record in the administration or general legal training included?

Yes, there is.
What are the possible contents examined during this procedure?

Who meets the decisions in the course of the selection/appointment procedure and who selects and appoints the aforementioned decision –makers?

The Judicial Council is the body of eleven respectable lawyers. Six of them are elected among judges themselves. Five of them are nominated by the president of Slovenia among law professors, attorneys at lay and other lawyers and elected by the Parliament of Slovenia.
Does the law provide for judicial remedies against decisions concerning appointment/selection?

Yes, it does. It’s possible to file a lawsuit before the Administrative Court.
Does there exist any difference in the way the selection/appointment of judges of the civil/penal courts takes place?

No.
Is it possible for “external candidates” to be appointed as judges at different court levels and instances?

Yes, it is.
Are those legal provisions concerning the ways of selection/appointment of judges constitutionally entrenched?
Yes, but only in general (article 130 in the Constitution of Slovenia).

Describe in brief the conditions of service and tenure (security of tenure, suspension and removal, transfers etc.) of the judges:

Is the term of judicial appointment for life?

Yes.
Is it possible to extent the term of service of judges beyond retirement age? In this case who has the power to take the decision?

Judges have to retire by the age of 70.
Is it possible to appoint temporary judges?

No. But there are discussions about that between the Minister of Justice and the judiciary.
Is it possible for the judge to be removed or transferred and under what specific terms?

Yes, it is, but the judge has to agree to be transferred to another office. Exceptionally it is possible that the judge is transferred without his/hers agreement.
Where does the power of removing or transferring judges from one office to another lie?

In the Judicial Service Act (articles 66 to 71c).
Is it possible to transfer between the different divisions and types of courts?

Yes, but on the same level or lower level of courts. For example: higher court judge can be transferred to the local or district court or some other higher court, but can not be transferred to the supreme court (because he/she does not have the position of the supreme court judge). But it is possible to be assigned to the higher level of court (for example a higher court judge can be assigned to the supreme court).
Is it possible to transfer to government administration and back?

Yes.
Does a transfer to the administration have a career-promoting effect?

I don’t think so. But right now quite a few judges have been transferred to the Ministry of Justice till the end of Slovenian presidency of EU.
Is incompetence a ground for removal of a judge from the bench?
Yes.

Financial security (salaries, remunerations, pensions etc.)

Who decides about judges’ salaries?
The salaries of judges are determined by law.
In what way and under what conditions are the salaries of judges increased? Are they accompanied by annual cost-of-living adjustments?

They are increased only by law. But annual cost-of-living adjustments are possible.
Is there a need for executive approval or executive decision to initiate the increase?

Yes.
Is it possible for the judges to initiate judicial proceedings against the State with regard to their remuneration and which are the competent courts in this case?

No.
Is there a uniform salary scheme for all courts, divisions and types?
Yes.

Career prospects (promotions etc.)

Describe briefly the ways in which the promotions of judges are made. What kind of procedures are to be applied in this context?

Judges can be promoted in two ways: 1. on the same level of the judicial function (every three years) – they are promoted to the higher salary class; 2. to be promoted to the higher level of judicial function (for example a district court judge become a higher court judge). The decision about the promotion is made by the Judicial Council on a proposal of a judge.
Indicate the competent body for the promotions and the criteria applied thereto.

Judicial Council.
Regular promotion – every three years (promotion to the higher salary class), except if he/she does not fulfil the criteria for promotion.
Promotion to the higher level of judicial function – criteria: professional knowledge, results of work, seniority, PhD...
Are judges of the administrative courts promoted to the Supreme Administrative Court and under what conditions (seniority etc.)?

Yes, they are. The same criteria as mentioned above (3.2.).
Can judges accept any government assignment after retirement?
I think they can.

Standards of conduct (professional and service Code, public activities, law-related activities etc.)

Can a judge be involved in law-related activities (arbitration, law practice, writing books)?

Yes.
Can a judge be involved in business activities?
No.
Is the judge entitled to sideline employment?

No.
Is there a Code of conduct of judicial behaviour?

Yes.
Is there a Commission on Judicial Conduct or any other body to supervise the behaviour of a judge?

No, except the above mentioned Judicial Council.
Describe the restrictions - if there are any - on judges’ right to express their views?

They are not allowed to give information about the legal cases before the final decision and they are not allowed to be members of the bodies of political parties.

Inspection of judges and disciplinary proceedings

Who is in charge of the inspection of judges and in what way is this inspection conducted?

There is an inspection of judge’s work (quality and quantity), in charge of which is the president of the court and the court of higher level. There is also a disciplinary inspection, in charge of which is the disciplinary tribunal.
Are there specific criteria for the evaluation of the performance of judges?

Accuracy, speed, lack of disciplinary offences.
Who holds the legal power to initiate disciplinary proceedings against the judge?

The proposal for the inspection of the judge’s work can be given by the Judicial Council, Ombudsman, Minister of Justice, president of the court of the higher level or president of the supreme court.
The proposal for the disciplinary inspection can be given only by the disciplinary prosecutor.
Who decides the disciplinary tribunal and its composition? Is it permanent or ad hoc?

The members of the disciplinary tribunal (these are eight judges: two supreme court judges, two higher court judges, two district court judges and two local court judges) are appointed by the Supreme Court judges for the period of two years and can be reappointed. The proposal is given by the Judicial Council.
Is there a legal remedy against the decisions of the disciplinary body provided for by law?

Yes, there is the possibility of the appeal against the decision of the disciplinary tribunal of the first instance to the disciplinary tribunal of the second instance.
Is there a special procedure for investigating and prosecuting a judge?
Yes.

II./ Functional and Institutional Independence of administrative jurisdiction:

II.a./ General aspects

Separation of powers and judicial independence

Indicate who is responsible for the central administration of administrative jurisdiction

Ministry of Justice.
Individual and collective independence of the judiciary

There is the separation of powers in Slovenia. The judicial power is exercised by the independent courts.
Is it possible for sanctions (of any kind) to be imposed on a judge based upon the content of his/her decision?

No.
Can a judge face disciplinary charges solely on the basis of the substance of his/her ruling? Is this the case when a judge declines to follow a supreme court’s decision?

No.
Do you think that accountability of judges threatens judicial independence?

No, as long as there is the separation of powers and judges can freely make his/her own decisions, based only on law.
Can a judge be held liable in civil actions for his/her judicial acts (e.g. be sued for damages for actions taken in his/her judicial capacity)?

Yes.
Are judges immune from prosecution in other courts for their judicial acts?

Yes.
Can criminal charges be brought against a judge for actions on his/her duties?

Yes.
Do judges face sanctions for “decisional conducts”?

No.

Judicial administration at the Court level (division of work among judges and assignment of cases etc.)

Is the division of work among judges and the assignment of cases to each judge or panel done according to a predetermined rigid plan or is it flexible and may be changed easily?

There is a predetermined plan (order of the first letter of the name of judges), but this plan is always to the certain extent flexible.
Who is in charge of case assignment?

The president of the court.

Self - administration of justice

Is judicial administration effected through independent judicial self-governance?

The president of every court is in charge of judicial administration.
Describe briefly how the governing body/committee is elected?

Is there any restriction for the members of the above body to participate in other syndicalistic bodies?

Human, financial and material resources necessary for the performance of judicial functions

Who is responsible for the administrative staff employed in the courts?

The court secretary, according to the plan (about how many different administrative staff members particular court needs), which has to be approved by the Ministry of Justice.
Who is competent to make available the necessary funds for the performance of justice?

The Ministry of Justice.
Who has the power to execute and spend the budgetary allocations?

The president of the court in cooperation with the court secretary.

II.b./ The relation between administrative jurisdiction and other powers:

Relations with the executive (the influence of the Administration on the judge etc.)

Have there been cases of executive pressure on judges in any form?

There are some anecdotes, but none of them has been confirmed in any way.

Can judges be members of the Government?

No. If a judge is elected as a member or the president of the government, the judicial function is inactive for the time of the tenure.

Is it allowed for judges to participate in administrative bodies having decisive or consultative competences?

Yes, as far as it does not interfere with the judicial function.

Do the administrative courts have the power to challenge administrative acts of general character (presidential decrees etc.)?

No, except if such acts regulate individual legal relationships or if it is specifically stipulated by a law.

Relations with the legislature (retroactive legislative reversals of cases etc.)

Can the legislature override a decision of a court if they disagree with the way the latter has applied or interpreted a law?

No.

Have there been retroactive legislative reversals of court decisions?

No.

Has there been legislation abolishing courts with results of statutory removal of judges and if so, how was it received?

No.

Pending cases?

No.

Can judges be members of the legislature?
See II.b-1.2

Do the administrative courts have the power to challenge laws?

Yes, they can challenge them in the Constitutional Court.

Interest representation of administrative judges

Are judges organised in associations for furthering their rights and interests?

Yes, there is an Association of Judges.

Are there separate professional representations for administrative judges, or a joint association of judges?

No, the Association of Judges represents the interests of all the judges.

What are the specific activities of the aforesaid association? Describe them in brief.

Representation of the interests of the judges regarding their status, occasional organisation of training, activities regarding the definition of Code of Conduct.

Do judges have the right to strike or to hold a demonstration?

The right to strike is restricted by the law. The right to hold a demonstration is not restricted, but the actual exercise of this right is rather unlikely.

II.c./ The relation between administrative jurisdiction and the society:

The administrative judge and the media scrutiny (the press, the judiciary and the courts, criticism of judicial decisions etc.)

Is criticism of judges, judicial decisions and judicial conduct in the press existent, frequent, rare? What are the relevant grounds for this? Could you give major examples?

Frequent, mostly regarding high-profile cases. The reasons are usually the decisions by the courts which seem to be wrong or untimely in the view of the general public or the reporters.

Are trials open to T.V.?

No, only the formal opening.

Do you think that press reporting and commenting on judges, courts, judicial decisions and matters pending before the courts poses a challenge to judicial independence?

No, not directly, but it certainly exposes the judges to pressure which could, though in a very indirect manner, influence their decisions.

The administrative judge and the public opinion

Do you think that a judge’s engagement in politics or speaking his/her mind in favour of a political party compromises the public confidence in the judiciary?

Without any doubt, especially in the field of administrative law. A recent opinion of the Judicial Council confirms this view.

Are there institutions that favour strong public opinion in defence of the independence of the judiciary?

No, except for some parts of the judiciary itself.

Judges and politics

Is it allowed for judges to become member of political parties?

It is not expressly forbidden, therefore no.

Are there any major restrictions for judges with regard to their political activities? What are the consequences in case of breach?

There are no direct restrictions, but such activities could be interpreted as disciplinary offences or breaches of the Judicial Code of Conduct.

Are there any other restrictions for judges as far as their public activity is concerned?

It is forbidden to express opinions about pending court cases.

Have there been cases where political leaders attacked the judges and criticised their decisions?

Quite numerous.

III./ Efficiency in the internal organisation of an administrative jurisdiction.

The judge and his work

Describe briefly the kind of the initial training and the qualifications of an administrative judge prescribed by law and his further education and/or formation, inter alia in European law, emphasizing more particularly the aspects which might help the judge to improve the efficiency of administrative justice.

An administrative judge has the status of a judge of a court of appeals and should meet all the respective criteria set by the Act on judicial Service. This includes at least 6 years of successful performance of judicial duties or at least 9 years of other experience in the field of law. Other criteria include a degree in law complemented by the State Examination, citizenship, command of the language, personal suitability and some other minor criteria. Consequently, most of the newly appointed judges are experienced professionals and can be included directly in the programme of the continuous training, without much need for initial training. European law is included in these programmes.

Do you think that a higher salary paid to the judge and, more specifically, other (material) advantages which may be granted to him in consideration of the output might help to improve the efficiency of administrative justice?

Yes, in a very direct way: presently, the competition for experienced lawyers is rather hard and the courts in general, and especially the Administrative Court, can’t compete very well with the current salaries.

Please indicate the number of administrative judges in your country and compare it to the population being under their jurisdiction (an average number can be indicated per country).

Approx. 50.000 inhabitants per judge, including both instances.

Please indicate the number of legal or other assistants (including clerks, secretaries …) working for the administrative jurisdictions, indicating more particularly the average number per judge working at an administrative court.

Approx. one legal assistant per 3 judges.

Describe briefly the working conditions of an administrative judge in your country, emphasizing more particularly the technical means which are at his/her disposal, as well as legal or other assistants helping him/her in his/her duties, his/her access to libraries and data bases, access to internet and so on…

Every judge is equipped with a computer, which enables full access to
The databases of legislation, court practice and legal publications
Electronic issue of the Official Gazette form 1991 on
Internet
Combined database of the public libraries in Slovenia
Company and land register
Several utility applications, such as calculation of interests
E-mail
The commonly used literature is obtained by the court and leased to judges. Less common literature is available in the small court libraries in through the Central Judicial Library. This library is also quite open for any suggestions for procurement of foreign literature.

Describe briefly the internal working regulations of an administrative court and more particularly the way in which the work is distributed among the judges, the person in charge of the distribution of the work to be done by the respective judge and of the control of his/her work, indicating inter alia the criteria according to which the way of distribution is decided as well as the criteria according to which the work of the administrative judge is controlled, as well as the possible sanctions which may be taken against the judge who does not fulfil the legal or internal requirements concerning the quality of his/her work. Describe in this context internal control procedures (if there are any).

The work is distributed according to pre-determined rules by a computer programme. The only modification to this method is partial specialisation in certain legal fields. However, also this specialisation takes place at the level of court departments and not individual judges. The quantity of work is monitored on a monthly and yearly basis and checked out against minimum standards set by the Judicial Council. Failure to meet these standards invariably leads to disciplinary procedure. The quality of work is monitored on a yearly basis and has no direct consequences. However, every three years a detailed evaluation of a judge’s performance is prepared and a negative evaluation means automatic dismissal from the office.

The jurisdictional procedures

Describe briefly the access to administrative justice, indicating more particularly whether the complaint or file has to be introduced by a lawyer or any other professional and the conditions under which the plaintiffs may have access to legal assistance. Can you also indicate whether the procedures are accomplished only on a written basis or whether also oral hearings take place, indicating in which cases such oral hearings are organised and the persons who, at these occasions, are allowed to make oral submissions to the court.

The initial complaint may be filed by the parties themselves. The appeals should in principle be drafted by professionals. The parties have access to free legal assistance if they prove that the fees for a lawyer would endanger their livelihood and that there is a probable cause. Oral hearings are prescribed by the law as a principle; however, in practice it is more of an exception.

Describe briefly the different types of procedures which can be introduced at an administrative court, insisting inter alia on the differences existing between those procedures.

A plaintiff can file a complaint against an administrative decision affecting his or her rights, a complaint against individual act or decision of an institution affecting his or her constitutional rights and the acts issued in a form of a legal norm insofar they affect individual legal relationships. There are no pronounced differences between the procedures following the different kinds of complaints. An interim relief can be pursued following any of the complaints mentioned above.

Describe briefly the different steps of the procedures to be followed at an administrative court of your country, starting with the date the file is introduced until the date the judgment is pronounced, insisting more particularly on the deadlines which may have to be respected by the parties in order to introduce written notices, briefs, pleadings, statements as well as on the deadlines to be respected by the judge to pronounce the judgment.

A defendant has a right to reply to the complaint in not more than 30 days (less in some cases). If a third party could be affected by the decision, they are given a status of the party in the procedure and notified of their rights. After that, either a date for a hearing is set or the case is decided by a panel. The written decision has to be issued within 30 days (less in some cases). There is also (limited) possibility of appeal and extraordinary legal remedies.

Describe briefly the internal organisation of an administrative court, and indicate whether the judges are working in chambers or if they are acting as individual judges, as well as the criteria according to which a case is dealt with either by a chamber or by an individual judge.

The court is divided into departments, specialising in individual legal fields. However, every judge gets a share of “general” cases which do not require any special knowledge. In principle, the court decides in panels of 3 judges. An individual judge may decide simpler cases, after they were declared as such by a panel.

Which kind of procedures do apply in case an urgent matter of any kind is introduced with an administrative court? Indicate also what kind of decisions may be taken by the judge dealing with this kind of urgent matters.
What kind of interim measures or measures of suspensive effect may be granted by
your Court upon the receipt of a complaint?
a) suspension of the administrative act complained against,
aa) becomes effective when served to the parties,
bb) may also have retroactive effect,
b) my Court may order any interim measure deemed necessary when the interests
of justice so require.
What are the legal criteria for a decision to give an order of suspensive effect or
order an interim measure?
a) Does the prospective outcome of the proceedings have any relevance?
b) Please give a short description of the content of the legal provisions concerned.

An urgent case is marked as such and immediately forwarded to a judge. The deadlines (prescribed by the law) for a decision in these cases may be as short as 24 hours or 3 days.
There is no retroactive effect of interim measures.
Interim measures with suspensive effect can be granted if the plaintiff demonstrated that he would suffer serious and irreversible damage otherwise. In addition to that, the principle of equality has to be taken into account.

Indicate the types of control the administrative court may exercise over the activities of the administration or over the decisions taken by it: is it a control only of the legality of its decisions or can the judge also control whether the discretion was used by the authority in the spirit of the law? Is the judge allowed to take a decision instead of the administrative authority? Do there exist other types of control procedures?

All three possibilities exist.

Indicate the delays of the procedures introduced with an administrative court, starting from the date of introduction of a complaint until the date the judgment is pronounced (average delays).

Approx. 1 year in average cases. Urgent cases are dealt with without delays and complicated cases may take longer.

Is there any remedy against undue length of the proceedings for the parties of the
proceeding before courts? Is this
a) a remedy provided by law (please give a quotation of the legal provision)

There is a specific law dealing with this matter, providing several remedies, from initiating supervision procedures to financial compensation.

b) a remedy of informal character (please give a short indication of its content).
What may be the result of such a remedy?

Usually, a request for speeding the procedure is filed by a party. If it is grounded, the case is given priority.

a) actual acceleration of an individual proceeding
Yes.
b) payment of just satisfaction
See above.
c)reduction of a penalty imposed
No.
d)disciplinary measures against individual judges
Not usually.
Which authority is responsible to deal with such a remedy?
a) the president of the Court
Yes.
b) a supervising judicial body
Not usually.
c) an administrative authority
In some cases the MoJ.

Which kind of means are at the disposal of the administrative judge (or the parties) in order to provide for a correct execution (enforcement) of the judgment. Does the judge have the possibility to give injunctions to the administration? Do there exist specific procedures which the parties may use in case the administration does not voluntarily execute the judgments?

The administrative judge has no control over the execution of the decision. The remedies of the parties are limited to renewed court procedures.

Which kind of new technologies are at the disposal of the administrative judge and do the procedures to be followed at the administrative court provide for the possibility to use standard forms or electronic transmittal techniques (for example, are the parties allowed to introduce the briefs by way of mail or other electronic transmittal systems) ?

For use of IT, see above. The dockets and calendars are completely computerised and accessible from judges’ computers. Electronic filing is planned but not yet implemented.

Do the administrative courts in your country possess central computer systems to which all judges are linked, and comprising inter alia data bases, general information, laws, procedural acts, access to electronic files and so on

Yes, see above.

Indicate whether you think that the facilities used by the administrative courts and the means put at the disposal of these courts by the State are appropriate and, if this is not the case, indicate the problems you have noted in this context and the possibilities to remedy.

I think that the facilities are appropriate.

Indicate the total amount of money spent by the State to ensure the functioning of administrative justice, compared to the total amount of the State budget

Do there exist alternatives to the contentious proceedings, for example mediation, arbitration procedure and so on in your country?

Not in administrative justice.

Which kind of effective legal remedies can be used against a judgment of an administrative court of first instance?

As a principle, there is no regular legal remedy. In some cases, specifically determined by the law, appeal to the Supreme Court is allowed. There is also a possibility of extraordinary legal remedies regarding exclusively points of law.

IV./ Efficiency in the relations of an administrative jurisdiction towards third parties

Access by the public or the parties to the information held by the administrative courts

Do the administrative courts in your country have a person in charge of the relations with the press (press speaker)?

No.

Do the administrative courts in your country prepare annual reports about their activities? Is this report available to the public? To whom/ or to which body this report is it addressed?

Yes. The report is available to the MoJ and the Supreme Court.
Does there exist a possibility to access by internet or by any other means the judgments pronounced by the administrative courts and other documents which might be relevant for the public/parties?

Selected decisions are available on the internet.

Do the parties of the case pending at an administrative court have the possibility to get information, by electronic or other means, about their file and the state of the proceedings

Yes, but not electronically.

Do the administrative courts of your country have the possibility to exchange information or experience with other national or international courts or with courts situated in other countries and, if this is the case, could you give more information about this kind of exchanges?

There are no restrictions for such exchange. In practice, it mostly takes place through participation of individual judges in international seminars and training events.

Control of the activities of the administrative courts

2.1 Do the administrative courts prepare statistics about affairs settled during the judicial year, about the stock of affairs pending and about the number of affairs dealt with by individual judges?

Yes.

2.2 Do the administrative courts possess electronic systems to ensure the follow-up of the affairs pending (e.g. electronic file system…)?

Yes.

2.3 In your country, are there mutual or internal evaluations (on periodical basis) of the quantity and quality of the work to be done by the court? Which is the body which is competent to prepare this kind of evaluations, are they done by the court itself or by any other bodies, authorities or courts? Do there exist control procedures of the judicial work done by the administrative judges and, if this is the case, by which kind of authorities (national or international) are these procedures accomplished?

Such evaluations are a part of the annual report as mentioned above. Individual evaluations of the judges are prepared every 3 years by the Personnel Panels and evaluated by the Judicial Council.

2.4 Which kind of sanctions may be taken against individual judges in case of misbehaviour or in case the work to be done by judges has not been delivered in certain delays
Disciplinary procedures, which can be followed by sanctions ranging from reduction of salary to dismissal from the office.

2.5 Do there exist compensation procedures in case of errors committed by the court or individual judges or in case of delays in the proceedings? If this is the case, could you briefly describe the kind of compensation procedures which may be used by the victims of such errors or delays.

There are no special compensation procedures; the usual civil procedure has to be used.

2.6 Do there exist possibilities for the public or the parties to introduce complaints against the way the administrative courts work

Yes, to the president of the court or to the MoJ.

2.7 Do there exist studies about the feed-back of “customers” (in a broad sense of meaning) of administrative justice, on the bases of inquiries made among the public, the parties or their lawyers, about the functioning of the court?

No.

V./ Conclusion

Could you indicate, according to your opinion, which are the factors (concerning organisation or rules of process) that cause malfunctions in the administrative judicial system in your country?

In my opinion, the administrative judicial system in my country operates relatively smoothly, without major problems.

Could you indicate which, in your opinion, might be possible remedies?

Have you noted whether effective measures have been introduced in recent times to improve the system in your country?

A new Act on Administrative Dispute has come into force as per beginning of this year. In my opinion ts efficiency is doubtful, but the actual results remain to be seen.

, inter alia in European law, emphasizing more particularly the aspects which might help the judge to improve the efficiency of administrative justice.