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Title:

Evidence in Civil Law – Slovenia



Author: Tjaša Ivanc



First published 2015 by

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Evidence in Civil Law – Slovenia





Tjaša Ivanc





Evidence in Civil Law – Slovenia



TJAŠA I

1

VANC



ABSTRACT Under the Article 22 of the Slovenian Constitution the right to

equal protection of rights guarantees the right to state the facts and submit

evidence, the right to be present at the taking of evidence and to be

informed on the results of the taking of evidence. The principle of free

assessment is a fundamental principle in Slovenian civil procedure

included in Article 8 of the CPA. In the system of free assessment the

judge is the one to evaluate the evidence without being bound by any

formal rules on probative value of certain evidence. Probative value

depends only on individual belief or conviction of the trial judge in each

matter separately. The free assessment of evidence is the right and duty of

the court to assess each piece of evidence separately and collectively. In

the evidence-taking stage the CPA includes the special rules for each type

of evidence, meant as a minimum guarantee for the right free assessment

of the taken evidence and the free assessment of evidence presupposes

that the evidence were taken by this rules. Even though, court decides

which evidence will be produced for determination of the ultimate facts,

the court is bound by the parties’ right to propose evidence – with their

procedural burden of proof. If the court rejects the proposal of a certain

piece of evidence this rejections must be explained.



In the following book the author discusses the key principles of the law of

evidence in Slovenian civil procedure. The book provides analysis of the

law of evidence, while placing the subject within its theoretical context.

The subject is presented in a logical structure following on from the

introduction of the basic principles through the rules for burden of proof,

types of evidence, costs of evidence, the question of unlawful evidence,

and the cross-border taking of evidence.



KEYWORDS: • civil procedure law • Slovenia • law of evidence •

fundamental principles • evidence taking • burden of proof • means of

evidence • cross border taking of evidence • Regulation No 1206/2001 on

taking of evidence





CORRESPONDENCE ADDRESS: Tjaša Ivanc, Ph. D., Assistant Professor, Faculty of Law, University

of Maribor, Mladinska ulica 9, Maribor, Slovenia, email: tjasa.ivanc@um.si.



DOI 10.4335/978-961-6842-58-7

ISBN 978-961-6842-58-7 (epub)

© 2015 Institute for Local Self-Government and Public Procurement Maribor

Available online at http://books.lex-localis.press.

Tjaša Ivanc, Ph. D.



Author Biography Dr. Tjaša Ivanc is assistant professor on civil

procedure law at the Faculty of Law, University of Maribor. Her areas of

research are European civil procedure law, enforcement law, succession

law and property law. She is a guest lecturer at the Portucalense Institute

for Legal Research, Porto, Universidade Portucalense Infante D.

Henrique.



After obtaining her graduate diploma at the Faculty of Law University of

Maribor she was selected for the position of young researcher to obtain

PhD with the support of Technological research agency of Slovenia. She

was awarded from ministry of economic development and technology for

gaining her PhD and for contributing to the cooperation between scientific

sphere and practice.



Dr. Tjaša Ivanc is author or co-author of several books and scientific

articles in the fields of her interests. She participates in domestic and

international scientific conferences and was an invited lecturer at the

European Justice Training Network – Seminar on cross-border

Inheritance Law, Academy of Justice and at the conference "Europe for

Notaries" from Austrian Chamber of Civil Law Notaries, Vienna.



She cooperated in number of successfully completed international and

national projects (Simplification of debt collection in the EU; Reform of

Non-Contentious Procedure in Slovenia; Medicine and Law; Legal

consistency of ACE, AETS and TOLL+ with 1) European Union Law, 2)

Agreement between the European Community and the Swiss

Confederation on the Carriage of Goods and Passengers by Rail and Road

and transport 3) National Law of Austria, Italy, Germany, Slovenia,

France and Switzerland and possible adjustments in case of

discrepancies). Dr. Tjaša Ivanc is also an expert in the field of immovable

cultural heritage in international and national dimensions. She cooperated

with the Ministry for culture for drafting the amendments of the Cultural

Heritage Protection Act and is author of the only scientific book available

for this research area in Slovenia with the title “Protection of Immovable

Cultural Heritage – legal aspect”.



Currently she is engaged as an expert and researcher in EU project

“Dimensions of Evidence in European Civil Procedure” and several

bilateral research projects.





Foreword





The civil procedure rules enhance the court`s powers to control evidence

and this powers need to be applied in accordance with overriding

objective. Evidence can be described as an information that may be

properly presented to the court to support the certainty of facts being

asserted before it.



In civil procedure evidence is governed by the dispositive principle and

the principles arising out of it. The rights disputed in civil procedure are

private rights, that is, available to the parties. In this regard the parties are

entitled to take action and therefore bring a claim, which means that they

define the court’s powers of decision as it is bound by the parties’

petitions and by all those facts and legal grounds they bring which they

consider appropriate to protect their rights. The parties are responsible for

providing the means of proof they consider opportune for guaranteeing

the successful outcome of their respective claims.



The following book is one of the results of the European project with the

title “Dimensions of evidence in European civil procedure” within

framework programme “Civil and Criminal Justice”.2 The project is

combined initiative involving cooperation between 11 foreign universities

and 28 national reports under the successful management of Prof. Dr.

Vesna Rijavec, University of Maribor, Faculty of Law. This European

research cooperation has already established itself as a key scientific

research network in which the most influential experts in the European

civil procedure law are working together to exchange their expertise and

to contribute to a better understanding of national and unified

requirements in the area of Evidence Law.



The major objective of this project was to explore whether there exists a

common core of European Law of Evidence (and taking evidence in

particular). By providing a clear picture of common core principles, the

project will serve as a starting point for further harmonization or

unification processes in this field. The important objective was to research

the functioning of Regulation (EC) No 1206/2001 as well as cross-border

taking of evidence within the EU, contribute to the development of

mutual trust in order to eliminate obstacles in cross-border civil

proceedings, provide information to individuals and businesses to



2 Official website: http://www.acj.si/en/presentation-evidence.

improve their access to justice and provide training for legal practitioners

with emphasis on communication tech.



The purpose of this book is to provide the explanation of national civil

procedure dealing especially with evidence law regulated in Slovenian

Civil Procedure Act. The book should be a valuable resource to those

involved in the processes of litigation as well as a teaching and research

material.



Therefore, the present book is only one small cornerstone in the mosaic of

more than 22 national reports on evidence law which will serve as basis

for scientific book “Dimensions of Evidence in European Civil

Procedure” published by Kluwer Law International by the end of the year.



The Author





Evidence in Civil Law – Slovenia

T. Ivanc





Contents





Part I .......................................................................................................... 1

1

Introduction................................................................................................ 1

2

Fundamental Principles of Civil Procedure ............................................... 2

2.1

The Principle of Free Disposition of the Parties and the

Officiality Principle ................................................................................... 2

2.1.1 Limitations to Introduce New Facts and Evidence .................................... 5

2.2

The Adversarial and Inquisitorial Principle ............................................... 7

2.3

Audiatur et altera pars Principle .............................................................. 11

2.3.1 Right to be Heard ..................................................................................... 12

2.3.2 Right to Equal Treatment ......................................................................... 16

2.3.3 Sanctions for Passivity or Absence of the Party in the Procedure ........... 17

2.4

Principle of Orality – Right to Oral Stage of Procedure, Principle

of Written Form ....................................................................................... 18

2.5

Principle of Directness or Immediacy ...................................................... 19

2.6

Principle of Public Hearing ...................................................................... 20

2.6.1 Exceptions to the Principle of Oral Hearing ............................................ 21

2.7

Other General Principles in the Slovenian Legal System ........................ 21

3

Evidence Law .......................................................................................... 22

3.1

General Principles of Evidence Taking ................................................... 22

3.1.1 Free Assessment of Evidence .................................................................. 22

3.1.2 Relevance of Material Truth .................................................................... 24

3.2

Evidence in General ................................................................................. 26

3.2.1 Minimum Standard of Proof to Consider a Fact as Established .............. 27

3.2.2 Means of proof ......................................................................................... 27

3.2.3 Duty of Parties and Third Persons to Deliver Evidence........................... 32

3.2.4 Value of Judicial and Administrative Decisions as Evidence .................. 33

3.3

General Rule on the Burden of Proof....................................................... 34

3.3.1 Main Doctrine Behind the Burden of Proof ............................................. 34

3.3.2 Proof Standards ........................................................................................ 35

3.3.3 Rules Which Exempt Certain Facts from the Burden of Proof ................ 36

3.3.4 Duty to Contest Specified Facts and Evidence ........................................ 37

3.3.5 Doctrine of iura novit curia ...................................................................... 37

3.3.6 The Duty of the Court in the Event of Incomplete Statements or

Proposals for Evidence ............................................................................ 38

3.3.7 Collecting Evidence ex officio................................................................. 39

3.3.8 Ordering Persons Other than Parties to Submit Evidence........................ 40

3.4

Written Evidence ..................................................................................... 40

3.4.1 The Concept of a Document in Slovenian Legal System......................... 40

3.4.1.1 Video or Audio Recording as a Type of Evidence .................................. 41

3.4.1.2 Electronic Evidence ................................................................................. 42

3.4.1.3 Electronic Signatures ............................................................................... 45

ii

Contents



3.4.5 Different Categories of Documents .......................................................... 45

3.4.6 Taking of Written Evidence ..................................................................... 46

3.5

Witnesses ................................................................................................. 47

3.5.1 Secrets (e.g. Business, State, Military, etc.) and Taking of

Evidence ................................................................................................... 48

3.5.1.1 The Question of Declaring Information as a Business Secret .................. 51

3.5.1.2 State Secrets and the Question of Testifying by a State Official .............. 52

3.5.2 Priviledge Witnesess ................................................................................ 52

3.5.2.1 A Case of a Journalist as a Witness .......................................................... 52

3.5.2.2 A Case of a Priest as a Witness ................................................................ 53

3.5.2.3 A Case of a Medical Doctor a Witness .................................................... 54

3.5.2.4 A Case of an Attorney as a Witness ......................................................... 54

3.5.3 Obtaining Evidence from Witnesses ........................................................ 54

3.6

Taking of Evidence .................................................................................. 55

3.6.1 Rejection of an Application to Obtain Evidence ...................................... 57

3.6.2 The Hearing .............................................................................................. 59

3.6.2.1 Presence and Participation of the Parties.................................................. 60

3.6.2.2 Direct and Indirect Evidence .................................................................... 60

3.6.2.3 Technology Used for Collecting Live Testimonies .................................. 61

3.6.3 Witnesses ................................................................................................. 61

3.6.3.1 Expert Witnesses ...................................................................................... 62

3.7

Costs and Language ................................................................................. 65

3.7.1 Costs ......................................................................................................... 65

3.7.1.1 Expenses Due to a Special Procedure or Technology Used in

Accordance with the Provisions of Regulation 1206/2001 ...................... 69

3.7.2 Language and Translation ........................................................................ 69

3.8

Unlawful Evidence ................................................................................... 70

3.9

Relationship Between Regulation No 1206/2001 and Bilateral or

Unilateral Agreements ............................................................................. 78





Part II – Synoptical Presentation .............................................................. 83

1

Synoptic Tables ........................................................................................ 83

1.1

Ordinary/Common Civil Procedure Timeline .......................................... 83





References ................................................................................................ 91





Case-based part ........................................................................................ 95





Evidence in Civil Law – Slovenia

T. Ivanc





Part I


1


Introduction


Slovenian Civil procedure Act (Zakon o pravdnem postopku) relates to Austrian Code

of Civil Procedure (Zivilprozessordnung). The stated results from the fact that Slovenia

was once a part of Austria, more precisely Austro-Hungarian Empire, which lasted until

the end of World War I. When Slovenia became a part of Yugoslavia the new Civil

Procedure Act, which was adopted in 1929, was nearly a complete copy of Austrian

ZPO and was in force until 1999, when Slovenia got the first Slovenian Civil Procedure

Act. From 1999 the CPA was amended four times, with the last amendment (CPA-D)

from 2008. The last amendment brought many reforms to Slovenian civil procedure

which relate also to evidence taking. For example, Article 214 CPA explicitly requires

that the parties when disputing the facts give explicit explanation. The facts which a

party has not denied or has denied without stating any reason are deemed to have been

admitted unless the denial’s purpose arises from the other statements made by the party.

The party is able to avoid the presumption of admission by stating that they are not

familiar with the facts, but this statement would suffice only if the facts do not relate to

the actions of that party or to that party’s opinion.



A welcome novelty is also the possibility for the court to order the parties to file written

summaries of the most significant statements and information in the attached documents

and to indicate the pages on which the statements or information are located in the filed

documents, if the parties file extensive documentary evidence. If the party fails to

follow the court's instructions, the evidence shall be deemed to have been withdrawn.



Another novelty relates to examination of witnesses and possibility of the parties to

submit written witness statements. The parties may, by order or consent of the court,

submit written and signed statements by the witnesses concerning the facts to which the

witnesses would testify at the hearing.



Present book examines the evidence law as it is regulated in Slovenian civil procedure

law. The work provides analyses of fundamental principles in Slovenian civil procedure

and concentrates on general principles of evidence taking. In the system of free

assessment the judge is the one to evaluate the evidence without being bound by any

formal rules on probative value of certain evidence. The free assessment of evidence is

the right and duty of the court to assess each piece of evidence separately and

collectively. The provisions that enable court establishing the truth are provisions on the

basic principles: the principle of free evaluation of evidence, the audiatur et altera pars

2





Part I


principle, principle of public hearing, orality and immediacy, the duty to tell the truth,

the inquisitorial principle. Furthermore, all the provisions on the evidential system help

courts find the truth and witnesses’ duty to testify, experts’ duty to give their findings

and opinions, and the party’s duty to submit documents corroborating their statements.



Chapters relating to evidence law will give an overview of evidence in general, focusing

on standards of proof to consider a fact as established, mans of proof, duty of parties

and third persons to deliver evidence. We discuss burden of proof which relates to

procedural duty or burden and to the rules which determine which party bears the

consequences of unproved statements on the existence and nonexistence of ultimate

facts. Our CPA regulates means of proof but the list is not exhaustive, so the principle

of numerus clausus does not apply. The book concentrates on the analyses of the

following means of proof: documents, witness testimony, expert witness testimony, and

party testimony. The rules on legal costs caused by taking evidence and rules on

language and translation are analyzed. Since the Slovenian CPA is silent on the question

if illegally obtained, the book deals with this topic examining scholarly literature and

case law in Slovenia.



Added value of the book is also synoptic presentation of ordinary civil procedure, which

shows the timeline of the ordinary form of civil procedure in Slovenian legal system. In

the last part of the book we provide case based analyses of scenarios that consider

different topics, relating also to cross border taking of evidence with connection to

Regulation No 1206/2001 on taking of evidence.



2

Fundamental Principles of Civil Procedure



2.1

The Principle of Free Disposition of the Parties and the Officiality Principle



The principle of free disposition of the parties derives from the principle of the

autonomy of the parties based in civil substantive law, and thus represents a functional

connection between civil procedure law and substantive law. This connection is

manifested in the protective nature of the procedure in relation to substantive law.



In its purest form, the principle of free disposition means that proceedings can be

initiated only by the party. The parties are domini litis of the procedure; they have the

right to dispose of their claims and the court is bound by the evidence offered by the

parties and the claim(s) asserted by the parties.3



On the other hand, the officiality principle is a contrary precept to the principle of free

disposition of the parties. Proceedings may be started ex officio and the procedure runs

irrespective of the will of the parties.4 According to the officiality principle, the court is

not limited to evidence presented by the parties and is authorised to examine all the

circumstances which it deems important to the case. The court may thus decide more or

something else than claimed. Ne eat iudex ultra et extra petita partium.



3 L. Ude, Civilno procesno pravo, Uradni list RS, Ljubljana, 2002, p. 108.

4 J. Juhart, Civilno procesno pravo, Univerzitetna založba Ljubljana, p. 38.





Part I


3




The Slovenian Civil Procedure Act5 recognises the free disposition of evidence as a

general procedural principle. The extent of this principle is delineated in Articles 2 and

3 of the CPA. In civil procedure, the court may not decide beyond the extent of the

claim(s) as defined by the parties to the litigation (par. 1 Art. 2 CPA). There are two

rules which stem from this provision. Namely, the court may not commence the

procedure without an action and the court is bound by the claim. The action must seek a

specified relief or remedy claimed in respect of the cause of action, the collateral claims,

the statement of facts establishing the cause of action, the statement of evidence proving

these facts, and other details necessary in each pleading (Art. 180 CPA).6 As the

principle of free disposition means that the parties have the power to start the

proceedings, the principle further influences the procedural course. The parties are free

to resolve their claims during the procedure (par. 1 Art. 3 CPA). The procedural actions

(material dispositions) by which parties influence the procedure are particularly

dismissal of the claim, acknowledgment of the claim and conclusion of the court

settlement (par. 2 Art. 3 CPA). The court will deliver judgment on such an action by

abandoning the claim (Art. 317 CPA) or judgment by acknowledgement (Art. 316 CPA)

or may accept that a court settlement be made on the record. These actions have res

iudicata ( ne bis in idem) effect and the court may not prevent parties from such a

disposition, unless it determines that the parties wish to perform a dispositive act which

is not in conformity with (1) compulsory rules or (2) with moral principles. (par. 3 Art.

3 CPA.)



Moreover, the party may with procedural dispositions withdraw the action (Art. 188

CPA)7 or legal remedy (par. 2 Art. 334 CPA)8 or the parties may agree to stay the

proceeding (Art. 209 CPA)9. Such actions have no res iudicata effect.



The court may not refuse to hear any dispute that is within its jurisdiction (par. 2 Art. 2

CPA – prohibition of non liquet rule). If the court is competent to adjudicate the case,



5 Official Gazette of the RS, No. 73/07 – officially consolidated text, 45/08 – ZArbit, 45/08,

111/08 – decision of Constitutional court, 57/09 – decision of Constitutional court, 12/10 –

decision of Constitutional court, 50/10 – decision of Constitutional court, 107/10 – decision of

Constitutional court, 75/12 – decision of Constitutional court, 40/13 – decision of Constitutional

court, 92/13 – decision of Constitutional court and 10/14 – decision of Constitutional court).

6 For the court to adjudicate something to the claimant, the claim, which is incorporated in the

action, must be properly formulated. It is not enough for the claimant to describe a disputed legal

relationship and leave to the court the decision as to which legal consequence is appropriate. With

monetary claim it is necessary to specify the exact amount of money. For more see, A. Galič in L.

Ude, N. Betetto, A. Galič et al, Pravdni postopek – zakon s komentarjem, vol. 2, 2006, p. 123 and

the following.

7 At any time during the proceedings, the plaintiff may withdraw the action without the consent of

the defendant, except if by the time of withdrawal the defendant by submitting a statement of

defense engages in trying of the main subject of the dispute.

8 The party may withdraw the appeal until the court of second instance delivers the decision.

9 The proceedings shall be stayed provided both parties have agreed thereupon prior to

completion of the main hearing. The proceedings shall be stayed from the day on which the court

has been informed of it by the parties.

4





Part I


the court must then decide the case. This means that if the court cannot ascertain legally

relevant facts, the rules on burden of proof apply (Art. 215 CPA).



The free disposition principle is limited by the officiality principle in exceptional

circumstances such as when the parties wish to dispose of the claim, but they do not

have the right to do so under the substantive law. Disposition is not allowed if such is

contrary to compulsory and moral rules. Another exception can be found in matrimonial

and paternity matters.



If the court finds the claimant’s claim to be grounded in substantive law, the court may

adjudicate only what the party has claimed in the claim. The court may not adjudicate

more or something else.10 The court, however, may adjudicate something less.11 Only

on a motion by a party may the court of second instance examine whether the limits of

the claim has been exceeded by the judgment (par. 3 Art. 350 CPA). Such a violation

constitutes an absolute violation of procedural law.12 Under the CPA, the rule of

reformation in peus is prohibited.13 The appellate court may not modify the judgment to

the loss of the appellant if only appellant has lodged the appeal (Art. 359 CPA).



In exceptional cases, the court may adjudicate more or something else than claimed by a

plaintiff in a family dispute. In such disputes, the court may decide without a proper

claim about maintaining the child when the court grants the request for declaration of

paternity (Art. 422 CPA). When deciding about a divorce case, the court may decide

beyond or without the claim for the protection, upbringing and maintenance of the child

(Art. 421 CPA).



Parties are domini litis of the procedure and must plead the facts and offer evidence.

(par. 1 Art. 7 CPA.) The court may not include in its decision any fact not pleaded by

any party or take any evidence grounded in the parties’ proposal (except when the

parties dispose with their claims, which they are prohibited from doing – par. 2 Art. 7

CPA). Decision of the court which evidence to perform is limited with stated facts and

importance of each evidence. Court decision regarding the performance of evidence

(which evidence will be taken) is bound by that evidence that is proposed by the parties.

The court may refuse to take specific evidence but this decision must be fully explained

so there is no violation of the party’s right to be heard. The court is bound by the party’s

submission regarding the means of evidence. There are, however, some exceptions to



10 The example of adjudicating over the claim would be: the court awards the interest which was

not claimed by the party; the court delivers a condemnatory judgment instead of declaratory

judgment; gives judgment against more defendants for jointly payments instead of according to

the shares.

11 For example, the court may award interest at a lower rate than the rate that was claimed. For

more see; A. Galič in L. Ude, N. Betetto, A. Galič et al, Pravdni postopek – zakon s komentarjem,

vol. 1, Uradni list, 2005, p. 33.

12 If the claim has been exceeded in the procedure by the appellate court, such violation can be

challenged with the revision as an extraordinary remedy (par. 2 Art. 3 CPA).

13 If the party has claimed 1,000.00 EUR, but the court awards 800.00 EUR and only the opposite

party has appealed, the court of second instance may not enter judgment for more than 800.00

EUR, even though it is manifest that the plaintiff deserves 1,000.00 EUR.





Part I


5




this rule: Some facts may be proven only with (a) document(s) as evidence. This

exception applies to proving that the agreement on territorial jurisdiction exists. The

plaintiff must file (a) written document(s) proving that both parties have agreed on

different territorial jurisdiction or the defendant needs to claim and attach such

documentary evidence when filing an answer to the action. (par. 4. Art. 69 CPA.)14



2.1.1 Limitations to Introduce New Facts and Evidence



Preclusions to the introduction of new facts and evidence are foreseen in Article 286 of

the CPA. The rule introduces sanctions for delay or inactivity of the parties in the

proceedings. Rules on preclusion mean that the parties are obligated to state certain

facts and offer evidence until a certain time or point in the proceedings or the sanction

of preclusion will be imposed. According to Galič,15 the rules of preclusion do not

introduce alternative pleading ( eventualmaxime)16 in the Slovenian system. Alternative

pleading “imposes on the parties, under the threat of no exception for preclusion, the

duty to state all facts and offer all evidence already at a certain stage of the proceedings,

even if the eventualmaxime could be considered only optionally.”17 According to the

CPA parties must state all facts on which their motions are based, adduce evidence

needed to determine the truth of their statements and produce declarations about the

statements and evidence adduced by the opposing party until and including the first

session of the hearing. (par. 1 Art. 286 CPA.) At later hearing sessions, the parties are

allowed to present new facts and new evidence only if at the first session of the hearing

they were prevented from presenting them by reasons beyond their control.18 (par. 4 Art.

286 CPA). Because the CPA enables parties to plead facts and offer evidence in later

hearings as well, the regulation of preclusion in the Slovenian system is different from

eventualmaxime19. The possibility to present evidence and state facts at a later hearing

enables parties to plead facts which emerged after the first session and also in cases

where the party at the first session did not know that certain facts and evidence existed

or was convinced that certain facts and evidence were not important at the first session

of the main hearing.20 Amendment D of the CPA21 introduced new rules for procedural



14 Agreement on territorial jurisdiction is not allowed in cases when the exclusive jurisdiction is

prescribed.

15 A. Galič in L. Ude, N. Betetto, A. Galič, op. cit., vol. 2, p. 599.

16 Different opinion can be found with Ude (2002) and some court decisions (decision of Higher

court Ljubljana, No. VSL sklep I Cp 1224/2004, 6.11.2005; decision of Supreme court RS, No.

Sodba II Ips 371/2004, 24.3.2005)

17 A. Galič in L. Ude, N. Betetto, A. Galič, op. cit., vol. 2, p. 599.

18 Reason beyond the parties control has been evaluated in Slovenian case law: The assessment of

the reasons that are beyond parties control in the system of preclusions must not be too strict,

since the purpose of this institute is to accelerate the proceedings, but on the other hand this

institute intervenes in the right of the party to give statements and is contrary to the principle of

audi alteram partem. The court accepted the explanation of the party of the reasons for late

submissions of evidence, because the party is legal entity with the place of business in Germany

and so the circumstances for obtaining evidence are time-consuming (decision Higher court RS,

No. VSL sodba I Cpg 1292/2011, 06.03.2012).

19 Ibidem.

20 Idem, p. 599-600.

6





Part I


sanctions. The court may set time limits for parties to file explanations, answers to

certain questions, offer new evidence or documents to which they have been referring,

give statements on expert opinions, or file written witness statements before or during

the main hearing. (par. 1 Art. 286.a CPA.)



If the party fails to comply with the time limits set by the court, new submissions filed

after that time limits would be admissible only if the party states such facts and

produces such evidence at the first season of main hearing, provided the party was

without fault and unable to state them earlier or the court estimates that their admission

will not prolong resolution of the dispute. (par. 2 Art. 286 CPA.)



Provisions set in paragraph 2 Article 286 and in 286.a that enable written stages of the

procedure in certain way extend substantive procedural guidance (Art. 285 CPA).

However, this provisions are only possibilities for that the court may use.22



Amendment D has also introduced a new rule, under which the parties are obliged to

invoke any violation of the civil procedure rules before the court without undue delay.

Any violation to which the party objects at a later time will be considered only if the

party was without fault and unable to state them previously. (par. 1 Art. 286.b CPA.)

This provision introduces the presumption that the party has waived the right to object a

procedural error if the party did not comply with given time limits.23 The exception to

this rule applies only to those violations of civil procedure rules which the second

instance court examines sua sponte (par. 2 Art. 286.b CPA.)



The provision on preclusion to invoke violation of the civil procedure rules was

introduced in order to speed up the procedure and to ensure effective judicial protection

within a reasonable time. This is constitutionally admissible aim to restrict the parties'

right to be heard. 24



In some special proceedings, the rules of preclusion are regulated differently. In family

disputes, the CPA does not impose any limit on new facts and evidence. (Art. 414

CPA.) In small claims procedures, however, parties may plead new facts and offer new

evidence only in the action and answer to the action (Art. 451 CPA) and in one

preparatory application per party where the parties can answer to the statement included

in the application of the opposing party. (Art. 452 CPA.)





21 Official Gazette of the RS, No. 45/2008.

22 A. Galič, Prve praktične izkušnje z novelo ZPP-D v postopku na pravi stopnji, Pravni letopis,

Inštitut za primerjalno pravo pri Pravni fakulteti v Ljubljani, 2009, p. 55.

23 There is also an important question if the rejection of the court to perform a specific evidence

counts as a violation of procedural rules and it is necessary for the party to objects to this

violation as soon as possible according to the Article 286a of the CPA. See M. Sever, Prekluzije

glede uveljavljanja procesnih kršitev po noveli ZPP-D v sodni praksi, Pravosodni bilten, vol. 1

(2011), p. 185-204.

24 M. Sever, Prekluzije glede uveljavljanja procesnih kršitev po noveli ZPP-D v sodni praksi

Pravosodni bilten, vol. 1 (2011), p. 186.





Part I


7




In the appeal, new facts and evidence may be presented only if the appellant establishes

presumptively that for reasons beyond their control, the party has been unable to present

them by the first hearing session or until the conclusion of the main hearing, or if

conditions stated in Article 286 of the present Act are fulfilled. (Art. 337 CPA.)



In a case where the first instance judgement is annulled and returned to first instance

court for new trial, the parties may, at the opening session of the new main hearing,

adduce new facts and offer new evidence if they could not do so the proceedings then

conducted for reasons beyond their control. (par. 2 Art. 362 CPA)



Slovenian constitutional court ruled that the system of the preclusions introduced by the

CPA is not in conflict with the Constitution of RS and clearly explained the importance

of the principle that it is the responsibility of the parties to contribute to the

concentration and speeding up the procedure as well as to the substantive quality of

justice.25



2.2

The Adversarial and Inquisitorial Principle



The adversarial and inquisitorial principles determine who collects and files procedural

evidentiary material. In theory, this task is given to the parties, the court or all of them

together. In its purest form, the adversarial principle means that only the parties may

collect facts and evidentiary material and thus the court may consider only pleaded facts

and offered evidence. This principle is also called the passivity of the court principle

because the parties are the masters of the litigation and they control the procedural

material.



In opposition to the adversarial principle is the inquisitorial principle or principle of

active judicial role. The parties are the initiators of the proceedings, but the court

collects all the factual and evidentiary material. The court is not bound by the parties’

propositions and may base its decision on the facts that were not pleaded by any of the

parties to the litigation.



According to the Slovenian CPA, the adversarial principle is the basic procedural

principle. However, this principle is not rigidly followed. The principle is included in

Article 7 of the CPA, which states the parties must state all facts on which their claims

are based and must offer evidence proving these facts.



The facts are left to be pleaded by the parties, which means that the adversarial principle

is enforced. If none of the parties states certain facts, the court is obliged to find that

such facts do not exist. The duty of the parties to state all facts and adduce all evidence

on which their claims are based is also obvious from Article 212 of the CPA. The

question of which facts must be averred is closely connected to the rules on factual and

evidentiary burden.26 The general rule is that the plaintiff must present the facts and



25 A. Galič, O namenu prekluzij v pravdnem postopku, Odvetnik, 2013, vol. 60.

26 A. Galič and D. Wedam Lukić in L. Ude, N. Betetto, A. Galič et al., op. cit., vol. 1, p. 66.

8





Part I


proffer the evidence supporting the claim and the defendant must present facts and

evidence supporting the defendant’s objections.27



The adversarial principle means that the court will consider only facts and evidence

presented by the parties regardless of which party has introduced the fact or evidence

and regardless of the benefit or detriment such fact or evidence may occasion.28



The adversarial principle is unlimited in terms of evidence as well. If the party has

admitted certain facts, such facts need not be proven, except on a court order which may

be issued when a party is believed to have admitted the facts with to the purpose of

performing a dispositive act which the party is not entitled to perform. (par. 1 Art. 214

CPA.) The facts which a party has not denied or has denied without stating any reason

are deemed to have been admitted unless the denial’s purpose arises from the other

statements made by the party. The party is able to avoid the presumption of admission

by stating that they are not familiar with the facts, but this statement would suffice only

if the facts do not relate to the actions of that party or to that party’s opinion. (par. 2 Art.

214 CPA.)



Facts which are presumed to exist under statute need not be proven. However, the

parties may challenge the existence of such facts, unless otherwise prescribed by the

statute. (par. 5 Art. 214 CPA.) Further, facts which are generally known may not require

proof. (par. 6. Art. 214 CPA.)



It is not necessary for the parties to state which provision of the substantive law should

be applied by the court under the facts adduced in the claim. The court must ex officio

review all the legal bases ( iura novit curia) on which the claim could grounded.29

However, the parties may include their legal views in their claims and at the main

hearing to ensure greater judicial efficiency and to avoid surprise judgments.



According to the Slovenian CPA, the court may not take evidence ex officio if one of

the parties has not proffered the evidence.30 The right of the party to proffer the

evidence corresponds to the court’s duty to assess which evidence is important for the

decision and that such evidence is proffered. This does not mean, however, that the

court must receive all proffered evidence, but rather that if evidence is rejected, the

decision must be explained.31 Further, if the party does not explain which fact is proven



27 Ibidem.

28 Ibid, p. 67.

29 Ibid, p. 71.

30 This regulation is different from the CPA from 1976, according to which the courts were able

to proffer specific evidence that the court deemed necessary to be proffered ex officio. Ibid, p. 67.

31 The reasons for which the court rejects to receive evidence are evident from court evidentiary

decision. For more see, J. Bolta, Zavrnitev dokaznih predlogov v sodni praksi, Pravnik, vol. 9-

10/2011, p. 545 and the following.





Part I


9




by particular evidence and why this evidence is important, the court is not obligated to

consider this evidence.32



The exception to the adversarial principle is foreseen for cases based in par. 2 Art. 7

CPA. The court may determine the facts which were not argued by the parties and

consider the evidence which parties have not proffered. This rule results from the

exception to the principle of free disposition. The parties may not resolve their claims if

their actions are contrary to compulsory or moral rules. If the court suspects that the

parties are attempting to bypass a compulsory rule, the court may consider facts that

were not alleged by the parties and admit evidence which was not proffered by the

parties.33



The inquisitorial principle applies also for procedural preconditions which the court

examines ex officio. The exceptions to the adversarial principle apply also in family

disputes and disputes arising from relationships between parents and children. In such

disputes, the court is authorised to perform all necessary actions ex officio for to protect

rights and interests of children and other people who are not capable of protecting their

rights and interests by themselves. (par. 1 Art. 408 CPA.) In disputes about the care,

education and maintenance of children, the court is not bound by the claims raised by

the parties; it may also decide on care, education and maintenance without a specific

claim raised when the law so determines. (par. 2 Art. 408 CPA.)



For the purposes of protecting children and other persons, the court may also find facts

which the parties have not stated and collect additional data needed for its decision.

(par. 2 Art. 408 CPA.)



Even though we have stated that in a pure adversarial system the court plays a passive

role, it nonetheless has an important duty in terms of substantive procedural guidance.

(Art. 285 CPA.) The substantive procedural guidance is established for efficiently

resolving disputes.34 Consistently exercised, the adversarial principle on the one hand

and rules of preclusion on the other demand greater engagement of the court in the

context of substantive procedural guidance.35



The judge may ask questions and shall in another suitable manner ensure that all

ultimate facts are stated during the hearing, that incomplete statements on important

facts be supplemented, that evidence relating to the parties’ statements be adduced or

supplemented, and that all necessary explanations be given in order to establish the facts

and legal relation in dispute. Substantive procedural guidance is a preparatory procedure



32 D. Wedam Lukić, Ustavnopravni vidiki izvajanja dokazov v pravdnem postopku, Podjetje in

delo, vol. 7/2012, p. 1384.

33 A. Galič, D. Wedam Lukić, in L. Ude, N. Betetto, A. Galič, V. Rijavec et al., op. cit, vol. 1, p.

80.

34 L. Ude, Civilno procesno pravo, Uradni list, Ljubljana, 2002, p. 60.

35 J. Zobec in L. Ude, N. Betetto, A. Galič et al., op. cit., vol. 2, p. 349.

10





Part I


of the court and relates to the internal or substantive aspect of the proceedings,

especially in gathering evidentiary material.36



Formal guidance relates to commencing, conducting, and concluding the proceeding,

especially during the course of the main hearing.37 Amendment D of the CPA

introduced new authority for the judge in actively managing the case already at the

preparatory stage of litigation.



The court may before or during the main hearing order the parties in writing or orally at

the hearing to answer particular questions about the circumstances which are significant

for the decision, to complete or explain in greater detail their previous statements, to

produce extra evidence, to file documents to which they have referred, to state their

view about expert opinion or other evidence taken, to file written statements by

witnesses, to state their view about statements of the opposing party or to file judicial

decisions about the case-law to which they have referred. After receiving a statement of

defense or preparatory submission or after conducting a hearing, the court may set a

period within which the parties may file the next preparatory submission. (par. 2 and 3

Art. 286.a CPA.) This provision provides possibility for the court that, in accordance

with the principles of an open trial, parties are encouraged to list of all the

circumstances that are relevant for the decision, to supplement or give additional

explanation for previous statements, to propose additional evidence, present documents,

already in the preparatory stage of the main hearing.38



In the preparatory stage, substantive procedural guidance is important to the settlement

hearing. Material guidance is not allowed in proceedings with appeals and extraordinary

legal remedies. At its core, material guidance relates to factual statements, to

substantive proposals, to the procedure for taking evidence and to legal questions. The

aim of this guidance as it relates to facts is to ensure that all important facts are averred

and that all incomplete statements are completed.39 The judge may attempt to upgrade

the parties’ statements by additional questions, but the judge may not intervene in such

a manner that the parties would completely change their statements. Judicial

independence remains paramount.



In the substantive pleadings, the court may encourage the party to change the

substantive pleadings, which need to remain in the frame of the stated claim. However,

the court may not help parties with forming their claims.40 Material guidance is given



36 N. Betetto in L. Ude, N. Betetto, A. Galič et al., op. cit., vol. 2, p. 583.

37 Ibidem.

38 V. Bergant-Rakočević, Materialno procesno vodstvo v pisnih fazah postopka in razmerje do

prekluzije, Podjetje in delo, 2008, vol. 6-7, p. 1597-1606.

39 Ibid, p. 586.

40 The formation of the proper claim of the plaintiff is primarily the task of the party. The court

may for example encourage the parties to explain the relationship between the main and

secondary claims. Ibid, p. 588.





Part I


11




also in gathering and taking evidence. The court may encourage parties to present

relevant evidence.41



The principal means of material guidance is taking evidence takes the form of

evidentiary orders. The court orders the taking of evidence for proving the disputed

facts and deciding the means of evidence by which they are to be proved. (par. 1 Art.

287 CPA.) If the court determines that the evidence which a party has adduced is

without relevance to resolution of the dispute, it enters an order rejecting the evidence

and states the grounds for rejection. (par. 2 Art. 287 CPA.)



On the legal qualifications and the principle of iura novit curia, the question arises

whether the court is bound to reveal its legal views to the parties. According to the iura

novit curia rule, the court must state all the substantive grounds which can be applied in

connection to the stated facts. If in this evaluation process it turns out the factual

statements are incomplete, the court must warn the party about the possibility of

different legal qualification and further encourage the party to supplement the facts.42



2.3

Audiatur et altera pars Principle



Based on this principle, the court must allow parties to give their statements about the

claims and declarations of the opposite party in litigation. The court’s application of the

principle assures that all parties are heard. However, this does not mean that the court

may impose coercive means to require a party or parties to give statements. The duty

that falls on the court in civil proceedings is to enable the parties to actively take part

and to be able to declare their position on the opposing party’s statements. Parties have

the right to be heard, but this right should not be equated with compulsion. Only in

exceptional cases provided by law may the court decide on a claim which the opposing

party did not have the opportunity to challenge.



CPA regulates this principle in Article 5, which states that each party to the litigation is

granted the opportunity to be heard on the opposing party's claims and assertions. The

claims on which the opposing party is not to be heard may only be decided on if the

CPA so stipulates. (par. 2 Art. 5 CPA.)



The procedural mechanisms that guarantee full exercise of the principle are service of

applications of parties, invitations, judgments and decisions of the court, restitution in

integrum, the main hearing, and participation in the evidence-taking procedure.





41 When examining the witness, the court may encourage the parties to propose the examination

of another witness if from the first examination it becomes evident that the second witness knows

more than the first. Ibid, p. 588.

42 Although the court must reveal its legal views on the case, the court may not act as a legal

representative of the party. Important circumstances that obligate the court to reveal its legal

views include instances when the court intends to depart from the case-law or when in the course

of the procedure, it changes its legal views. N. Betetto in L. Ude, N. Betetto, A. Galič et al., op.

cit., vol. 2, p. 592.

12





Part I


This principle enables the court to familiarise itself with facts that are important for the

final decision and is consequently implemented in many rules in the CPA. Applications

(e.g. action, answer to the action, preparatory application) which are to be served on the

opposing party must be submitted in a sufficient number of copies for the court and for

the opposing party, and in such form that enables the court to serve the pleading on the

opposing party. The same applies to attached documents. (Art. 106 CPA.) The court

must summon the parties and other persons whose presence it considers necessary to the

hearing in a timely manner. The pleading upon which the hearing is fixed must

accompany the invitation to the main hearing, stating the time and place of the hearing.

If the pleading is provided separately from the invitation, the invitation must identify

the parties, the matter of dispute and the procedure to be applied at the main hearing.

(par. 2 Art. 113 CPA.) Furthermore, the court is obliged to advise the parties on the

consequences of nonappearance in the main hearing,43 whose first session starts with

presentation of the action by the plaintiff and is followed by the replication of the

defendant. In the further course of the hearing, the court hears the parties’ motions and

the statements of facts by which they support their own motions or contest those made

by the opposing party, considers the admission of evidence adduced by the parties,

reviews the admitted evidence, and considers the legal impact of such evidence. The

parties may state their legal opinions about the subject matter of dispute. (Art. 284

CPA.)



The judge convenes the main hearing and announces the scope of the hearing. The

judge then determines if all summoned persons have appeared. In the case of

nonappearance, theyshall verify whether they have been duly summoned and whether

they have justified their nonappearance. (Art. 281 CPA.) If a party or statutory

representative is not in position to make a clear and definite statement about the case in

dispute and if the party is not represented by an attorney, the court must order the party

to retain an attorney. (Art. 284 CPA.)



2.3.1 Right to be Heard



Under Slovenian law, there is no pre-action proceeding and no formal prerequisites

which a plaintiff must fulfil before initiating an action. According to amendment D of

CPA, the principle of concentration of the main hearing is even more emphasised in

such a way that the parties are responsible for speeding up the litigation and for

protecting their rights. Provisions included in the Slovenian CPA enable collection of

the procedural material as soon as possible, and the litigation could thus be terminated

in one hearing.44 The courts are authorised to move substantive material guidance to the

written stage of the procedure which influences the importance of the main hearing and

the principle of orality.45





43 If neither of the parties appears at the settlement hearing or at the first session of the main

hearing if the settlement hearing has not been conducted, the action shall be deemed to have been

withdrawn by the plaintiff. (Art. 282 CPA.)

44 In practice, the litigation consists of several hearings.

45 Decision of the Constitutional court of RS, No. U-I-164/09-13, 4. 2. 2010.





Part I


13




A special pre-trial hearing which may follow the receipt of the answer to the action is

the settlement conference, which is not compulsory. At the settlement conference, the

court openly discusses with the parties the factual and legal aspects of the dispute to

define the disputed and the resolved issues, explores the possibility of court settlement

and endeavours to reach such conclusion. (par. 2 Art. 305.a CPA.)



The public is not permitted to attend settlement hearings. The court may decide not to

call a settlement hearing if the parties already unsuccessfully conducted one of the out-

of-court alternatives to dispute resolution (e.g. mediation), or if the court assesses that

there is no possibility of achieving a court settlement, or if the court determines that the

settlement does not provide an appropriate method to resolve the dispute. (par. 3 Art.

305.a CPA.)46 The parties may at a later stage of the proceeding conclude settlement of

the dispute.



The defendant is obligated47 to file a defence plea within thirty days from the service of

the plaintiff’s pleadings. In the proceedings’ preparatory stage, the court may address

procedural questions, but not substantive ones.48 The judge may, according to Articles

286 and 286.a of the CPA, determine the time within which the parties may file written

comments or explanations of their factual assertions and offer additional evidence.

Before the main hearing, the parties have the right to file preparatory submissions even

without court order to answer particular questions about the circumstances which are

significant for the decision, to complete or explain in greater detail, their previous

statements, produce additional evidence, file documents that they have referred to, state

their positions on the expert opinion or other evidence taken, submit written statements

by witnesses, reply to the pleadings of the opposing party, give their legal views, or file

judicial decisions about referenced case-law. (par. 4. Art. 286.a CPA.)



The right to be heard applies also to the phase of evidence taking, where the parties’

equal treatment must be ensured. The parties must be permitted to offer evidence and to

respond to the statements of the opposite party, to be present at evidence taking and to

put questions to witnesses and experts and to state their views on the results of the



46 If the parties agree to use some of ADR procedure, the court may stay the proceedings for three

months at the most. Under the Slovenian CPA the out of court ADR are to a limited extend

acknowledged. A. Galič, Slovenia: Civil procedure, Wolters Kluwer, 2008, p. 104.

47 The sanction for passivity of the defendant in terms of filling the timely defense plea is delivery

of the default judgment (Art. 318 CPA).

48 The judge has the power to decide: on entry of a predecessor in the litigation; on intervention;

on securing of evidence; on amendment of action; on discontinuation of the proceedings due to

withdrawal of action; on suspension and stay of the proceedings; on temporary injunctions; on

joinder and severance of claims; on determination and prolongation of time periods specified by

the court; on fixing and adjournment of hearings; on restitution in integrum; on exemption of a

party from payment of the costs fees, postponement of the payment of the court fees, or payment

of the court fees by instalments; on security for costs of proceedings; on advancement for costs of

specific acts of procedure; on appointment of an expert; on appointment of a representative ad

litem; on service of court writings; on measures for correction of pleadings; on validity of the

authorization of attorney; on all other issues referring to the direction of the proceedings (Art. 270

CPA).

14





Part I


evidentiary procedure. The parties may file preparatory submissions before the main

hearing if they are served on the opposing party prior to the hearing.



When parties offer evidence in the form of the witness testimony, they must identify the

witness(es) and the facts about which the witness(es) will be examined. A witness is

first examined by the court. If a party believes that the question asked by the judge is

not legally appropriate, the party may object to the questions but the judge is not

required to consider this objection.49 When the judge is finished questioning the witness,

the parties may ask questions with the permission of the judge. The same applies to the

parties’ right to ask questions of experts and the opposing party. (par.2 Art. 289 CPA.)

Parties are not allowed to ask leading (suggestive) questions, which indicate how the

questioned person should answer and questions that are based on the presumption that a

certain fact is already proven.50 Questions not related to the matter at issue are also not

allowed. (par. 3 Art. 289 CPA.) Parties may also submit written witness statements. The

parties may, by order or consent of the court, submit written and signed statements by

the witnesses concerning the facts to which the witnesses would testify at the hearing. If

the court orders a party to submit the written statement of a witness for whom the party

has made a motion to be heard and the party fails to comply with such order, the oral

testimony of the witness shall only be taken if it is established that the party has tried to

obtain a written statement from the witness, but was unable to do so. The parties may

also agree in the course of the proceedings to exchange written witness statements. The

court has the right to order the persons called as witnesses directly to make written

statements or to answer certain questions, particularly in cases where the court assesses,

on the basis of the contents of the questions or on the ground of the identity of the

witness called, that such a statement will suffice. However, the witness shall be heard if

either of the party requests it. (See Art. 236.a CPA.).



Examining the parties as a mean of evidence was in the past regulated as subsidiary

evidence according to the CPA from 1976. The current CPA loosened this limitation

and the evidence from hearing the parties as witnesses is regarded as equal to evidence

in other forms. (Art. 257 CPA.). The principal rule in relation to the examination of the

parties is that both parties must be examined. Even if only one party offers themselves

as a witness, the court will examine the other party as well. This rule stems from the

provision that the court may decide that only one party will be questioned if the other

party is without knowledge on the disputed facts or that examination of a party is not

possible. (par. 1 Art. 258 CPA.) The court may examine only one party also in the event

that the other one refuses to testify or does not appear at the hearing. (par. 2 Art. 258

CPA.) The theory51 behind the rule in hearing both parties as witnesses is a consequence

of justified doubt regarding the reliability of the parties as a means of evidence and the

realization that the most effective means against partiality of one party is partiality of

the other.52



49 J. Zobec in L. Ude, N. Betetto, A. Galič et al. op. cit., vol. 2, p. 463.

50 N. Betetto in L. Ude, N. Betetto, A. Galič et al. op. cit., vol. 2, p. 617.

51 J. Zobec and L. Ude, N. Betetto, A. Galič et al. op. cit., vol. 2, p. 513.

52 Idem, p. 514.





Part I


15




The parties may offer explained and substantiated facts to the contested facts or the

presumption that such undisputed facts have been admitted will hold. (par. 2 Art. 214

CPA.) The facts which a party has not denied or has denied without stating any reason

are deemed to have been admitted unless the purpose of the denial arises from other

statements made by the party.



Following the example of English law53, the court may order the parties to file written

summaries of the most significant statements and information in the attached documents

and to indicate the pages on which the statements or information are located in the filed

documents, if the parties file extensive documentary evidence. If the party fails to

follow the court's instructions, the evidence shall be deemed to have been withdrawn.

(par. 4 and 5 Art. 226 CPA.)



The court is authorised to exercise substantive material guidance in the preparatory

stage to the main hearing with the power to fix the time limits for parties to conclude

procedural actions and to shift the deadline to state facts and offer evidence to the time

before the main hearing. (First three paragraphs of Art. 286.a CPA.)



The defendant needs to answer the plaintiff’s pleadings to avoid the delivery of the

default judgement. (Art. 318 CPA.)



The law determines the exceptions to the principle. If the request for restitutio in

integrum is based on facts that are commonly known or the motion has been brought for

clearly unjustified reasons, the court may decide without the hearing of the opposing

party and without the main hearing (par. 2 Art. 120 CPA).



In the procedure for securing the evidence, the court may, in emergency cases, decide

on the motion for securing the evidence and admit the evidence, even if the opponent

has not yet been served with the decree granting the motion to secure evidence. (par. 5.

Art. 267 CPA.)



Through a special procedure, the payment order may be issued on the basis of the

pleadings of the plaintiff alone without the opportunity for the defendant to file an

answer or otherwise respond. The payment order is issued without the main hearing and

is served on the defendant together with the pleadings. (Art. 433 CPA.) After the service

of the payment order, the defendant has the right to file a statement of opposition. By

timely filing of the opposing pleadings, the case returns to ordinary civil procedure. At

the first session of the main hearing, the parties may state new facts and offer new

evidence.



If the right to be heard is denied, such a violation is regarded as an absolute violation of

the procedure (error in the procedural law) (point 8, par. 2 Art. 339 CPA),54 but the



53 N. Betetto, Predvidene novosti v ZPP glede dokaznega postopka, Podjetje in delo, vol. 6-

7/2007, p. 1071.

54 Violation as such means any unlawful proceeding, particularly in respect of the service of

process.

16





Part I


appellate court does not examine this violation ex officio (Art. 350 CPA). This violation

also constitutes a ground for revision (point 1, par. 1 Art. 370 CPA) and reopening of

the proceedings. (Point 2 Art. 394 CPA.)



2.3.2 Right to Equal Treatment



The right to equal treatment requires equal treatment of those who are in an equal

position and different treatment where the state of facts is different. In accordance with

par. 2 art. 14 of the Slovenian Constitution, all persons are equal before the law. The

principle of equality rests on particular constitutional provisions directly referring to

equality and equal rights. In this manner, Article 22 of the Constitution guarantees the

equal protection of rights. The fundamental procedural guarantees, which include the

right to a statement and the right to equal treatment of parties in the procedure, are

accorded to all parties. The court treats everyone the same and decides the matter in

such a way as in substantially similar cases. The court may use substantive law in the

same way as in similar cases. When a decision of the court deviates from the settled

case-law on same matter, a violation of this right is noted.55 The Slovenian Supreme

Court of resolves the divergence in case law.56



The Supreme Court is responsible for reconciling case law. Special instruments

enabling reconciliation are the legal opinions of the General session of the Slovenian

Supreme Court on questions of importance in the unification the law. (Art. 110 Courts

Act.) 57 Such instrument serves the goal of unification in cases where reconciliation is

not readily achieved even before the Supreme Court. The legal opinion on a specific

issue is used to thus demonstrate the unity of case-law.58



Under Article 22 of the Slovenia Constitution, the court is prohibited from treating

parties unequally. The court may not in a particular case deliver judgment which would

arbitrarily depart from unified and established court practice. A violation of this right

occurs if three conditions are met: 1. that on a particular issue, there is uniform and

consistent case-law; 2 that the court departed from this norm and 3. that the departure

was arbitrary.59 This does not mean, however, that the lower courts may not depart from

settled case law. Pursuant to Article 22, a court may depart from settled case law if it

explains its decision, as it would when the judge thinks that the settled case law is

unconstitutional.60



55 But case law has no binding character. The court must not arbitrary depart from settled case

law. The procedural requirement for the court to depart from settled case law obligates the court

to provide special reasons. More on this: A. Galič, Inconsistency of Case Law and the Right to a

Fair Trial, Procedural Human Rights and Access to Justice in the World of Emergencies and

Economic Crisis, in Public and Private Justice, course material, Dubrovnik, 2014, available at:

alanuzelac.from.hr.

56 Decision of the Supreme Court of RS, No. Sodba in sklep II Ips 14/2002, II Ips 400/2002.

57 Official Gazette of the RS, No. 94/07 – official consolidated text, 45/08, 96/09, 86/10 –

ZJNepS, 33/11, 75/12 – ZSPDSLS-A, 63/13.

58 Decision of the Constitutional Court of RS, No. Up-440/04, 23.03.2006.

59 Decision of the Constitutional Court of RS, No. US Up-689/05, 31.01.2007.

60 Decision of the Constitutional Court of RS, No. US U-I-155/10, 06.07.2011.





Part I


17




2.3.3 Sanctions for Passivity or Absence of the Party in the Procedure



The court must allow the parties to participate in the litigation and to state their

positions. However, the parties have a right and not a duty actively to participate in the

proceedings. The law imposes different sanctions for passivity of the parties.



If a defendant does not submit their defence plea within thirty days from the day the

action was served on them, the court may render a judgment granting the claim (default

judgment), provided that (1) the action has been duly served on the defendant, (2) the

action does not set forth a claim which the parties may not dispose of (par. 3 Art. 3); (3)

the claim is based upon the facts stated in the action and (4) the facts upon which the

claim is based are not in contradiction of evidence adduced by the plaintiff or facts

subject to judicial notice. (Art. 318 CPA.)



Under the CPA, parties are obligated to state all facts upon which their motions are

based, adduce evidence to establish the truth of their statements, offer declarations

regarding the statements and evidence adduced by the opposing party, until and

including the first session of the hearing. (par. 1 Art. 286 CPA.) At later sessions, the

parties may present new facts and new evidence only if at the first session of the hearing

they were prevented from presenting them by reasons beyond their control. (par. 4 Art.

286 CPA.)



Sanctions for not appearing at the main hearing are set forth in Article 282 of the CPA:

- If neither of the parties appears at the settlement hearing, or at the opening hearing if

the settlement hearing has not been held, 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 established (judgment on the basis of the file).

The court shall decide in the same manner if one of the parties fails to appear at the

hearing and the opposing party makes a motion for decision on the basis of the file.

No appeal shall be allowed against the order by which the court denies a motion for

decision based on the facts in the file.



In special small claims procedure, CPA provides additional sanctions. Namely, in the

small claims procedures, the plaintiff must state all facts and adduce all evidence in the

action, while the defendant shall do so in their defense plea. (Art. 451 CPA.)

Additionally, each party may file one preparatory pleading. (par. 2 Art. 452 CPA.) Facts

and evidence presented in pleadings other than those referred to in Article 452 are to be

ignored.



If a defendant who has been timely served with the plaintiff’s pleadings fails to file a

defense pleading, the claim shall be deemed to be acknowledged. The court shall

without further acts render its judgment on the basis of such acknowledgment. (Art. 316

CPA.)



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Part I


If the plaintiff has requested that a hearing be conducted61 and does not appear at said

hearing despite having been duly summoned, the court shall render a judgment on the

basis of denunciation. (Art. 317 CPA.) If the hearing has been requested by the

defendant and the defendant does not appear at the hearing despite having been duly

summoned, the court shall render a judgment on the basis of acknowledgement,

provided the conditions laid down in Article 316 have been fulfilled. In a case where

both parties have made a request for a hearing to be conducted and they both fail to

appear despite having been duly summoned, the action shall be deemed to have been

withdrawn. (par. 3. Art. 454 CPA.)



2.4

Principle of Orality – Right to Oral Stage of Procedure, Principle of Written

Form



The Slovenian CPA combines the principle of orality with the principle of written form.

According to the CPA, the court decides the claim on the basis of an oral, immediate,

and public consideration of the case. (Art. 4 CPA.) The principal part of the proceeding

is the main hearing, which is conducted orally. Paragraph 2 of the same Article

regulates that in cases specified by the CPA, claims may also be determined on the basis

of procedural acts made only in written form and on the basis of circumstantial

evidence. If for a certain procedural act no particular form is prescribed, such act shall

be made in writing if offered outside of the main hearing, and orally if taken at the main

hearing (Art. 16 CPA). Where a written form is required, electronic form is considered

the equivalent of the written form, provided the information in electronic form is

suitable for processing by courts, available and appropriate for later use. Information

offered in electronic form may not be denied its evidentiary value simply because it is

provided in electronic form. (Art. 16.a CPA.)



The principle of orality is emphasised at the trial (settlement hearing, main hearing) at

the first instance. At the first session of the main hearing, parties present their complaint

and answer to the claim orally. (Art. 284 CPA.) Witnesses are examined orally, except

in cases where written statements may be submitted. (Art. 238 and 236.a CPA.)



The court decides whether the expert is to offer the findings and the opinion orally at the

hearing or in writing prior to the hearing. (Art. 253 CPA.) The CPA regards the written

opinion as an alternative, in practice, however, experts offer written opinions in most

cases. Each written opinion should be recited orally as well as at the main hearing.62



The principle of orality comes particularly to expression within the procedural guidance

of the court.63 The judge conducts the main hearing, puts questions to the parties,



61 In small claims proceedings the principle of written form has primacy. If, after the receipt of the

defense plea and the preparatory pleadings of the parties, the court finds that no dispute exists the

facts and that no other obstacles hinder the rendition of a decision, it shall decide the case without

a hearing (par. 1 Art. 454 CPA).

62 V. Rijavec in L. Ude, N. Betetto, A. Galič, op. cit., vol. 1, p. 154.

63 Ibidem.





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19




examines witnesses and experts, admonishes the parties, their statutory representatives

and/or attorneys and announces the decisions rendered by the court. (Art. 298 CPA.)64



At the settlement hearing, the court openly discusses with the parties the factual and

legal aspects of the case in order to define the essence of the dispute, reviews the

possibility of a court settlement and endeavours to reach such a conclusion. (Art. 305.a

CPA.) The principle of written form is prescribed for proceedings conducted outside the

main hearing. The complaint, defence plea, ordinary and extraordinary legal pleadings,

and other declarations, motions and notices which are to be made out of court must be

filed in writing. (Art. 105 CPA.)



The principle of written form is mostly applied in special proceedings in commercial

litigation where the parties are not able to give statements outside the main hearing (Art.

494 CPA) and the court may decide the case without the main hearing. Also in

proceedings for issuing a payment order, the court issues the payment order without the

main hearing. (Art. 431 CPA.) The principle of written form prevails in special small

claims proceedings as well.



2.5

Principle of Directness or Immediacy



The core of this principle is that the judgement should be rendered by the judge who

conducted the trial and was personally present at the taking of evidence. This principle

is included in Art. 4 of the CPA together with principle of orality and principle of public

hearing. The court shall decide upon the claim on the basis of an immediate

consideration of the case.



This principle is especially relevant in connection with the free assessment of evidence,

which provides that the judge may freely assess the evidence only if they are present at

the time evidence is taken.65 The principle is chiefly applied in litigation at the first

instance.



There are many provisions in the CPA that ensure application of this principle. Thus,

the court may, upon a motion by the opposing party, order the party submitting the

transcript to produce the original document if only a transcript of the document has been

submitted, and allow the opposing party to inspect it. (par. 3 Art. 107 CPA.)

Notwithstanding representation by an attorney a party may be ordered by the court

personally to give a declaration as to the facts in dispute. (Art. 86 CPA.)



Especially important is the provision that the evidence must be produced before the

judicial panel at the main hearing. However, for justified reasons the panel may decide

that specific pieces of evidence be produced before the presiding judge or before the

judge of a requested court. In such event, the record on production of evidence shall be



64 In practice, courts do not announce decisions orally but in written form without prior oral

pronouncement. Ibidem.

65 L. Ude in L. Ude, N. Betetto, A. Galič, op. cit., vol. 1, p. 48.

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Part I


read at the main hearing. (Art. 217. CPA.) The exception to this principle is also the rule

included in Article 302 of the CPA.



In the event that the hearing is adjourned, a new hearing must be held before the same

judicial panel or judge, if possible. If the session is planned to be conducted before a

changed panel, the main hearing must start again. The panel may decide upon hearing of

opinion by the parties, however, not to repeat the examination of witnesses, experts and

parties and not to repeat recitation of its legal opinion, but rather to read the records on

the production of this evidence. (Art. 302 CPA.)



If the main hearing is held before the panel, the judgment shall be rendered by the

presiding judge and other members participating in the session in which the main

hearing shall have been completed.



This principle is consistently enforced in the proceedings at the first instance. The

appellate court may only in exceptional cases change the factual findings made by the

court of first instance.66 This is possible only when the appellate court conducts the

appellate hearing or if the court evaluates the documents or indirect evidence differently

or makes different decision on the basis of indication. (Art. 358 CPA.)



If the appellate hearing is conducted, the principle is fully enforced.67



2.6

Principle of Public Hearing



The principle of public hearing is based on the constitutionally prescribed principle of

the public nature of court proceedings. (Art. 24 Slovenian Constitution.) According to

the Slovenian Constitution, court hearings shall be public and judgements shall be

pronounced publicly. Only statutory law may provide exceptions.



The principle of public hearing is included in Article 4 of the CPA, which states that the

court shall decide on the basis of public hearing and consideration of the disputed case.

This principle applies to the main hearing (Art. 293 CPA) and for sessions outside main

hearing. (Art. 297. CPA.)



The main hearing may be attended by persons of legal age. The CPA does not include

any rules on public voice and audio recording. The answer to the question of the

public’s right may be found in the previously indicated report about the events at the

main hearing Article 24 of the Constitution regarding other constitutionally guaranteed

rights. In deciding whether to allow public recording, the court will take in to the

account the interest of the public on the one hand and right to privacy of the parties on

the other. In practice, the civil court limits the publicity to allowing the general public to

take pictures at the beginning of the main hearing.68





66 Ibid, p. 50.

67 Ibidem.

68 N. Betetto in L. Ude, A. Galič, N. Betetto et al., op. cit., vol. 2, p. 626.





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21




Apart from publicity for the general public, we need to distinguish publicity for the

parties. Publicity for the parties does not extend to all procedural acts of the parties. The

judge communicates with parties at the main hearings. The acts that parties conduct

outside the main hearing must be in writing. (Art. 16 CPA.) The principle of public

hearing applies to the appellate main hearing as well.



2.6.1 Exceptions to the Principle of Oral Hearing



The public may be excluded by statutory law or by order of the court. In family and

paternity cases the public is excluded by statute. The court may exclude the public from

all or part of the main hearing, when exclusion is required in the interest of official,

business or personal secrets or for moral considerations. The court may also exclude the

public from the main hearing when the court cannot maintain order and ensure the

undisturbed progress of the proceedings.



2.7

Other General Principles in the Slovenian Legal System



1) The duty to tell the truth: in a court of law, the parties, their statutory representatives

and attorneys shall speak the truth and exercise the rights stipulated by the CPA in a

fair manner (Art. 9 CPA).

2) The principle of accelerating the proceeding and principle of economy: The court

shall see that the proceedings be completed without any unreasonable delay or

unnecessary expenses, and shall prevent any abuse of procedural rights by the

parties to the litigation (par. 1 Art. 11 CPA).

3) The principle of prevention from abuse of procedural rights: parties should exercise

right stipulated by the CPA in a fair manner. Article 11 CPA determines that in the

event that the parties, interveners, their statutory representatives or attorneys, with

intention of harming another person or achieving goals contrary to the custom and

usage or good faith and fairness, abuse the rights stipulated by the CPA, the court

may impose on them a fine or other measures provided hereinafter. In the event of

abuse, the fine should not exceed 1,300.00 EUR.

4) The principle of assistance for party without legal expertise: the court must advise a

party who is not represented by an attorney and who by reasons of ignorance fails to

exercise their procedural rights as to which of the acts of procedure the party is

entitled to execute (Art. 12 CPA). This duty of the court to instruct the party about

the rights refers only to procedural rights and not to substantive rights.69

5) The principle of binding nature of final decisions of other authorities: if adjudication

of the dispute is dependent on a prior resolution of the question of whether a right or

legal relation exists (preliminary question of law), which has not yet been decided

by a judicial or other competent body, the court may resolve such question as well,

unless otherwise provided by special regulations (Art. 13 CPA). When the claim is

based on the same state of facts that has already been adjudicated in the criminal

proceedings, the court shall be bound by a final condemnatory sentence issued in the



69 Except in family and paternity matters, where the court also instructs on substantive rights. N.

Betetto in L. Ude, N. Betetto, A. Galič et al., op. cit., vol. 1, p. 113.

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Part I


criminal proceedings, but only in respect of the existence of the criminal offence and

criminal liability of the offender (Art. 14 CPA).



3

Evidence Law



3.1

General Principles of Evidence Taking



3.1.1 Free Assessment of Evidence



The principle of free assessment is a fundamental principle in Slovenian civil procedure

included in Article 8 of the CPA. In the system of free assessment the judge is the one

to evaluate the evidence without being bound by any formal rules on probative value of

certain evidence. Probative value depends only on individual belief or conviction of the

trial judge in each matter separately.70 The free assessment of evidence is the right and

duty71 of the court to assess each piece of evidence separately and collectively. In the

evidence-taking stage the CPA includes the special rules for each type of evidence,

meant as a minimum guarantee for the right free assessment of the taken evidence and

the free assessment of evidence presupposes that the evidence were taken by this rules.72

The free assessment of evidence is a method that functions in concrete judicial

proceedings for determining the actual substrate judicial decisions.73



The free assessment relates to the selection of evidence, methodology for taking of

evidence and on evaluation of their probative value. Our CPA does not impose

restrictions on the selection of means evidence, which means that parties may propose

any mean of evidence not only those included in CPA. However, the law regulates some

prohibitions. A witness may not be examined if, by giving a testimony, a person might

violate their duty to keep an official or military secret, as long as the competent

authority releases them from such duty (Art. 230 CPA). A witness may also refuse

testimony: on what the party has confessed to them as their attorney; on what the party

or other person has confessed to them as their confessor; on facts of which they have

learnt as a lawyer or a doctor or in pursuance of other activity, if they are bound to

protect the secrecy of what they learn in the practice of a legal or medical profession or

in pursuing such other activity (par. 1 Art. 231 CPA). A witness may refuse to answer a

particular question for justified reasons (Art. 233 CPA). The same reasons refer to

refusing to duty of the parties to give the documents (Art. 297 CPA) and to submit the

object of the view (Art. 222 CPA).



Even though, court decides which evidence will be produced for determination of the

ultimate facts (Art. 213 CPA), the court is bound by the parties’ right to propose

evidence – with their procedural burden of proof (Art. 212 CPA). If the court rejects the

proposal of a certain piece of evidence this rejections must be explained. The court may

take statements to be truthful without the need for the facts to be proved, if the facts



70 J. Zobec in L. Ude, N. Betetto, A. Galič et al., op. cit., vol. 1, p. 84.

71 J. Juhart, Civilno procesno pravo, op. cit., p. 59.

72 Ibidem.

73 J. Zobec in L. Ude, N. Betetto, A. Galič et al., op. cit., vol. 1, p. 88.





Part I


23




were admitted by the party in the court (par. 1 Art. 214 CPA). However, the court may

order the taking of evidence when a party is believed to have admitted to the facts with

intention to perform a dispositive act which they are not entitled to perform (par. 3 Art.

3 CPA). Furthermore, the facts to which a party has admitted or which a party has not

admitted to without giving any reasons for shall be deemed to have been admitted

unless the purpose of the non-admittance arises from the other statements made by the

party (par. 2 Art. 214 CPA).



If the evidence produced in respect of a particular fact does not induce a sufficient

degree of persuasion, the court’s conclusions on such fact shall be drawn pursuant to

rules on the burden of proof (Art. 215 CPA). Material burden of proof means that the

party bears the consequences for not proving the stated facts – unfavourable judgment.

The burden of proof rules indicate to the judge the way to make a decision if the judge

was not persuaded on the existence or nonexistence of some of the important facts.74



The judge must carefully and thoroughly evaluate every piece of evidence in itself, and

the evidence as a whole, and consider the outcome of the entire proceedings (Art. 8

CPA). This involves analysing all evidence and comparing it with other evidence, as

well as all the evidence that speak to the truthfulness or falseness of a certain fact are

then combined into a whole (synthesis).75 These are the methodological instructions for

assessing. The final evaluation needs to consider the success of the entire procedure, so

the truth may only be determined in a formal way.76



In the system of free assessment of evidence, the judge is not bound by formal rules.

Nevertheless, our civil procedure contains certain formal rules. According to Article

224 CPA, a document issued by a government body in the prescribed form and within

the limits of its powers, or a document issued by a local government body or other

statutory authority in the said form and manner (public document) shall prove the truth

of what is certified or determined therein. There are also legal presumptions that fall

into the term legal rule. Legal presumptions are rules on the probative value of

circumstantial evidence. In situations where the judge disposes with a public document

or a presumed basis, the judge is obliged to take as proven what is laid down in the

document or what indicates the presumed basis.77



One of the exceptions to the free assessment of evidence is related to bondage to a final

judgment of conviction concerning the existence of a criminal offense and criminal

liability rendered in criminal proceedings (Art. 14 CPA).



According to Art. 8 of the CPA, the definition of the principle of free assessment of

facts is the following: The decision on the facts which will be deemed to have been

proven shall be based upon the opinion that the court shall carefully and thoroughly



74 J. Zobec in L. Ude, N. Betetto, A. Galič et al., op. cit., vol. 2, p. 380.

75 J. Zobec in L. Ude, N. Betetto, A. Galič et al., op. cit., vol. 1, p. 88.

76 Ibid, p. 92.

77 Ibid, p. 89.

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Part I


evaluate every piece of evidence in itself, and the evidence as a whole, and considering

the outcome of the entire proceedings.



3.1.2 Relevance of Material Truth



The principle of material truth has been deleted from Slovenian CPA as a general

principle. In the CPA from 1976 the former Article 7 stated that the court is obliged to

truthfully determine disputed facts, which determine the merits of the plaintiffs claim.

As the main the purpose of the deletion, the government stated that the provisions which

order the court the duty to determine material truth ex officio, are not in line with the

dispositive nature of civil procedure and their deletion will contribute to speeding up the

procedures.78 Nevertheless, there are provisions in the current CPA that facilitate

determination of the truth and some that have a preventive79 or restrictive nature.



The provisions that enable establishing the truth are provisions on the basic principles:

the principle of free evaluation of evidence, the audiatur et altera pars principle,

principle of public hearing, orality and immediacy, the duty to tell the truth, the

inquisitorial principle.



Furthermore, all the provisions on the evidential system help courts find the truth and

witnesses’ duty to testify (Art. 229 CPA), experts’ duty to give their findings and

opinions (Art. 246 CPA), and the party’s duty to submit documents corroborating their

statements (Art. 226 CPA).



The court needs to state in the grounds of the judgment the claims raised by the parties,

the facts asserted to give rise to these claims, the evidence, and the law applied in the

judgment (par. 4 Art. 324 CPA). The judge is obliged to explain which facts were

counted as proven and which were not.



The system of remedies is a tool for establishing the truth. An incorrect or incomplete

determination of the state of the facts is deemed to exist when the court incorrectly

determines or fails to determine a certain fact (Art. 340 CPA).



A request for revision, as an extraordinary remedy, may not be lodged on the grounds of

incorrect or incomplete determination of the state of the facts (par. 3 Art. 370 CPA).

However, if the incorrect and/or incomplete determination of the state of the facts is due

to the incorrect application of substantive law and if, therefore, the attacked judgment

cannot be modified, the revising court shall by a decree grant permission for the

revision and set aside, in whole or in part, the judgment of the courts of first and second

instance, or only the judgment of the court of second instance, or only the judgment of

the court of first instance, and remand the case for rehearing before the court of first or

of second instance (par. 2 Art. 380 CPA).





78 A. Galič, D. Wedam Lukić in L. Ude, N. Betetto, A. Galič et al. op. cit., vol. 1, p. 78.

79 Ibid, p. 79.





Part I


25




These restrictions are reflected in the rules on preclusions. Namely, parties are bound to

state all the facts upon which their motions are based, adduce evidence required to

establish the truth of their statements, and to produce declarations regarding the

statements and evidence adduced by the opposing party at the first session of the main

hearing. At later hearing sessions, parties shall be allowed to present new facts and new

evidence only if at the opening session they were prevented from presenting them by

reasons beyond their control (Art. 286 CPA).



In the appeal new facts and evidence may be presented only if the appellant proves

presumptively that for reasons beyond their control they have been unable to present

them by the first hearing session or until the conclusion of the main hearing, or if

conditions stated in Art. 286 of the CPA are fulfilled (Art. 337 CPA).



The parties may present new facts and new evidence in the revision as an extraordinary

remedy only if such evidence and such facts are related to a severe violation of the civil

procedure provisions for which a revision may be lodged (Art. 372 CPA).



The proceedings finally concluded by a judicial decision may also be reopened

(extraordinary remedy reopening of the procedure) upon a motion by a party if said

party learns new facts or obtains new evidence which, if it had been presented in the

earlier proceedings, might have led to a more favorable decision (point 10 Art. 394.

CPA). However, a motion to reopen the proceedings which is filed for the reasons

stated in point 10 of Article 394 may be granted only in the event that without the

party’s own fault, it was unable to allege such reasons until the earlier proceeding was

concluded by a final judicial decision (par. 2 Art. 395 CPA).



Parties’ dispositions may also count as restrictions on establishing the truth. The facts to

which a party has admitted in court need not be proved, unless the party admitted the

facts with intention to perform a dispositive act which the party is not entitled to

perform (Art. 214 CPA).



If the defendant acknowledges the claim before the main hearing is over, the court shall

pass without further consideration a judgment satisfying the claim (judgment on the

basis of acknowledgment) (Art. 316 CPA). If the plaintiff waives their claim before the

main hearing is over, the court shall pass without further consideration a judgment

dismissing such claim (judgment on the basis of waiver) (Art. 317 CPA).



If the defendant fails to file the defense plea within the time limit (30 days), the court

renders a judgment satisfying the claim (default judgment), provided that: 1. the action

has been duly served upon the defendant to file the defense plea; 2. the action does not

contain a claim which the parties may not dispose of (par. 3 Art. 3 CPA); 3. the claim is

founded upon the facts stated in the action; 4. the facts upon which the claim is based

are in contradiction with the evidence adduced by the plaintiff or with judicial

knowledge (Art. 318 CPA).





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Part I


3.2

Evidence in General



In Slovenian civil procedure all means of proof have equal weight and the law does not

give preference to certain means of proof. Nevertheless, there are some exceptions in

the CPA where the law foresees legal presumptions (par. 3 Art. 214 CPA) and

commonly known facts (par. 4 Art. 214 CPA). The CPA recognises that public

documents demonstrate the truthfulness of their content80 (Art. 224 CPA.)



In Slovenian civil procedure there is no rule on the order of evidence. The CPA does not

require that the court first take the most direct and then other more indirect or less

important evidence. There was one exception according to the CPA from 1976 where

the parties could be examined only if no other evidence was available or if the court

considered that such an examination was necessary for establishing important facts.81

The current CPA no longer includes such a distinction between varying means of proof.



However, certain facts may be proved only with certain means of proof: prorogatio fori

may be proved only by written agreement (par. 3 Art. 69 CPA). The payment order will

be issued in a special procedure if a monetary claim is supported by an authentic

document, the original or a certified copy of which is enclosed with the action (Art. 431

CPA).



In the system of free assessment of evidence, the judge is not bound by formal rules.

Nevertheless, our civil procedure contains certain formal rules. According to Article

224 of the CPA, a document issued by a government body in the prescribed form and

within the limits of its powers or a document issued by a local government body or

other statutory authority in said form and manner (public document) shall prove the

truth of what is certified or determined therein. There are also legal presumptions that

fall into the term of legal rule. Legal presumptions comprise rules on the probative

value of circumstantial evidence. In situations where the judge disposes with a public

document or a presumed basis, the judge is obliged to take as proven what is laid down

in the document or what is indicated by the presumed basis.82



The next exception to the free assessment of evidence relates to bondage to a final

judgment of conviction concerning the existence of a criminal offense and criminal

liability rendered in criminal proceedings (Art. 14 CPA).



On the grounds of procedural burden of proof (adversarial principle) the court

determines what evidence will be produced to establish the ultimate facts (par. 2 Art.

213 CPA).





80 Facts contained in a public document and correctness of composition of the same may be

subject to contestation (par. 3 Art. 224 CPA).

81 J. Juhart, op. cit., p. 358.

82 Ibid, p. 89.





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27




3.2.1 Minimum Standard of Proof to Consider a Fact as Established



The standard of proof in our civil procedure when the court decides on the merits is

believed to be persuasion (Art. 8 CPA). This means that the court, when classifying

facts under a particular substantive rule, must be convinced that the existence of the

facts will not be questioned by any reasonable person.83 However, there are many facts

for which a lower standard of proof is sufficient. Probability as a lower standard of

proof is informal and is not bound by the strict rules of evidence taking and represents a

lower level of consciousness as a cognitive method.84 The level of this lower standard is

different and implies different procedural rules.85 Legal theory86 stresses that the terms

with which the law refers to the standard of probability are the following: “if it is

shown” (par. 1 Art 82 CPA); “in an expeditious and appropriate manner” (par. 3 Art. 44

CPA); “on the basis of facts stated in the action, and of judicial knowledge” (par. 2 Art.

17 CPA); “when the court recognises” (par. 1 Art. 116 CPA); “establishes” (par. 3 Art.

79 CPA). Lowering the standard of proof because it is determined by procedural rule

can also be seen in the rule on discretion.87 Art. 216 of the CPA provides that if a party

has been awarded the right to compensation, the right to any amount of money or

generic goods, and if the amount of money or quantity of goods cannot be determined

or if following the determination thereof were to ensue unreasonable difficulties, the

determination of such an amount of money or quantity of goods shall be left to judicial

discretion. Court practice also supports a preponderate probability standard, which is

considered sufficient for a causal link in tort law.88



3.2.2 Means of proof



Our CPA regulates means of proof but the list is not exhaustive, so the principle of

numerus clausus does not apply. The CPA regulates the following means of proof:

inspection of the object, documents, witness testimony, expert testimony, and party

testimony. From the regulation it does not follow that some of the means of evidence

are excluded. However, there are exceptions provided by law when witnesses are

excused from testifying against the party, and there can be no coercive measures used to

procure the parties’ testimony. Evidence gained in violation of personal rights

constitutes a special problem. CPA does not contain special provisions, however this

does not mean that such evidence is admissible.



Examination of parties is one of the means of proof regulated by the CPA. To establish

the disputed facts which are of importance in the determination of the dispute the court

may also examine the parties (Art. 275 CPA). Each or both parties may propose that

such examination.



83 T. Pavčnik, Dokazni standard, Podjetje in delo, vol. 7/2012, p. 2.

84 J. Zobec in L. Ude, N. Betetto, A. Galič et al., op. cit., vol. 2, p. 332.

85 T. Pavčnik, op. cit., p. 2.

86 J. Zobec in L. Ude, N. Betetto, A. Galič et al., op. cit., vol. 2, p. 335.

87 T. Pavčnik, Dokazni standard, Podjetje in delo, vol. 7/2012, p. 3.

88 Higer court of Ljubljana, No. VSL sodba in sklep I Cp 3193/2013, 5.3.2014; VSL sodba II Cp

2866/2013, 26.3.2014.

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Part I


The fact that the evidence, or means of proof, is at the same time also a party, requires

special rules. Due to the right not to self-incriminate, the party may not be forced to

testify, and because of the protection of the procedural balance and equality of arms

both parties must be examined.89 A duly summoned party who has not appeared in court

may not be subject to any compulsory measure and may not be forced to testify. A party

may not be forced to give testimony. The sanction for breaching the duty to testify is

indirect. The court shall assess, considering all the circumstances of the case, the

significance of the fact that a party has not appeared at the hearing or has refused to

testify. This constitutes a strong indication on which grounds the court may, by taking

into account all the circumstances, conclude that the statements from the party which

failed to appear at the hearing are not true, and that the statements of the opposite party

are.90 But if the reasons for not appearing at the hearing are justified, the court may

determine a new session for the main hearing. The party has a right to refuse to answer a

particular question for justified reasons, especially if, by answering, they might expose

themselves, their relatives, their spouse or domestic partner, regardless of whether the

marriage has terminated or not, or their guardian or person under guardianship, either

adopter or adoptee, to a serious disgrace, considerable financial loss, or criminal

proceedings (Art. 233 CPA). A party as a witness may refuse testimony: regarding what

the party has confessed to their attorney; regarding what the party or other person has

confessed to them as their confessor; regarding facts they have learnt as a lawyer or a

doctor or in pursuit of some other activity, if they are bound to protect the secrecy of

what they learn in the practice of the legal or medical profession or pursuing such other

activity (Art. 231 CPA).



This evidence will be taken only if it is proposed by one or both parties. Even if a party

proposes only their own testimony, the court must also examine the opposite party’s.

The exceptions to the rule on the party’s examination may be summarized in three

groups: if the court finds that a party or other person to be examined as a party lacks

knowledge on the disputed facts; that examination of a party is not possible; or that the

other party refuses to testify or does not appear at the hearing. In these cases it may

decide to examine only the other party (Art. 258 CPA). The court is authorised to

evaluate all circumstances of the case, including assessing the significance of the fact

that a party did not appear at the hearing or has refused to testify.



The examples for a party’s inability to testify are double: they may be factual or legal.

The factual reasons include cases where a party is not capable of reproduction (mental

illness), even though the facts are known to such a party, and cases when the party is

unavailable (unknown residence). There are also legal barriers in which a party faculty

for being examined is not recognised. A person may not be examined as a witness if by

giving a testimony they might violate their duty to keep an official or military secret, as

long as the competent authority releases them from such duty (Art. 230 CPA).



The party examined as a witness has three duties to fulfil: the duty to respond to the

invitation to examination, the duty to testify, and the duty to tell the truth. Only the duty



89 J. Zobec in L. Ude, N. Betetto, A. Galič, V. Rijavec et al., op. cit., vol. 2, p. 510.

90 Ibid, p. 525.





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29




to tell the truth has the nature of a public, the other two are the obligation of the party

towards themselves.91 A party may not be examined under oath.



Parties under legal age are represented by parents and the court may examine any of

them. However, the court may examine children and not their legal representative, but

the decision depends on the actual capability of the party involved and on the

appropriateness of the party to be examined (Art. 260 CPA).



The same as for witnesses, the parties have a duty to tell the truth if they decide to

testify. The criminal offense of perjury is committed by a party which in the process of

taking evidence by examining the party as a witness in a civil procedure gives a false

statement and the court then assesses this statement as grounds for the court’s

decision.92 A party which produces a false statement while being heard in civil

proceedings before the court, upon which the court or other competent authority bases

its decision in such proceedings, shall be sentenced to imprisonment for no more than

three years (par. 2 Art. 284 Criminal Code of RS)93.



The parties’ testimony is evaluated according to methodology foreseen by the principle

of free assessment of evidence. The CPA foresees some cases where certain facts must

be proven by a formally prescribed type of evidence. Namely, some facts may be

proven only by a document as evidence. Such a rule applies to proving that an

agreement exists on territorial jurisdiction. The plaintiff must submit written

documentation proving that both parties have agreed on a different arrangement for

territorial jurisdiction or the defendant must claim and attach this evidence when

submitting answers to the action (par. 4 Art. 69 CPA).94 Also the power of attorney

must be submitted to the court by an attorney after the first act of procedure has been

conducted on behalf of the party (par. 1 Art. 98 CPA).



The payment order will be issued in a special procedure if a monetary claim is

supported by an authentic document, the original or a certified copy of which is

enclosed with the action (Art. 431 CPA).



Cheques and bills of exchange are securities which are regarded as authentic

documents. An authentic document is a document regulated by law, which does not

represent an enforcement order. However, the authentic document expresses a high

level of probability that the claim exists.95 The document is authentic if provided by

law. Thus, the CPA includes a non-exhaustive list of authentic documents.96 In the



91 Ibid, p. 515.

92 Decision of the Supreme Court of RS, No. Sodba I Ips 415/2007, 28.2.2008.

93 Official Gazette of the RS, No. 50/12 – official consolidated text.

94 Agreement on territorial jurisdiction is not allowed in cases when exclusive jurisdiction is

prescribed.

95 V. Rijavec in L. Ude, N. Betetto, A. Galič et al., op. cit., vol. 3, p. 676.

96 According to the CPA authentic documents are: public documents; private documents on which

the signature of the debtor has been authenticated by a body authorized for authentication; bills of

exchange or cheques, with the protest and certificate of payment when the latter are required for

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Part I


special procedure for issuing a payment order the authentic document is the grounds for

the court to issue the payment order. An authentic document constitutes means of

evidence only if it is also a public document at the same time. This means that the law

prescribes probative value only for authentic documents which are also public

documents. If the authentic document is not a public document, it is otherwise regarded

only as reliable evidence, which indicates probability.97 A cheque or bill of exchange is

a private document viewed by the CPA as an authentic document upon which the

plaintiff may demand from the court the issue of a payment order. This means that both

of them are regarded as grounds for a payment order to be issued in the special

procedure. However, if the payment order does not become final, the matter is

redirected from a special procedure to a contradictory procedure, where the document as

evidence must be taken. Only then can evidence be taken for proving decisive facts on

which the claim is grounded.



The CPA does not provide an answer to the question of whether some pieces of

evidence have a greater value than others. The court assesses evidence upon diligent and

careful assessment of evidence, using the methodological instructions for evaluating the

evidence presented.



Nevertheless, some types of evidence could have a higher value than other. The CPA

determines the probative value of public documents compared to private documents.

The probative value of both public and private documents is derived from the (legal and

factual) presumption that the content of the document is the statement of the person

indicated as issuer.98 However, with the public document, the law also emphasizes the

presumption that the content is authentic (Art. 224 CPA). The public documents contain

two evidential rules, which may be contested, namely: the formal probative value,

which means that the document was issued by a person designated as an issuer; and

material probative value, which includes evidential rule on the authenticity of the

document’s content.99 Facts contained in a public document or the correctness of a

public document’s composition may be subject to contestation (par. 3 Art. 224 CPA).



In legal theory and case law the written witness statement is considered to have lower

evidential value than a contract concluded in a notarial deed and the same applies if we

compare the examination of a witness.100 A document is the most reliable and effective

type of evidence, more so than witnesses, who may be an unreliable cognitive source,

especially when it comes to events from the remote past and testifying about them.101





the origination of the claim; certified statements of outstanding debts; invoices; other writings

assuming the character of a public document under special regulations (Art. 43 CPA).

97 Ibid, p. 687.

98 J. Zobec in L. Ude, N. Betetto, A. Galič, V. Rijavec et. al., vol. 2, p. 416-417.

99 Ibid, p. 421.

100 Ibid, p. 417.

101 Decision of Higher court of Ljubljana, No. VSL sodba I Cpg 280/2012, 16.4.2013.





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31




Furthermore, DNA analysis is considered to be reliable evidence, and in comparison to

other evidence it is regarded as primary and most reliable.102



Expert witnesses are considered as an assistant to the court. This type of evidence is

often used before Slovenian courts in civil cases. The reason lies not only in the fact that

experts contribute professional knowledge, but because with type of evidence helps in

reaching a balance against subjectivity or bias of other evidence.103 The purpose of

taking evidence from experts is therefore to obtain expertise, which the court does not

have. This expertise includes knowledge of the abstract rules of science and specific

professions and experience, and is only indirectly connected to concrete facts.104 But the

result of experts’ work is subject to the assessment of evidence and is not binding for

the judge.105 The value of this evidence is the same as of other evidence and the same

principles apply in terms of the duty of the parties to propose the expert witness as

evidence and of the court’s right to carefully assess the necessity and probative value of

such evidence.



The CPA does not regulate the sequence in which evidence is presented. Before the

current CPA, the party’s testimony could only be presented as evidence if no other

evidence was available; it was counted as a subsidiary type of evidence.



In order to prove that the parties agreed on territorial jurisdiction of another court, this

written agreement must be submitted to the court. The plaintiff must submit a written

document proving that both parties have agreed on different territorial jurisdiction, or

the defendant must claim and attach this evidence when submitting an answer to the

action (par. 4 Art. 69 CPA). Furthermore, power of attorney must be presented in

written form.



In a special procedure for issuing a payment order, the due monetary claim must be

supported by an authentic document (Art. 431 CPA).106



In small claims procedures, as a special, simplified procedure, the principle of the

written form is more pronounced. The court may omit the oral hearing if it considers

that the disputed facts could be established on the grounds of submitted written

evidence.107 However, if the oral hearing is held (by court decision or by the parties’

request), parties are prevented from stating new facts and evidence. The CPA strictly

regulates that the parties are allowed to state new facts and propose new evidence only

in their written claim and defence plea (Art. 451 CPA). After that, the parties have one

additional written submission each (par. 2 Art. 452 CPA). The court may limit the time

and extent of taking evidence and at its discretion take evidence so as to ensure the



102 A. Galič, Slovenia, Encyclopedia of Laws, op. cit., p. 176.

103 Ibid, p. 472.

104 V. Rijavec, Dokaz z izvedenci, Podjetje in delo, 2012, vol. 6-7.

105 J. Zobec in L. Ude, N. Betetto, A. Galič, V. Rijavec et. al., vol. 2, p. 474.

106 If the claim does not exceed 2,000.00 EUR, the court may issue a payment order even though

the claim is not supported by an authentic document (Art. 432 CPA).

107 This is not the case when one or both parties demand that an oral hearing be held.

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Part I


proportionality of the appropriate protection of the parties’ rights and of the goal of

accelerating the proceedings and their economy (par. 2 Art. 450 CPA).



3.2.3

Duty of Parties and Third Persons to Deliver Evidence



A party is obliged to submit to the court a document adduced as evidence to support

their statement (Art. 226 CPA). If the party fails to deliver the document, the court is

unable to take such evidence. The meaning of such an omission would depend on

certain circumstances. If the document is the only means of evidence, the court decides

according to the burden of proof (Art. 215 CPA). If the party proposed other evidence to

establish certain facts, this party may succeed in proving an ultimate fact with other

evidence. The party is also allowed to submit evidence up until and at the first session

of the main hearing, as well as at later hearings, but only if the party was prevented

from presenting the evidence due to force majeure.



If a party adduces a document as evidence to support statements, asserting that such a

document is kept by the opposing party, the court may order the opposing party to

deliver such document within a specified period of time. The party is always obliged to

submit evidence: if the party has referred to such a document in their statements; if the

law imposes such obligation; or if the document relates contextually to both parties to

the proceedings (par. 2 Art. 227 CPA). In other cases the party has a right to refuse to

submit the document claiming that the document is not in the party’s possession or that

special circumstances are given.



If a party ordered to submit a document asserts that it is not possession of said

document, the court may take evidence to determine the truth of this assertion (par. 4

Art. 227 CPA). The party that claims that the opposing party is in possession of the

document has the duty of submitting evidence to prove that the claim for delivery of the

document is grounded. If the court establishes that the opposing party has the document,

said opposing party has the right to prove that special circumstances exist.108 This

special circumstances give party the right to refuse the submission on grounds of

Articles from 231 to 234 of CPA – reasons for which the witness may refuse to testify

or to answer certain questions).



The court shall assess, at its own discretion and taking into account all circumstances of

the case, the significance of the fact that a party possessing a document fails to comply

with an order to produce it or asserts, contrary to the court’s belief, that they are not in

possession of such document (par. 5 Art. 227 CPA).



Persons other than the parties may be ordered to submit documents only if such an

obligation is imposed on them by the law, or if the contents of a document to be

submitted relate both to such a person and to the party adducing it as evidence. Third

parties have the right to give a statement on this matter, prior to issue of a court decision

ordering a third person to deliver a document (Art. 228 CPA).



108 J. Zobec in L. Ude, N. Betetto, A. Galič, V. Rijavec et. al., op. cit., vol. 2, p. 429.





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33




If a third person denies the obligation to produce the document, the decision regarding

such an obligation shall be given by the civil court. In this case the court may produce

evidence to determine the truth of this assertion. This special proceeding may result in

issuing the court decision, ordering the third party to deliver the document which is an

enforcement title. In this procedure the party needs to prove that the third party is in

possession of such a document and that this person is obliged to deliver it. The third

party has the right to file an appeal against the court’s decision. The final decision may

be enforced according the provisions of Slovenian law on enforcement and security

(Zakon o izvršbi in zavarovanju) only if the decision has become executable and the due

date for voluntary submission of the document has expired.



3.2.4 Value of Judicial and Administrative Decisions as Evidence



The judicial and administrative decisions are public, authentic documents which

constitute legal dispositions which cannot be challenged as evidence. Such judicial or

administrative decisions may be challenged only in the proceedings where they were

issued.109 Civil courts are bound by decisions which already determined the

interpretation of some questions important for the ruling in civil matter.



If a competent authority has already decided on a preliminary question which is not the

matter of civil litigation but on which the decision in the main case nevertheless

depends, the court deciding in the civil matter is bound by such a decision.110 This

means that if the preliminary question as to whether a right or legal relation exists is

already decided by a final decision in other judicial or administrative procedures, the

court is bound by such final decision. If the criminal court has already decided on the

question of the (non)existence of a criminal offence which is a preliminary question in a

civil matter for compensation, the civil court is bound by the conviction and acquittal

delivered in the criminal proceedings.111 If the court in a civil matter decides on the

same historical event as the criminal court, the court in the civil proceeding is bound by

a final condemnatory sentence issued in the criminal proceedings, but only in respect of

the existence of criminal offence and criminal liability of the offender112 (Art. 14 CPA).





109 Ibid, 422.

110 If the competent court did not decide on the preliminary question, the court deciding in the

main civil matter may resolve such a question as well, unless otherwise provided for by special

regulations.

111 By the opinion of the Supreme Court the civil court is not bound by the acquittal if the

judgment was rendered on the grounds that there was not enough evidence. Furthermore, there are

standpoints that the civil court is also bound by an unfounded decision because it prohibits a

retrial on the same subject. Decision of the Supreme Court of RS, No. Sklep II Ips 196/2011,

5.4.2012.

112 In a case about a car accident the civil court would determine who is responsible for the

damage and what the extent of the damage is. However, the criminal court would determine if the

car accident was caused with criminal offence and if the person responsible for accident is held

criminally responsible. L. Ude, Civilno procesno pravo, 2002, Ljubljana, p. 93-94.

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Part I


If the competent administrative body has already decided on a preliminary question

concerning the existence of some right or legal relationship, the court in the civil

proceeding is bound by this decision.



3.3

General Rule on the Burden of Proof



3.3.1

Main Doctrine Behind the Burden of Proof



The constitutional right to court access also has its normative basis in CPA. In Article 2

(par. 2) of the CPA it is determined that the court shall not refuse to hear any dispute

that is within its jurisdiction. When deciding, the court may with some certainty come to

the conclusion that the ultimate fact exists, or that it does not exist, or even that it cannot

reliably decide whether such a fact exists or not.113 This latter is called “non liquet”

crisis. If the judge is obliged to decide on the claim regardless, then there is no choice

other than to consider the fact upon the existence of which the judge could not make a

reliable decision as not existing.



The burden of proof relates to procedural duty or burden and to the rules which

determine which party bears the consequences of unproved statements on the existence

and nonexistence of ultimate facts.114 The legal doctrine distinguishes between

procedural and substantive burden of proof115 on the one hand and subjective and

objective116 burden of proof on the other.



The rules of burden of proof apply when the court upon the previously taken evidence

cannot with certainty determine a certain fact. This rule is included in Article 215 of the

CPA. The parties bear the burden of proof only for those statements which relate to

ultimate facts. The answer as which facts must be proven may be found in substantive

law. Decision-making according to the rules on burden of proof means constructing

lower premise of the judge’s syllogism.117 The material burden of proof is directly

applied at the moment the judgment is delivered. The party who failed to prove the

ultimate facts is punished with an unfavourable judgment.118 The main rule behind this

rule is that the burden of proof is borne by the one who claims and not the one who

denies.119





113 J. Zobec, Dokazno breme v pravdnem postopku, Pravnik, vol. 6-9/96, p. 331.

114 Ibid, p. 334.

115 The burden of proof until the decision is rendered is borne by the parties and is expressed in

their procedural activity (procedural burden of proof). The material burden of proof comprises the

rules which determine which one of the parties is obliged to prove certain facts. Ibid, 335.

116 Subjective burden of proof burdens and motivates the parties to prove certain ultimate facts.

The objective burden of proof relates to situations where the judge cannot with certainty

determine one or more facts in the dispute. This burden of proof is included in our CPA. T.

Kerestes, Dokazno breme, Podjetje in delo, vol. 7/2012.

117 J. Zobec, Dokazno breme v pravdnem postopku, Pravnik, vol. 6-9/96, p. 330.

118 J. Zobec in L. Ude, N. Betetto, A. Galič, V. Rijavec et al., op. cit. vol. 2, p. 380.

119 Ibid, p. 384.





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35




There are two parallel kinds of burden of proof, namely rules on burden of proof for

parties and rules on burden of proof for courts, but the latter is only a theoretical

construction.120 However, the court is also obliged to take that evidence which is not

proposed by the parties if this evidence is important for deciding whether the parties

dispose of claims which conflict with regulations in force and the principles of morality

(par. 3 Art. 3 CPA). Also the burden of proof for the court is expressed in material

procedural guidance (Art. 285 CPA).



Furthermore, there is a question in legal dogmatics on how to evaluate the rule of the

burden of proof.121 Some authors suggest that the rules are of a substantive nature,

others procedural.122,123 Nevertheless, Slovenian case law speaks in favour of the

substantive nature of the rule of burden of proof.124



The rules on burden of proof are special legal norms which are not formulated as legal

regulations, which can also be seen in Art. 215 of the CPA. This Article does not refer

to certain regulation but to rules on the burden of proof.125 The rules on the burden of

proof are explicitly regulated only when the law foresees inverse burden of proof.126

According to Zobec, the rules on the burden of proof are legal norms which cannot be

classified either under substantive law nor only under procedural law. These are rules

with a special legal nature, upon which the court decides on truthfulness or

untruthfulness of a certain claim about ultimate fact.127



3.3.2 Proof Standards



The question of proof standards in civil procedure is connected to the question

regarding how thoroughly must a fact on which a party is basing its claim or defense

plea be proved.128 The general standard for rendering a decision on the substantiality of

the claim is the certainty of the awareness or conviction that a certain ultimate fact

exists or does not exist. If evidence proposed by the parties and which are taken by the

court, do not constitute sufficient grounds for establishing positive or negative beliefs

regarding a certain ultimate fact, the court decides upon the rules of the burden of proof



120 J. Zobec, Dokazno breme v pravdnem postopku, Pravnik, vol. 6-9/96, p. 333.

121 T. Keresteš, Dokazno breme, Podjetje in delo, vol. 6-7/2012.

122 The main protagonist in ex-Yugoslavian doctrine to speak in favor of procedural nature is

Čalija. Ibid, p. 338.

123 The main opinion in Slovenian theory (Ude, Zobec, Juhart) is that these rules are of a

substantive nature. T. Keresteš, Dokazno breme, Podjetje in delo, vol. 6-7/2012.

124 Decision of the Supreme Court of RS, No. Sodba in sklep II Ips 755/2007 in II Ips 756/20079,

12.2010; Decision of the Supreme Court of RS, No. Sklep II Ips 182/2013, 24.4.2014.

125 J. Zobec, Dokazno breme v pravdnem postopku, Pravnik, vol. 6-9/96, p. 340.

126 The law on obligation in Art. 131 foresees that in disputes for compensation, the burden of

proof regarding the guilt falls on the defendant. The plaintiff must prove that the defendant’s

treatment is the reason that damage has been caused to the plaintiff and in what amount and that

between the unlawful treatment and caused damage causal link exists.

127 J. Zobec, Dokazno breme v pravdnem postopku, Pravnik, vol. 6-9/96, p. 340.

128 T. Pavčnik, Dokazni standardi, Podjetje in delo, vol. 6-7/2012.

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Part I


(Art. 215 CPA). In this case these rules determine which party will win in the

proceeding. 129



The position of the majority of the theory is that for the substantial decision the claims

on ultimate facts must be proved in such a way that any reasonable doubt in their

truthfulness is excluded. However, because of the nature or specificity of the relevant

fact, this proof standard is barely reachable, with the result that sometimes in case law

the proof standard is lowered in such a way that the court declares a certain fact as

proved on the basis of a suitable level of probability of the existence of the fact and not

on the basis of certainty. The lower proof standard may be accepted in those situations

when legitimate reasons demand easement of burden of proof.130



3.3.3 Rules Which Exempt Certain Facts from the Burden of Proof



Our legal system regulates situations where facts do not need to be proven. The facts a

party has admitted in the court need not be proved (par. 1 Art. 214 CPA). Furthermore,

the facts a party has admitted or which a party has not admitted without giving any

reasons therefor shall be deemed to have been admitted (par. 2 Art. 214 CPA).



Legal presumptions are another legal corrective to the strict rules of the burden of

proof.131 Facts presumed to exist by law need not be proved (par. 4 Art. 214 CPA). We

must distinguish between legal and factual presumptions. Factual presumptions are legal

rules on which the conclusion may be made from proved facts to those facts which are a

legal sign of factual status.132 Factual presumption need not to be proved, however the

presumed basis still must be proved, in which case the judge will take the presumed fact

as a basis for the decision without evidence.133 The factual presumptions may be

challenged by counter-evidence.134 The factual presumption would count as having been

successfully challenged if the presumptions are called into question by counter

evidence, at least so reasonable doubt would no longer be excluded.135



The object of legal presumptions is the existence or non-existence of a certain right or

legal condition, which means that the object of presumption is the right and not the

fact.136 However, the party that refers to the legal facts needs still to prove the presumed

basis – proof of the truthfulness of the claim regarding the existence of the grounds of

the presumption.137 However, the legal presumption may be challenged with evidence.

which comprises the main evidential document, that the opposite is true. The main piece



129 Decision of the Higher court Ljubljana, No. VSL Sodba II Cp 710/2009, 14.7.2009.

130 Decision of the Higher court Ljubljana, No. VSL sodba I Cp 3490/2013, 2.4.2014.

131 J. Zobec in L. Ude, N. Betetto, A. Galič, V. Rijavec op. cit., vol. 2, p. 370.

132 J. Juhart, op. cit., p. 353.

133 Ibidem.

134 J. Zobec in L. Ude, N. Betetto, A. Galič, V. Rijavec, op. cit., vol. 2, p. 371.

135 Ibidem.

136 J. Juhart, op. cit., p. 353.

137 T. Keresteš, Dokazno breme, Podjetje in delo, vol. 6-7/2012.





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37




of evidence differentiates from the counter-evidence and must provide the judge with

full belief that the counter claim is truthful.138



Legal presumptions must be distinguished from the probative value of a public

document. While with legal presumptions the main characteristic is the rule on the

probative value of indirect evidence, with a public document the characteristic is the

evidentiary rule on the probative value of the evidence as direct evidence.139



Generally known facts may not be subject to proving (par. 4 Art. 214 CPA).



3.3.4 Duty to Contest Specified Facts and Evidence



Each party must state the facts and adduce the evidence upon which the claims are

based or by which the party contests the facts stated and the evidence adduced by the

opposing party (Art. 212 CPA). The plaintiff’s statements and burden of proof are

separate from the statements and burden of proof of the defendant. The plaintiff must

prove the truthfulness of the claims and the defendant is obliged to proof the

truthfulness of the claims with which the party substantiates their objections or with

which the party wishes to disprove the truthfulness of the plaintiffs’ claims on the facts.

The prerequisite for the plaintiff to succeed is to state the facts which substantiate the

claim and that these facts have been proven. However, the defendant will succeed in the

litigation if the plaintiff is unable to bear the burden of proof or if the defendant has

claimed and proved the facts that the right which has been established by the plaintiffs

action, never existed.140 The plaintiff bears the burden of proof and the duty to state the

ultimate facts, which are necessary for the legal consequence from the plaintiff’s claim

to arise. According to the adversarial principle the parties must state all facts giving rise

to their cause of action and adduce evidence proving these facts (Art. 7 CPA). Parties

need to produce evidence in respect of all facts relevant for adjudicating the case in

dispute. The court is then competent to decide which evidence will be produced to

determine the ultimate facts (Art. 213 CPA). Sanctions for not contesting the facts or for

denying the facts without giving any reasons for doing so are deemed to have been

admitted, unless the purpose of the non-admittance arises from the other statements

made by the party. However, the party can prevent the effect of the alleged admittance

to the facts from the preceding paragraph by stating that they are not familiar with the

facts, but only if the facts relate to the actions of that party or their perception (par. 2

Art. 214 CPA).



3.3.5 Doctrine of iura novit curia



The court will grant the plaintiff’s claim only if the court establishes that a certain norm

is included in substantive law which refers to the facts found in the proceedings, a

consequence which was included and claimed by the plaintiffs in the claim. However,

the plaintiff is not obliged to state which norm foresees such a legal consequence as



138 J. Juhart, op. cit., p. 349.

139 J. Zobec in L. Ude, N. Betetto, A. Galič, V. Rijavec, op. cit., vol. 2, p. 373.

140 J. Zobec in L. Ude, N. Betetto, A. Galič, V. Rijavec, op. cit., vol. 2, p. 344.

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Part I


claimed by the claim. The legal qualification is not an essential component of the action

and even if the plaintiff states the legal basis from the substantive law, the court is not

bound to it. The court knows the law ex officio (iura novit curia). The court must

consider all legal bases for deciding if the claim is grounded or not. This doctrine

applies also to foreign law.141 According to the Slovenian Private International Law and

Procedure Act, the court shall establish ex officio the content of the foreign law that is

to be used. The court is authorised to request information on the foreign law from the

ministry responsible for justice, or obtain its content in another suitable manner. During

the procedure, however, the parties may submit a public or other document, issued by a

competent foreign body or institution, on the content of the foreign law. If it is not

possible to establish the content of a foreign law with regard to individual relations, then

the law of the Republic of Slovenia shall be used (Art. 12 ZMZPP).



3.3.6 The Duty of the Court in the Event of Incomplete Statements or Proposals

for Evidence



In the event of incomplete statements or proposals for evidence the court may before the

hearing or during the main hearing order the parties in writing, or orally at the hearing,

to answer particular questions about the circumstances which are significant for the

decision, to complete, or explain in greater detail, their previous statements, produce

additional evidence, submit documents that they have referred to, provide their opinion

about the expert opinion, or other evidence taken, submit written statements by

witnesses, provide their opinion about the opposing party’s statements, give them legal

views, or submit judicial decisions about the case law that they have referred to (par. 1

Art. 286.a CPA). The stated does not mean that the court is obligated to advise parties

but has the discretion to do so.



If the court has ordered the party in writing to provide their opinion about certain facts

in their written preparatory submission, or about which circumstances the statements of

facts, or if their evidence shall be completed, or to submit evidence in writing on which

they have based their motion, and the party fails to comply, such party may at the

opening hearing state such facts and produce such evidence on the condition only that

they were at no fault of their own unable to state them earlier, or that the court estimates

that their admission will not prolong the settlement of the dispute (par. 2 Art. 286 CPA).



After having received a statement of defence, preparatory submission, or after

conducting a hearing, the court may set a term for the parties within which they can

submit the next preparatory submission.



If the party submits statements and additional documents or evidence proposal on the

basis of the court order after expiry of the term set by the court, may only be considered

if without any fault of the party they could not be submitted earlier, or if the court

estimates that their admission will not prolong the settlement of the dispute (par. 6 Art.

286.a CPA).



141 A. Galič in L. Ude, N. Betetto, A. Galič, V. Rijavec, op. cit., vol. 1, p. 136.





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If a party submits to the court extensive documentary evidence, the court has the right to

order the party to submit within a fixed term a summary in writing of the most

significant statements and information in the attached documents and to indicate the

page numbers on which the statements or information are located in the submitted

documents. If the party fails to follow the court's instructions, the evidence shall be

deemed to have been withdrawn (Art. 226 CPA).



However, on the basis of material procedural guidance, the court may ask questions and

in another appropriate manner ensure that all ultimate facts are stated during the

hearing, that incomplete statements concerning important facts are supplemented, that

means of evidence relating to the parties’ statements are adduced or supplemented, and

that all necessary explanations are given in order to establish the facts and legal relation

in dispute (Art. 285 CPA). The concept of material guidance should enable the court to

establish the disputed actual situation as completely and accurately as possible. Material

guidance authorises the judge to encourage the parties to state the ultimate facts.142

Which facts are relevant and which must be stated depends on the substantive law

provision which will be used to decide the disputed case. It may happen that the party

does not state a certain ultimate fact because the party does not know that the

substantiality of the claim depends on it. The court may encourage the party with

questions to state the missing facts. It may also happen that the party states some facts

that are important when using a certain substantive rule to decide, but the court uses

another substantive rule for which other facts must be stated, but the party was not

aware of this. Namely, the court is obliged to test the stated facts from the point view of

all substantive norms which might be applicable. If the stated actual state is incomplete,

the court must warn the parties about the various possible legal qualifications and

motivate them to complete the facts, so the judgement would not come as a surprise for

parties (judgment by surprise).143



Regarding the submission of additional evidence, the court is authorised to summon the

parties before or during the main haring to submit additional evidence, documents, their

statements on the expert opinion, or a written statement of witnesses (par. 1 Art. 286.a

CPA). The court sets the proper term for submitting this evidence. Evidence submitted

after expiry of the term set by the court shall only be considered if without any fault of

the party they could not be submitted earlier, or if the court estimates that their

admission will not prolong the settlement of the dispute.



The facts stated and evidence adduced contrary to the stated rules are to be considered

(par. 6 Art. 286 CPA).



3.3.7 Collecting Evidence ex officio



The adversarial principle is the general procedural principle. The general exception

from adversarial principle determines that the court may decide to establish the facts

which the parties have not stated and produce the evidence which they have not adduced



142 A. Galič, D. Wedam Lukić in L. Ude, N. Betetto, A. Galič, V. Rijavec, op. cit., vol. 1, p. 71.

143 Ibid, p. 74.

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Part I


when the course of the main hearing and taking evidence shows that the parties intend

to perform dispositive acts which they are not entitled to perform (against the

mandatory rules or morality – par. 3 Art. 3 CPA), but may not found its judgment upon

the facts on which the parties have been denied the opportunity to be heard. The second

exception is included in the area of disputes deriving from family matters. For purposes

of protection of rights and interests of children and other persons who are not capable to

protect their rights and interests by themselves, the court may also establish facts which

the parties have not stated and collect other data required for its decision (par. 3 Art. 408

CPA).



The parties are allowed to submit new evidence also at later sessions of the main

hearing, but only if at the first session of main hearing they were prevented from

presenting them by reasons beyond their control (par. 4 Art. 286 CPA). In the appeal

new facts and evidence may be presented only if the appellant proves presumptively

that for reasons beyond their control they have been unable to present them by the first

hearing session or until the conclusion of the main hearing, or if conditions stated in

Article 286 of the CPA are fulfilled (Art. 337 CPA). However the parties are not

allowed to present new facts and evidence at the appellate main hearing.



3.3.8 Ordering Persons Other than Parties to Submit Evidence



Persons other than parties may be ordered to submit documents only if such obligation

is imposed on them by the law, or if the contents of a document to be submitted relates

both to such person and to the party adducing it as evidence. Third person has a right to

give a statement on this matter, prior to passing of a court decision ordering a third

person to deliver a document (Art. 228 CPA).



If a third person denies the obligation to produce the document, the decision as to such

obligation shall be given by the civil court. In this case the court may produce evidence

to determine the truth of this assertion. This represent special proceeding which may

result in issuing the court decision, ordering the third person to deliver document, which

is an enforcement title. In this procedure the party needs to prove that the third person is

in possession of such a document and that this person is obliged to deliver it. Third

person has a right to file an appeal against court decision. The final decision may be

enforced according the provision of Slovenian Law on enforcement and security (Zakon

o izvršbi in zavarovanju) only if the decision has become executable and the due date

for volunteer submission of the document has expired.



3.4

Written Evidence



3.4.1 The Concept of a Document in Slovenian Legal System



In theory144, document represents any object on which thought is expressed with human

writing. Document is any object with written expression, whereby it is irrelevant what



144 L. Ude, Civilno procesno pravo, Uradni list, Ljubljana, 2002, p. 265. Juhart, Civilno procesno

pravo FLRJ, p. 369; L. Rosenberg, K. H. Schwab, P. Gottwald, Zivilprozessrecht, 16. edition, C.





Part I


41




the material substrate of document is and out of what means it is composed from.

Significant characteristic, which is the same for electronic and real document, is the

human expression, while the difference is in specificity of the carrier for the writing.145



The plain term document refers not only to paper forms, but also to drawings,

photographs, phone records, graphs, etc.



3.4.1.1 Video or Audio Recording as a Type of Evidence



Depending on what facts need to be proven the electronic evidence can fall into

different categories of evidence. Furthermore, in connection with electronic devices

which produce images and voices and which record these data through technology146 the

question of classification under specific type of evidence arises. Unlike paper

documents whose contents are readily apparent, electronic video/audio recordings rely

on some other mechanical device to reproduce the data that is held within them. With

video recorded evidence it is the image and sounds that are produced when the video is

played in court that are the evidence admitted to prove what is video or audio recorded.

Does the evidence in the form of video or audio recording have the same characteristics

of a document or electronic document? If we originate from the definition of documents

which represents the human expression, carried on a specific carrier for the writing, the

video or sound recording when comparing to electronic document should be treated as

document. The carrier for video recordings contains information of any description

recorded and can be presented before the court. However the admissibility of such

evidence will be assets on the basis of the fundamental principles of civil procedure and

Slovenian legal order.



In cases where it is debatable whether the document is an authentic document, the court

often recourse to experts. Threats to the reliability of electronic document, mean that

more complex or unusual forms of data require more elaborate knowledge and impose

more obstacles for the court to establish the authenticity and integrity of the proposed

evidence. A party may also have a hard time proving that information found on the

Internet (e.g. via Facebook, Twitter, etc.) is the truth. The theory emphasizes that parties

seeking to introduce information from the Internet would do well to provide evidence

establishing the credibility of the website from which the information is drawn,

particularly if the source is a government site that carries an official imprimatur147.148



H. Beck, p. 814. Documents can be divided into public and foreign, discretionary (with the direct

relationship established, modified, terminated) and documentaries (instrument made solely for

evidentiary purposes – e.g. Extract from the land register), classical and electronic. – See J. Zobec

in L. Ude, A. Galič (ed.). op. cit., vol. 2, p. 417-418.

145 J. Zobec in L. Ude, A. Galič (ed.). op. cit., vol. 2, p. 419.

146 Law reform Commission, Consultation paper: Documentary and electronic evidence, 2009:

http://www.lawreform.ie/_fileupload/consultation%20papers/cpDocumentaryandElectronicEvide

nce.pdf.

147 Timothy J. Chorvat, E-Discovery and Electronic Evidence in the Courtroom, A Primer for

Business Lawyers, Volume 17, Number 1, September/October 2007.

148 So the important question is also to what extant can the internet be used as a source of

information and consequently evidence used in proceedings? In connection to that question the

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Procedural principles and provision of CPA do not include specific provisions on

procedure that specifically regulates types, collection and presentation of electronic

evidence. Rather the use of analogy to the provisions of traditional evidence needs to be

applied. The criteria for admitting electronic evidence and assuming that an electronic

document reflects the truth are based on the judge’s free evaluation of evidence.149



3.4.1.2 Electronic Evidence



Electronically stored information differs from the traditional notion of a document. One

definition is that they include metadata150, system data151, deleted data, and legacy

data152.153 The categories of electronic document must reflect dynamic forms of

communication and exchanging information between individuals, like emails, text

messages, chat room communications, digital photographs, website content, including

social media postings, computer-generated data, and computer-stored records.

Compared to paper form documents electronic documents last longer and are easily

changed; they contain information about the document itself.



According to CPA (Art. 16.a) the electronic form is equivalent to written form if the

data in electronic form are suitable for processing, attainable154, and appropriate for

reuse155. In a broader sense the form is regarded as electronic if the data are contained in

an electronic document or record.156



For the evidential value of electronic documents, according to the CPA the same rules

apply for evidence as for ordinary, written, and public documents (par. 1 Art. 224



main problem is also in the question if all the information found on internet regarded as public

knowledge?

149 The Slovenian CPA also does not acknowledge “the doctrine of the fruit of the poisoned tree”

in civil proceedings.

150 Metadata provide information about electronic resources and are indispensable for their

localization. The term was introduced by the evolution of electronic sources and they help with

the identification of data, as well as their description and localization. A. Kavčič-Čolić,

Metapodatki za trajno ohranjanje elektronskih virov, Knjižnica 54(2010), vol. 1-2, p. 99-119.

151 System data include records on data connected to the performance of computer tasks, like

which websites a user has visited, which password has been used, documents printed, etc. S. M.

Curreri, Defining Document in the Digital Landscape of Electronic Discovery, Loyola of Los

Angeles Law Review, vol. 38/2005, p. 1544.

152 Legacy data are stored information which are no longer in use. Ibidem.

153 Ibidem, p. 1543-1544.

154 The courts must be equipped and have technical possibilities for electronic commerce for

enabling electronic applications. The courts must have proper software for processing of the

applications and for readability of data. V. Rijavec in L. Ude (ed), A. Galič (ed), op. cit., vol. 4,

Ljubljana, 2010, p. 25.

155 Data in electronic form should remain unchanged. For the reuse of electronic form the

document needs to be resistible also for longer period of time, its accessibility and immutability

must be assured. Ibidem, p. 25.

156 Ibidem, p. 23.





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43




CPA).157 The data contained in electronic form may not be declined from evidential

value only because it is in electronic form (par. 1 Art. 16.a CPA).



An essential basis for the evidential value of electronic documents is Electronic

Commerce and Electronic Signature Act Electronic (ZEPEP158), which prohibits any

discrimination regarding electronic form and specifies that data in electronic form must

not be denied validity or evidentiary value simply because they are in electronic form

(Art. 4 ZEPEP). The condition for equal treatment is that the data in electronic form are

accessible and suitable for future use. The most important division of documents is

public and private. The CPA defines only the first category, while private documents

are all those that are not public.



If the document is issued in written or electronic form by a state authority within the

limits of its powers, or if a document is issued by a local government, company, or and

any other organization or individual authorised to exercise public authority, the law

establishes the truth of what is confirmed in them. This presumption may be annulled if

it is proven that the facts stated in a public document are false or the document itself is

not correctly drafted.



Given the increasingly widespread trend and the use of electronic commerce in the light

of evidence relevant to proving the facts, the microfilm or electronic copy of the

document or the reproduction of copies are equal to that document in physical form (a

public document). This of course is only provided if the microfilm or electronic copy or

reproduction of copies is issued by a competent state body, local authority, or public

authority powers (e.g. electronic land registers extract).159



An important issue connected to electronic documentation is whether the law allows the

electronic document to be used as evidence and in what category of electronic evidence

should different electronic documents (e-mail, word-processing document, spreadsheet,

etc.) be assigned to160.



Firstly, we must stress that the law must continue to accommodate the traditional notion

of a document as anything that is written and capable of being evidence, since such

documents will continue to be relevant to court proceedings for the foreseeable future.



157 Contrary, Rüßmann argues that electronic documents with declarations in electronic form lack

the necessary embodiment of the written expression and as such electronic documents used as a

form of evidence are not subject to the rules on documentary evidence, but to the rules governing

inspection. H. Rüßmann, Electronic documents. Security and Authenticy in M. Kengyel and Z.

Nemessányi, Electronic Technology and Civil Procedure: New Paths to Justice from Around the

World. Ius Gentium:Comparative Perspectives on Law and Justice: vol. 15 [Springer, Dorndrecht,

Heidelberg, New York and London, 2012, XV, p. 249-250.

158 Zakon o elektronskem poslovanju in elektronskem podpisu (Official Gazette of the RS, No.

98/04 – official consolidated text, 61/06 – ZEPT, 46/14)

159 Compare Rechberger, Simotta, Gottwald, op. cit., p. 353.

160 H. Rüßmann, Electronic documents. Security and Authenticy in M. Kengyel and Z.

Nemessányi, Electronic Technology and Civil Procedure: New Paths to Justice from Around the

World, p. 248.

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Part I


But this concept must be updated and accommodated to electronically generated

information capable of being presented in a permanent form. The main problem is to

overcome the problems between electronically produced documents capable of being

admitted as evidence in legal proceedings and physical evidence.



Digital evidence is defined by161 as “any information of probative value that is either

stored or transmitted in a digital form”. This includes files stored on hard drives, digital

video, digital audio, network packets transmitted over local area network, etc.

Compared to written evidence digital evidence has a special characteristic, namely the

type of information and method of their storage are connected to electronic carriers

(software or hardware), may be subject to changes or recovery, and are considered as

scientific evidence, requiring specific knowledge.162



Therefore, submitting evidence by a microfilm, electronic copy of a document, or by

reproduction of such a copy shall be regarded as equivalent to submitting evidence in a

physical document, or an electronic copy or reproduction thereof which has been issued

by the competent state authority, self-managing local community, or body exercising

public powers. So, the photographs, photocopies, video records, disks, magnetic tapes,

and other similar means are considered physical evidence, as long as they were not

obtained by violating the law or moral custom. As with the physical document,

microfilm or electronic copies or reproductions of these copies can also be proven to

differ from the original document.



Electronic documents are admissible as evidence under Slovenian law. The definition of

document, as mentioned, is that documents are any object on which thought is

expressed with human writing. Electronic document would therefore seem to fall under

documentary evidence. There are some opinions that in cases where specialist

knowledge is required to establish the authenticity of electronic documents the rules on

expert evidence apply.163 In a study on the admissibility of electronic evidence in

court164 conducted in 16 countries165 three terms were primarily analyzed, namely

evidence, electronic evidence, and admissibility of electronic evidence by reviewing

national legislations. In all countries the results of the analysis of the legislation show



161 C. Morgan Whitcomb, Historical Perspective of Digital Evidence: A forensic Scientists View,

International Journal of Digital Evidence, vol. 1, Issue 1, 2002; available at: www.ijde.org.

162 B. Zhang, H. Chen, Applications and Trends of Digital/Electronic Evidence in Chinese

Litigation in M. Kengyel, Z. Nemessanyi, Electronic Technology and Civil Porcedure, Spinger,

2012, p. 305.

163 Rüßmann states that electronic declarations of intent lack the necessary embodiment of written

expression thoughts. H. Rüßmann, Electronic documents. Security and Authenticy in M. Kengyel

and Z. Nemessányi, Electronic Technology and Civil Procedure: New Paths to Justice from

Around the World, p. 250.

164 The main objective of the project was to answer the following questions: What is electronic

evidence? Is electronic evidence regulation in Europe? European Commission, Cybex: The

admissibility of electronic evidence in court, available at: https://www.itu.int/osg/csd/

cybersecurity/WSIS/3rd_meeting_docs/contributions/libro_aeec_en.pdf.

165 Germany, Austria, Belgium, Denmark, Spain, Finland, France, Greece, Holland, Ireland, Italy,

Luxemburg, Portugal, United Kingdom, Romania and Sweden.





Part I


45




that electronic evidence is equivalent to traditional evidence. Especially regarding

electronic documents compared to paper documents most countries166 give attribute the

same value to electronic evidence as documentary evidence. Moreover, the majority

also deem it to be equivalent to documentary evidence. The study also showed that none

of the participating countries define in their legislation what exactly electronic evidence

is.167



3.4.1.3 Electronic Signatures



According to the ZEPEP a signature shall not be denied legal effectiveness or

admissibility as evidence solely on the grounds of its electronic form or not being based

on a qualified certificate or a certificate issued by an accredited certification service

provider or not being created by a secure signature creation device (Art. 14 ZEPEP).



An advanced electronic signature, verified with qualified certificate, is equivalent to an

autographic signature in relation to data in electronic form, and therefore has equal legal

effectiveness and admissibility as evidence (Art. 15 ZEPEP).



Those who store documents which are electronically signed with the use of signature

creation data and signature creation devices shall store complementary signature

verification data and signature verification devices for as long as the documents are

stored (Art. 16 ZEPEP).



The use of signature creation data or signature creation devices without the knowledge

of the signatory or the holder of a certificate which refers to these data or devices is

prohibited (Art. 17 ZEPEP).



3.4.5 Different Categories of Documents



The most important division of documents is public and private. The CPA defines only

first category, while private are all those who are not public.



If the document is issued in written or electronic form by a state authority within the

limits of its powers, or a document is issued by a local government, company and any

other organization or individual authorized to exercise public authority, the law

establishes the truth of what is confirmed therein. This presumption may be annulled if

it is proven that the facts stated in a public document are false or the document itself is

not correctly drafted.



Private documents, as long as they are signed by the author and certified by a notary,

provide full proof that the statement they contain were made by the author and are

consequently recognized as authentic documents. To certify electronic private document

the notary confirms that the party has in their presence signed the document with

advanced electronic signature or that the party has recognized the signature which is



166 Germany, Belgium, Spain, Finland, France, Ireland, Italy, Luxemburg, Portugal, Romania.

167 Ibidem.

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Part I


already on a document as their own. After the authenticity of the qualified certificate is

verified, the notary adds the certification to the electronic document with an indication

as to how the identity and validity of electronic signature was determined, the reference

number of the register, and the date. The certification and the document are then jointly

signed with advance electronic signature by the notary (Art. 64 of the Notary Act168).



The legal presumption is that all public documents are true and that the participants –

both the parties and the Court – rely on them in the process. In cases where there is

doubt as to the authenticity of the documents proving the reality of what is to be

certified, the Court is also authorized ex officio to make a declaration of authority from

which the document originated.



If a party disputes the authenticity of the document, the burden of proving its

authenticity or inauthenticity is not borne by the disputed party, who relies on the

document to establish the facts from which it exercises its rights, but by the opposing

party.169



In such a case, it can be shown that the public document is not properly assembled, as it

relates to the assumption that it is not issued by an authority which is marked as its

issuer, or that its contents are not true.



If it is a public document that provides something (e.g. a final judgment or order of the

court), it is not possible to doubt its content. Such a public document can be challenged

in civil proceedings. Such a document is thus challenged by the extraordinary legal

remedies provided for in the proceedings in which the decision was taken.



Facts contained in a public document and correctness of its composition may be subject

to contestation. If the court has doubts over the authenticity of a public document, it

may require the body purported that issued it to produce a statement thereon (Art. 224

CPA).



CPA expressly states that the documents that are based on specific provisions regarding

the probative force equal to public documents have the same probative value as a public

document (e.g., return of service, a medical certificate170).171



3.4.6 Taking of Written Evidence



Which evidence will be taken is decided by the court with the court decree. However,

the court is bound to that evidence that was proposed by the parties themselves. The

court decides according to the immediacy principle which written evidence will be

examined and consequently read.



168 Zakon o notariatu, Official Gazette of the RS, No. 2/07 – official consolidated text, 33/07 –

ZSReg-B, 45/08, 91/13.

169 Juhart, Civilno procesno pravo FLRJ, p. 371.

170 Compare Reichold v Thomas/Putzo, ZPO, p. 479.

171 Zobec in Ude et al., Pravdni postopek, 2nd book, p. 420.





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The CPA contains special provisions on the third party’s duty to submit the written

evidence. Persons other than the parties may be ordered to submit documents only if

such obligation is imposed on them by law, or if the contents of a document to be

submitted relate both to such a person and to the party adducing it as evidence. The

third party has the right to give a statement on this matter, prior to the passing of a court

decision ordering a third party to deliver a document (Art. 228 CPA).



Documents that must be enclosed with the application may be in the original or in copy.

According to the CPA, a copy of a document, in accordance with the law that regulates

the protection of documentary material, is defined as captured and stored microfilm or

electronic (scanned) copy, reproduction of this copy or a certified copy, and also

ordinary copy or microfilm, electronic (scanned) copy, photocopy or reproduction of

copies (Art. 107 CPA). If the enclosed document is a copy, the court may, upon the

request of the opposite party, invite the party to deliver the original document in order to

be examined by the opposite party.



The CPA does not include formal rules which would determine that the photocopy of

the document has no probative value but the principle of free evaluation of evidence

applies.172



3.5

Witnesses



Only those persons who are capable of giving data relevant to the facts to be established

may be examined as witnesses. If the person is in fact incapable of being a witness, such

a person is not able to perceive and to testify about what they have perceived.173 The

court must examine the person to decide whether they are capable of being a witness.

This means that the court may allow children or mentally or physically disabled persons

to testify if they are able to give information about the disputed facts.174



Whoever is summoned as a witness has a duty to comply with the court summons, and

must testify, unless otherwise stipulated by the law (Art. 229 CPA). If the witness does

not respond to the court order for participating in the evidence taking procedure, the

court is authorised to use coercive measure to assure that the witness will appear at the

main hearing.



A party who proposed a certain person as a witness must state the facts on which such

person should testify, including their name, address, and occupation (Art. 236 CPA).

This witness is summoned by a writ of summons indicating name and surname,

occupation, the time and place of the main hearing, the matter in respect of which the

witness is summoned, and the fact that the person is being summoned as witnesses. The

summons shall also provide a warning on the consequences of an unjustified failure to

appear (Art. 241 CPA), as well as the right of refunding of costs (Art. 242 CPA).



172 Decision of the Higher Court Maribor, No. Sodba II Ips 244/2012, 27.2.2014 (in connection

with the decision of Higher Hourt Maribor, No. I Cp 1752/2011).

173 Idem, p. 440.

174 Ibidem.

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Part I


If, by giving a testimony, a person might violate the duty to keep an official or military

secret, such person may not be examined as a witness as long as the competent authority

releases them from such duty (Art. 230 CPA). This means that such a person is legally

incapable of being a witness. The court must pay observe this duty ex officio and such a

person may not testify in any event, even if this person is willing to testify as a

witness.175 Nevertheless, such a person must appear in court anyway. If the court

examines such a person as a witness, this violation would not influence the correctness

of the judgement, but the legality of the judgement.176



The privilege against self-incrimination is foreseen for witnesses who may refuse to

answer a particular question for justified reasons. A justified reason may be a basis

especially if by answering the witness might expose themselves, their relatives, or their

spouse or domestic partner, regardless of whether the marriage has terminated or not, or

the guardian or person under guardianship, or adopter or adoptee, to a serious disgrace,

considerable financial loss, or criminal proceedings (Art. 233 CPA). A witness shall be

instructed by the presiding judge on their right to refuse to answer the asked question.



The witness may refuse to testify and give evidence:

1) on what the party has confessed to them as their attorney;

2) on what the party or other person has confessed to them as their confessor;

3) on facts of which they have learnt as a lawyer or a doctor or in pursuit of other

activity, if they are bound to protect the secrecy of what they learned in the practice

of legal or medical profession or pursuing such other activity (Art. 231 CPA).



The stated persons must respond to the court’s summons and must be present at the

hearing, but are instructed by the judge on their right to refuse testimony. The privileged

witnesses have the right to decide whether to testify or not. However, such a witness

needs to prove with probability those facts which substantiate the right of refusal to

testify.177 The justifiability of reasons to withhold testimony or answers to particular

questions is determined by the court before which the witness should testify. If

necessary, the parties shall be heard before that (Art. 235 CPA).



3.5.1 Secrets (e.g. Business, State, Military, etc.) and Taking of Evidence



The CPA contains provisions which seek to protect certain secrets and enable the parties

and the witness to exercise their right to refuse to answer to certain questions (Art. 230

et seq. CPA). A witness may refuse to testify regarding facts learnt as a lawyer or a

doctor or in pursuit of other activity, if they are bound to protect the secrecy of what

they learn in the practice of legal or medical profession or pursuing such other activity.

(point 3 par. 1 Art. 231 CPA). These rules shall apply mutatis mutandis to the

examination of parties as evidence (Art. 263 CPA). The right of the parties to refuse the

submission of documents is included in a special provision. This provision applies only

to documents to which they did not refer themselves (par. 3 Art. 227 CPA), and in such



175 J. Zobec in L. Ude, N. Betetto, A. Galič, V. Rijavec, op. cit., vol. 2, p. 443.

176 Ibidem.

177 J. Zobec in L. Ude, N. Betetto, A. Galič, V. Rijavec, op. cit., vol. 2, p. 446.





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cases Articles 231 to 234 of the CPA apply mutatis mutandis. In any case, the witness,

the party, or the holder of the document itself must expressly refer to the existence of

such reasons and also (in this context) to explain them. This is their right (cf. par. 1 Art.

231 CPA: “A witness may refuse to testify ...”) and it is not the duty of the court to pay

attention to the possible existence of secrets, as it is the parties' right.



The CPA contains only one provision for dealing with classified information (state,

military), namely, if, by giving a testimony, a person might violate their duty to keep an

official or military secret, they may not be examined as a witness as long as the

competent authority exempts them from such duty.



Another applicable regulation for judicial proceedings that are ongoing in conformity

with the mentioned CPA is the Classified Information Act (Zakon o tajnih podatkih –

ZTP178). However, the stated act is not suited to the nature of these judicial proceedings.

It is thereby not possible for an independent and unbiased court to decide on all the

important issues regarding the classified information therein.



Under the provisions of this ZTP, a piece of information may be defined as classified if

it is so important that its disclosure to unauthorised persons could or might obviously

prejudice the security of the country or its political or economic interests, and is related

to public security, defence, foreign affairs, the intelligence and security activities of the

government agencies of the Republic of Slovenia, systems, appliances, projects, and

plans of importance to the public security, defence, foreign affairs and intelligence and

security activities of government agencies of the Republic of Slovenia, scientific,

research, technological, economic and financial affairs of importance to the public

security, defence, foreign affairs and intelligence and security activities of government

agencies of the Republic of Slovenia (Art. 5 ZTP). Officials and employees of these

bodies are bound to safeguard classified information no matter how such information

has come to their knowledge (Art. 6 ZTP).



Classified information may, in view of the possible adverse effects its disclosure to an

unauthorised person might have on the security of the country or its political or

economic interests, be given one of the following levels of classification:

- The “top secret” classification is applied to classified information whose disclosure

to unauthorised persons would put in jeopardy or do irreparable damage to the vital

interests of the Republic of Slovenia;

- The “secret” is applied to classified information whose disclosure of which to

unauthorised persons could seriously harm the security or interests of the Republic

of Slovenia;

- The “confidential” classification shall be applied to classified information whose

disclosure to unauthorised persons could harm the security or interests of the

Republic of Slovenia;



178 Official Gazette of the RS, No. 50/06 – official consolidated text, 9/10, 60/11.

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- The “restricted” classification shall be applied to classified information whose

disclosure to unauthorised persons could harm the activity or performance of tasks

of a body or agency (Art. 13. ZTP).



Due to the applicability of the ZTP also in civil procedures, it is possible that a situation

could arise in which a court’s assessment of the necessity and the manner of taking a

certain item of evidence or of a party’s cooperation during the taking of such must yield

to the assessment of the head of the authority that marked the information as classified.

The head of the authority can decide that it will not allow parties to judicial proceedings

to access classified information or that it will allow such under restrictive conditions

which it imposes itself. Namely, according to the ZTP, classified information may be

transmitted to other bodies, including courts, which must act according to the provisions

of ZTP, only on the basis of written permission from the director of the body that

designated the information as classified, or where so provided by law (Art. 34 ZTP). If

the court is granted permission and receives classified information from the competent

body, it is not authorised to transmit that information to other users without the consent

of the body, except in cases defined by regulations (Art. 36 ZTP). This means that the

court is not authorised to give such classified information to lawyers in litigations

without the permission of the body that identified this information as confidential.



Regarding the stated problems, the Constitutional court of RS has determined that “the

omission of a special statutory regulation for judicial proceedings in which in order to

achieve a correct and legal decision in a dispute it is necessary, in any manner, to

uncover, deal with, or manipulate classified information renders it impossible that an

independent and unbiased court decide on all the important issues of the proceedings,

especially on ensuring the right of the parties to make a statement (Article 22 of the

Constitution)”. Such an unlawful gap entails a hollowing out of the human right

determined by paragraph 1 of Article 23 of the Constitution and is inconsistent

therewith”.179



CPA does not contain a special regulation for dealing with official, government,

security, or similar secrets. Therefore, the provisions of ZTP apply. The court in civil

proceedings has basically no competence to render a final decision regarding which

evidence will be taken and in what way. Furthermore, the court may not allow the

parties to participate in procedural acts, serve them the claims and applications of the

opposing party or let them inspect the file, if the parties have not been granted

permission to access classified information by the authorised representative of the body

that gave such a definition. This permission is given according to the discretion of the

body.180 The ZPT lets the head of the body exercise this right and, at the request of

competent authorities, relieves a person of the obligation of keeping secret such

information that has been defined as classified by this agency, however, solely for the

purpose and to the extent specified in the request of the competent authority (par. 2 Art.

33 ZTP).



179 Constitutional court of RS, No. U-I-134/10, 24.10.2014.

180 M. Šetinc Tekavc, Neskladje ZPP z Ustavo zaradi odsotnosti posebne ureditve za

obravnavanje tajnih podatkov, Pravna praksa, No. 1/2014, p. 9.





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51




The Constitutional Court has rendered the declaratory decision, according to which the

court has ordered the lawmaker to remove the declared illegality in a determined period

of time. Nevertheless, the Constitutional Court has offered a temporary solution until

the new provisions are prepared and enforced, according to which the court, on the

grounds of a careful evaluation of the interests, may decide how the parties to the

litigation shall be acquainted with classified information.



3.5.1.1 The Question of Declaring Information as a Business Secret



Company may declare certain information as a business secret. This includes

information designated as such by a company's written decision. This decision must be

communicated to the Company Members, employees, members of the company's

governing bodies, and other persons obligated to keep the business secret. Irrespective

of whether it is covered in the company's written decision, any data whose disclosure to

an unauthorised person would clearly cause substantial damage may also be deemed to

be a business secret. The members, employees, members of the company’s management

bodies, and other persons may be liable for any disclosure of a business secret, if they

knew or should have known that the data was of such a nature (Art. 39 of the Company

Law Act – ZGD-1181).



In a written decision the company must determine the method of protecting business

secrets and the responsibility of persons obliged to protect business secrets (Art. 40

ZGD-1). If, by giving a testimony, a person might violate their duty to keep official or

military secret, they may not be examined as a witness as long as the competent

authority releases him from such duty.



However, the theory182 is on the position that business secrets are not covered with the

rules on privileged witnessed but the business secret is only protected with the

possibility of excluding the public from the main hearing. Those attending the hearing

of the case from which the public is excluded have the obligation of keeping secret the

information learned at the trial. Betrayal of secret may lead to criminal offence of

violation of confidentiality of the proceeding.



If a company is a holder of a concession, public service is granted to a private entity. If

certain facts or means from such a company’s activities relate to public security,

provisions of the ZTP will apply. In cases where the information is classified as a

business secret according to ZGD-1, the method of protecting business secrets and the

responsibility of persons obliged to protect business secrets is determined in the written

decisions of such a company.





181 Zakon o gospodarskih družbah (ZGD-1), Official Gazette of the RS, no 65/09 – official

consolidated text, 33/11, 91/11, 32/12, 57/12, 44/13 – odl. US, 82/13.

182 V. Bergant-Rakočevič, Varstvo uradne, vojaške in poslovne tajnosti v civilnem sodnem

postopku, Podjetje in delo, 2011, vol. 6-7.

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3.5.1.2 State Secrets and the Question of Testifying by a State Official



If the state official claims that the facts are defined as a state secret, the provisions of

ZTP apply. Because the CPA does not regulate the procedure in examples where there

is a question of dealing with state secrets as classified information, the court in civil

proceedings basically has no competence for rendering a final decision about which

evidence will be taken and in what way. Furthermore, the court may not allow the

parties to participate in procedural acts, serve them the claims and applications of the

opposing party, or let them o inspect the file if parties have not been granted permission

to access classified information by the authorised representative of the body that gave

such a definition. The ZPT enables the head of the body to exercises this right and, at

the request of competent authorities, relieves a person of the obligation to keep secret

that information that has been defined as classified in this agency, however, solely for

the purpose and to the extent specified in the competent authority’s request. Such

regulations may cause a situation when the court’s evaluation regarding the necessity

and the method of taking evidence must be relegated to the discretion of the head of the

body which has defined the information as classified. In the procedure for evaluating the

constitutionality of the CPA, the Constitutional Court decided that the CPA is in

conflict with the Constitution in this aspect. Until a lawmaker offers a legitimate regime

for handling confidential information, the Constitutional Court has offered a temporary

solution, according to which the court, on the grounds of careful evaluation of the

interests (between access to justice principle and the duty to protect the secret), may

decide how the parties to the litigation will be acquainted with classified information.



3.5.2 Priviledge Witnesess



3.5.2.1 A Case of a Journalist as a Witness



According to the Slovenian Media Act (Zakon o medijih – ZMed183) editorial personnel,

journalists and the authors/creators of articles may not be obliged to reveal the sources

of their information, except in cases where such is stipulated by criminal legislation

(par. 2 Art. 21 ZMed). Privileged witnesses are those who have the right to refuse to

testify. Such privileged witness bare the decision if the confidentiality of the

relationship or professional secret should be kept or the party’s right to judicial

protection should have priority. According to Article 231 of the CPA a witness may

refuse to testify on facts they have learnt in pursuit of other activity if they are bound to

protect the secrecy of what they learn in the practice of professional activity. The stated

persons shall be instructed by the presiding judge on their right to refuse to testify.



Because these examples illustrate the witness’ right to take advantage of these privileges

or not, the unjustified disclosure of a professional does not constitute a violation of

procedural rules and the court may base its decision on such a testimony.184 The witness

who violates the duty to protect a professional secret may be held responsible for

violating professional ethics, responsible for damages, and even criminally responsible.



183 Official Gazette of the RS, No. 110/06 – official consolidate text, 47/12.

184 J. Zobec in L. Ude, N. Betetto, A. Galič, V. Rijavec, et al., op. cit., vol. 2, p. 446.





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Privileged witnesses have the right to decide whether to testify or not. However, such a

witness must prove with probability those facts which substantiate the privilege of

refusing to testify.185 The justifiability of reasons for withholding testimony or answers

to particular questions is determined by the court before which the witness must testify.

If necessary, the hearing of the parties (first of all the party that proposed such a

witness) shall be conducted before that (Art. 235 CPA). If the court establishes that the

witness has the right to refuse to testify, the court may not take any other evidence

which would result in either benefit or damage to the party who proposed such a

witness. This witness represents the only evidence in relation to ultimate facts, and the

court may decide according to the burden of proof rules.186



If the court decides that the witness unjustifiably refuses to testify, the witness is

ordered to testify. In this case the witness may challenge the decree by means of appeal

against the decree on the fine or detention imposed on them for refusing to testify or

answer a particular question (par. 2 Art. 235 CPA). If the court decides in favor of the

witness, the parties have no special appeal against the decree. The parties may challenge

such a decree only in their appeal against the final decision. But the party needs to prove

the causal link between the unlawful decree and the final result of the trial and

decision.187



A witness may not refuse to testify on the grounds of protection of a professional secret

if the disclosure of certain facts is to the benefit of the public interest or some other

person, provided that such benefit outweighs the damage caused by disclosure of the

secret (Art. 232 CPA).



3.5.2.2 A Case of a Priest as a Witness



A witness may refuse testimony on what the party or other person has confessed to them

as such party’s priest (point 2 par. 1 Art. 231 CPA). The priest may be bound by

professional secrecy, but the relationship between the priest and the person is not always

counted as one of professional secrecy. A witness may not refuse to testify on the

grounds of protection of a professional secret if the disclosure of certain facts is to the

benefit of the public or some other person, provided that such benefit outweighs the

damage caused by disclosure of the secret (Art. 232 CPA). If the witness refuses to

testify, the court is competent to estimate if the protection of public interest or the

interest of someone else is more important than the protection of the secret. The court

may decide to examine the parties before making a decision.



There is also the possibility of excluding the public from the main hearing and the

present persons are bound to protect secrecy.





185 J. Zobec in L. Ude, N. Betetto, A. Galič, V. Rijavec, op. cit., vol. 2, p. 446.

186 Ibidem.

187 Idem, p. 456.

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3.5.2.3

A Case of a Medical Doctor a Witness



The basis for the protection of professional secrecy is the confidentiality of the

relationship between the doctor and patient. The doctor must protect the professional

secret for the sake of the confidentiality of the relationship with the patent and for the

protection of the right to the patient’s privacy. According to the CPA, a witness may

refuse testimony on facts which they have learnt as a doctor. A witness may not refuse

to testify on the grounds of protection of a professional secret if the disclosure of certain

facts is to the benefit of the public or some other person, provided that such benefit

outweighs the damage caused by disclosure of the secret (Art. 232 CPA). If the witness

refuses to testify, the court is competent to estimate if the protection of public interest or

the interest of someone else is more important than the protection of the secret. The

court may decide to examine the parties before making a decision.



3.5.2.4 A Case of an Attorney as a Witness



The relationship between the party and attorney is in principle of a confidential nature.

The attorney may refuse testimony on what the party has confessed to them as the

party’s attorney (point 1 par. 1 Art. 231 CPA). This relationship is not always one of

professional secrecy.



If the relationship overlaps with professional duty, the attorney may not refuse to testify

on the grounds of protection of a professional secret if the disclosure of certain facts is

to the benefit of the public or some other person, provided that such benefit outweighs

the damage caused by disclosure of the secret (Art. 232 CPA).



Other professions that may refuse to give testimony on the grounds of privilege are:

notaries, mediators, tax advisors, detectives, psychologists, etc.



3.5.3 Obtaining Evidence from Witnesses



The judge firstly warns the witness on the duty to tell the truth and that they may not

keep anything a secret, as well as on the consequences of perjury. Then the judge lets

the witness to freely explain what they know about the subject matter. Afterwards, the

judge asks questions helping to evaluate a witness’s credibility and to clarify

uncertainties. When the witness has stated everything about the disputed facts that is of

the judges’ interest, the judge allow the parties and their representatives to ask

questions. The parties may not ask leading questions.



The parties have the right to submit, by order or consent of the court, to written and

signed statements by the witnesses called about the facts on which the witnesses could

testify to at the hearing.



If the court orders a party to submit a written statement by a witness for whom the party

has made a motion to be heard and the party fails to comply with such order, the

evidence by hearing of the witness shall only be taken provided the party proves it as





Part I


55




probable that they have tried to obtain a written statement by the witness but have failed

to do so. The parties may agree in the course of the proceedings to exchange written

statements by witnesses. The court shall also have the right to order the persons called

as witnesses directly to make written statements, or to answer certain questions, in

particular in case the court assesses, on the basis of the contents of the questions, or of

the person of the witness called, that such a statement will suffice. Upon any such order,

the court shall point out that the persons may be called as witnesses even if they make a

written statement.



The court has the right to decide that only a written statement by a witness acquired

pursuant to the preceding paragraphs shall be read instead of the witness being heard in

court. However, the witness shall be heard if either of the parties requests it (Art. 236.a

CPA).



There are no limits to the facts witness can testify about.



A witness who gives false statement before the court shall be sentenced to

imprisonment for not more than three years (Art. 284 of the Criminal Code of

Slovenia).



The principle of free evaluation of evidence is a general procedural principle. There are

no formal rules for evaluating the parties’ testimony, but only the methodology on how

to evaluate the evidence.



Slovenian CPA does not enable the cross examination. The procedure is conducted by

the judge, who has the power to ask the questions the witnesses. The parties my ask

questions only after the judge has finished with the examination and by the permission

of the judge.



3.6

Taking of Evidence



The court has the power to decide which evidence will be produced for determination of

the ultimate facts (Art. 213 CPA). However, the decision is limited only to such

evidence proposed by the parties. There is no mandatory sequence in which evidence

must be taken in Slovenian civil procedure.



According to the adversarial principle, parties must submit the procedural material.



The documents adduced as evidence to support their statements as evidence must be

submitted to the court by the parties. However, a document which is kept with a

government body or other statutory authority and which is inaccessible to a party may

be provided by the court ex officio (par. 3 Art. 226 CPA). Persons other than the parties

may also be ordered by the court to submit documents, but only if such an obligation is

imposed on them by the statute, or if a document’s contents to be submitted relate both

to such person and to the party adducing it as evidence (Art. 228 CPA).



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Furthermore, a party may provide or be ordered by the court to provide witness

statements (Art. 236.a CPA).



Witnesses are invited by a writ of summons indicating: their name and surname, their

occupation, the time and place of appearance, the matter in respect of which they are

summoned, and the fact that they are being summoned as witnesses. Those witnesses

who are prevented from complying with the summons due to their age, sickness or

grave physical handicaps may be examined at the place of their residence. (Art. 237

CPA).



An expert witness must be proposed as evidence upon order, for the court to decide to

take such evidence. The court decides on whether the expert is to give the findings and

the opinion orally at the hearing, or in writing prior to the hearing. The court also

determines a time period within which the expert findings and the expert opinion must

be produced. The court must allow the parties to familiarize themselves with the expert

findings and the opinion in writing before the hearing at which such findings and

opinions are to be produced (Art. 253 CPA). Only the court has the power to decide

which expert (among court experts, expert institutions) will be granted the competence

to prepare the opinion (Art. 244 CPA).



The court summons the expert witness by a writ of summons indicating their name and

surname, their occupation, the time and place of appearance, the matter in respect of

which they are summoned, and the fact that they are being summoned as witnesses (Art.

250 CPA).



Prior to the commencement of expert examination, the expert is asked to carefully

examine the matter in question, to state accurately everything they notice and discover,

and to produce their opinion conscientiously and pursuant to the rules of the profession

(Art. 251 CPA). The court has the power to take evidence with the expert witness, to

show the expert the object to be examined, pose questions of them, and, when

necessary, require additional explanations regarding their findings and opinion.



Under the Slovenian CPA parties can assert new facts and evidence until and including

the first session of the main hearing, on later hearings the parties are allowed to present

new facts and evidence only if they were prevented by reason beyond their control (Art.

286 CPA).



At later hearing sessions, the parties are allowed to present new facts and new evidence

only if at the first session of the hearing they were prevented from doing so by reasons

beyond their control (par. 4 Art. 286 CPA).



The court may set time-limits for parties to offer new evidence or documents that they

have been referring to before or at the main hearing, as well as to give statements on

expert opinions and submit written witness statements before or during the main hearing

(par. 1 Art. 286.a CPA). If the party fails to comply with the time limits set by the court,

new submissions filed after this time limits would be admissible only if the party states





Part I


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such facts and produce such evidence at the first season of main hearing, provided that

the party was unable to state them earlier at no fault of their own, or that the court

estimates that their admission will not prolong the settlement of the dispute (par. 2 Art.

286 CPA). Otherwise, the court shall not consider evidence which was not submitted

according to these rules. The court order contains instructions regarding the time limits

for submitting the preliminary written submissions, additional explanations, written

opinions of expert witness and the subject matter of the opinion (or relevant questions

which the expert witness needs to answer), etc. The court orders the production of

evidence by passing of a decree indicating the disputed facts to be proved and the means

of evidence by which they are to be proved. The evidence decree presents the court’s

plan regarding which direction it will investigate the factual grounds and which

substantive norms will be used.188 The court presents and adopts the decree at the main

hearing. The decree is per se an act of procedural guidance. Therefore, in the further

course of proceedings, the court is not be bound by an evidentiary decree it has passed

beforehand (par. 3 Art. 287 CPA).



If it is expected that the production of specific pieces of evidence will be impossible or

hindered at a later stage, such evidence may be moved to be produced during or before

the litigation. According to the CPA the motion to secure evidence may be filed even

after the decision by which the proceedings are completed has become finally binding,

if this is necessary for the proceeding’s extraordinary judicial review (Art. 264 CPA). In

the application to secure the evidence the party must state the facts to be proved, the

evidence to be produced, and the reasons for which the production of evidence at a later

stage is expected not to be possible or to be hindered (Art. 266 CPA). The application is

then served on the opponent. However, when delaying would be dangerous, the court

may decide upon the party’s proposal even without hearing the opponent thereon. In

emergency cases, the court may decide that the production of evidence should

commence even if the opponent has not yet been served the decree granting the motion

to secure evidence (Art. 267 CPA).



3.6.1 Rejection of an Application to Obtain Evidence



If the court establishes that the evidence which a party has adduced is without relevance

to the determination of the dispute, it shall pass a decree on and state the grounds for the

dismissal thereof (par. 2 Art. 287 CPA).



The reasons for rejection are especially189:

- If the evidence proposal is not substantiated;

- If the evidence proposal relates to facts proposed to be proven which are not legally

relevant;

- If evidence proposal relates to the facts which are not the object of evidence taking

(presumptions),or facts for which the prohibition of the evidentiary subject applies;

- If the party is already precluded to submit evidence or the evidence proposal was not

submitted on time;



188 N. Betetto in L. Ude, N. Betetto, A. Galič, V. Rijavec, op. cit., vol. 2, p. 609.

189 Idem, p. 611.

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Part I


- If the prohibition of the use of certain means of evidence applies (state secrets);

- If the facts are already proved;

- If the evidence are inappropriate for the establishing the ultimate facts.



There is a principled duty for the court to take the proposed evidence. If justified

reasons exist, the court is authorised not to take proposed evidence. The decree with

which the court rejects the evidence taking must be explained.



Parties must adduce evidence required to establish the truth of their statements, no later

than at the opening hearing session. At later sessions of the main hearing, the parties are

allowed to present new facts and new evidence only if at the first opening session they

were prevented from doing so by reasons beyond their control.



The parties must identify the witness and give a description of the facts for proposed

evidence to be taken.



Regarding the principle of immediacy the evidence must be taken before the trial judge.

However, for justified reasons the court may decide that specific pieces of evidence

should be produced before the presiding judge or before the judge of a requested court

(requested judge). In such an event, the record on production of evidence must be read

at the main hearing (Art. 217 CPA).



In civil procedures the civil court is not bound by the actual findings from the criminal

procedure. The factual circumstances must be established according to the rules of civil

procedure. If the civil court in the course of taking evidence examines the criminal file

or if the court, according to the party’s proposal, performs the evidence based on the

reading of certain records on the testimony of the witnesses and experts from other

procedures, the evidence is subject of free evaluation of civil court.190



In cases when deciding on the identical factual state (Art. 14 CPA) as the criminal court

the civil court is bound on the established existence of criminal offence and criminal

liability. The duty of the civil court to rely on the judgment of the criminal court with an

identical factual state means that the civil court is bound by the findings of those facts,

which were crucial in the criminal procedure for deciding that the criminal offence and

criminal liability existed. Furthermore, the civil judgment may not include findings

about the civil liability opposing the findings which made the grounds for the delivery

of the judgment of conviction. The civil court is not authorized to find the facts if they

simultaneously form the grounds for deciding on civil liability differently in such a way

that the civil court decision would be in contradiction to the criminal judgment. The

civil court is only bound by the criminal judgment of conviction (not on acquittal)

regarding the existence of criminal offence and criminal liability when deciding in

matters regarding damages. The defendant may not raise the objection that the action

was not illegal and that there is no causal link between the action and the damage that

arose. The civil court may only decide facts on the extent of the damage and decides in



190 Decision of Higher court Maribor, Sklep II Ips 302/99, 27.1.2000.





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the objection of the defendant on the divided liability between the plaintiff and

defendant.191.



3.6.2 The Hearing



The main principles that apply to the main hearing are: the orality principle, the

principle of directness, adversarial principle, the principle that the parties are in

principle liable for presenting procedural material, the principle of public hearing, the

principle of fairness, and the principle of prohibition of misuse of rights.



The principle of immediacy means that the judgement should be rendered by the judge

who presided over the trial and was personally present during the taking of evidence.

This principle is included in Art. 4 of the CPA together with principle of orality and

principle of public hearing. The court shall decide upon the claim on the basis of an

immediate consideration of the case.



This principle is especially relevant in connection with free assessment of evidence,

provided that the judge may freely assesses the evidence only if they are actually

present at the time of taking evidence.192



However, for justified reasons the court may decide that specific means of evidence

may be produced before the presiding judge (if the panel is competent to decide) or

before the judge of a requested court (requested judge). In such event, the record on the

taking of evidence shall be read at the main hearing at the requesting court. In the event

that the requested judge is taking evidence, the request from the requesting judge must

state the description of the stage of litigation and must specifically state the

circumstances to which special attention should be paid upon the production of evidence

(par. 1 and 2 Art. 217 CPA).



In the course of taking evidence, the requested judge has the same powers and duties as

are vested in the requesting judge with respect to the taking of evidence at the main

hearing (par. 4 Art. 217 CPA).



The requested judge, entrusted with the taking of a specific mean of evidence, may also

take other evidence when they consider it fit and proper (Art. 218 CPA).



The reasons to take evidence before a requested judge are mainly in economy, if the

document is damaged during transport, if property must be inspected, or the witness

must be examined on the spot or when the witness’s arrival is wrought with

disproportionate difficulties.193



The decree rendered about the end of the hearing is a procedural decree, by which the

court is not bound. The court may decide that the main hearing must be reopened in



191 Higher court decision Celje, No. VSC sodba Cp 1311/2006, 22.08.2007.

192 L. Ude in L. Ude, N. Betetto, A. Galič, op. cit., vol. 1, p. 48.

193 J. Zobec in L. Ude, N. Betetto, A. Galič, V. Rijavec, et. al., op. cit., vol. 2, p. 402.

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order to complete the procedure or to clarify certain important questions (Art. 292

CPA). Therefore the evidence may be taken when the main hearing is reopened. The

court will reopen the main hearing ex officio or according to the proposal of the parties

on which the court is not bound.



There are no rules in Slovenian Civil Procedure Act on the order for taking of different

types of evidence. This decision is up to the judge.



3.6.2.1 Presence and Participation of the Parties



According to the principle of audiatur et altera pars, the court’s duty is to allow each

party to the litigation the opportunity of being heard regarding the opposing party's

claims and assertions (Art. 5 CPA). The parties are not obliged to be present at the

taking of evidence. The CPA foresees the sanctions if the party is not present at the

main hearing. If neither of the parties appears at the settlement hearing or the first

session of the main hearing, if the settlement hearing has not been held, the action shall

be deemed to have been withdrawn by the plaintiff. If both parties fail to appear at a

subsequent session of the main hearing, the court may decide on the basis of the file,

provided the hearing at which evidence was taken has been held and the facts

sufficiently clarified (judgment on the basis of the file). The court shall decide in the

same manner if one of the parties fails to appear at the hearing and the opposing party

makes a motion for decision on the basis of the file (Art. 282 CPA).



3.6.2.2 Direct and Indirect Evidence



Slovenian doctrine distinguishes between direct and indirect evidence. The subject of

direct evidence is a legal sign of the factual state, for example handing over and

accepting the object in the depository.194 The direct evidence helps establish legally

relevant facts, which combine to provide an account of the factual state.195 With indirect

or circumstantial evidence first the facts that are unfamiliar to the factual state are

proved; these then form the basis for making a conclusion on the facts that represent a

fundamental sign of the factual state.196 The indirect evidence indicates the existence or

nonexistence of legally relevant facts, but is not per se an element of the factual state.



The CPA does not make a distinction between direct and indirect evidence. According

to the principle of free assessment of evidence all evidence is evaluated thoroughly

without giving any pre-determined weight to any particular piece of evidence.



Nevertheless, if the evidence is taken without any intermediaries, it is considered direct.

Witness or expert testimony given by video constitutes indirect evidence.





194 J. Juhart, op. cit., p. 350.

195 L. Ude, Civilno procesno pravo, Uradni list, 2002, p. 255.

196 J. Juhart, op. cit., p. 350.





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3.6.2.3 Technology Used for Collecting Live Testimonies



The amending act of the CPA (ZPP-D197) inter alia introduced the possibility of using

videoconferences in civil proceedings (Art. 114a CPA). The law contains only one

provision regarding the use of videoconferences for main hearings and relates also to

examination of parties, witnesses and experts.



With consent of the parties the court shall have the right to permit them and their

counsels to be at another place at the time of the hearing and to conduct procedural acts

there, provided that an audio and visual transmission has been provided from the site of

the hearing to the place(s) where the party (parties) and their counsels are located, and

vice-versa (video conference).



In the event that the court decides that a hearing will be held via a video conferencing

system, it shall issue a decision against which there is no appeal. This is an option and

not an obligation for the courts.



The court may decide to take extraterritorial summons (invitation to a witness living

abroad to appear before the court or to deliver a certain document from abroad) for

taking evidence abroad. This means that such a measure may be taken if the court that is

deciding on the subject matter conducts all activities from the home state. However, the

court may not use coercive measures for taking evidence abroad. Our legal doctrine198 is

of the opinion that there are no barriers for extraterritorial summons for submitting

evidence on the grounds that the Slovenian CPA does not differentiate evidence

according to the criteria of where said evidence is located.



In relation to using the videoconference from the side of the domestic court to take

evidence in hearing a witness, party, or expert located abroad, this means that the

cooperation of the domestic court spreads to the territory of foreign country. This is

allowed only with the cooperation of the court where the witness is located and in

accordance with the rules of Regulation 1206/2001.



3.6.3 Witnesses



According to the Slovenian CPA, a witness is summoned by the court on the ground

that the parties have proposed the taking of evidence with witnesses in a timely manner.

A party calling a certain person as a witness shall state the facts on which such person

should testify, as well as their name, address, and occupation (Art. 236 CPA). The writ

of summons prepared by the court should indicate: the witness’s name and surname,

occupation, time and place of appearance, the matter about which the witness is being

summoned, as well as the fact that they are being summoned as witnesses. The

summons shall also state a warning as to the consequences of unjustified non-

appearance, and the right to refunding of costs (Art. 237 CPA).



197 Official Gazette of the RS, No. 45/2008.

198 N. Betetto in A. Galič, N. Betetto, Evropsko civilno procesno pravo, GV založba, 2011,

Ljubljana, p. 66.

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The witness must respond orally (Art. 238 CPA). However, the parties have the right to

submit to the court, by order or consent thereof, written and signed statements by the

witnesses called about the facts on which they could testify at the hearing. If the court

orders a party to submit a written statement by a witness for which said party has made

a motion to be heard and the party fails to comply with such order, the evidence by

hearing of the witness shall only be taken, provided the party proves it as probable that

they have tried to obtain a written statement by the witness but have failed to do so.



The parties may also agree in the course of the proceedings to exchange written

statements by witnesses.



Furthermore, the court also has the right to order those persons called as witnesses

directly to make written statements, or to answer certain questions, in particular if the

court assesses, on the basis of the contents of the questions or of the person of the

witness called, that such a statement will suffice. Upon any such order, the court shall

point out that the persons may be called as witnesses even if they make a written

statement.



In cases when the court decides on or enables written statements from the witness, the

statements are read instead of the witness being heard in court. However, the witness

must be heard if either of the parties requests it. (Art. 236.a CPA)



Witnesses are examined separately and in the absence of other witnesses who are

examined subsequently (Art. 238 CPA).



A witness does not have to take an oath before giving the evidence.



The parties are not allowed to prepare the witness before the hearing. The court instructs

the witness of their duty to tell the truth and not to withhold anything, whereupon they

shall be warned of the consequences of perjury. Thereafter, the witness is asked about

their name and surname, their father’s name, occupation, place of birth, age, and their

relationship to the parties (Art. 238 CPA).



After general questions stated by the court, the witness is ordered to tell everything

known to them in respect of the facts on which they are testifying. Thereupon, the court

may ask questions to check, complete, and clarify their testimony. Witnesses shall not

be asked leading questions. The court is in power to always ask the witness to tell the

source of their knowledge of the fact about which the witness has testified. Witnesses

may be confronted when their testimonies differ with respect to important facts (Art.

239 CPA).



3.6.3.1 Expert Witnesses



The court examines an expert witness when expert knowledge is required for the

purposes of determining or clarifying a certain fact in dispute. The party must submit

the proposal for taking evidence with an expert witness stating the evidentiary topic.





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But the decision regarding whether evidence from an expert witness is necessary is

determined by the court. The court decides whether to allow such an evidence or not

with procedural decree. The court leads the taking of expert witness evidence, marks the

object to be examined by the expert, states the questions, and, when necessary, requires

additional explanations regarding the findings and opinion (par. 1 Art. 252 CPA).



An expert may be given explanations and may be allowed to inspect files. Upon their

motion, additional evidence may be produced in accordance with to establish the

circumstances important for him to prepare the opinion (par. 2 Art. 252 CPA).



Expert witnesses are appointed by the court, which means that the court has the power

to decide whom it will select from among the experts for a certain scientific area. Prior

to the appointment of an expert, the court shall give the parties the opportunity to be

heard thereon. The court may at all times decide to appoint a new expert in place of the

one currently appointed (Art. 244 CPA).



As a rule, expert testimony shall be taken by a single expert; if, however, the court

assesses that expert examination is complex, two or more experts may be appointed to

the case. Experts are mainly appointed among court experts in the concerned profession.

Expert examinations may also be entrusted to scientific institutions (hospitals, chemical

laboratories, universities, etc.) (Art. 245 CPA).



The expert witness has a lot in common with the witness. Namely, the expert needs to

be capable to give information on the subject matter, has a duty to respond to the

invitation for the examination and to state the findings and the opinion, they may be

issued a with monetary fine in the event of unjustifiable absence at the hearing, and also

has the right to claim costs. Taking expert testimonies in certain stages is also similar to

the taking of evidence with the witness, with the main difference in the subject of the

examination. While the witness is being questioned on certain facts that came to the

witness’s knowledge outside the process, the object of examining an expert witness is to

gain professional knowledge which is not available to the court. This includes abstract

rules of science, the profession, and special experience, and only indirectly particular

facts. The stated is the reason that the expert witness may be changed but the witness

may not.199



Prior to the commencement of the taking of evidence with an expert witness, the expert

is asked to examine carefully the matter in question, to state accurately everything they

notice and discover, and to produce an opinion conscientiously and pursuant to the rules

of science and art. The expert in practice produces written opinions, so already in the

decree the court usually determines the task. The result is grouped into findings (which

are the result of careful examination of the subject matter) and opinion. Oral hearings

with expert witnesses are held only when the court evaluates that the hearing is

necessary or when the parties demand such. The judge has the duty to give the expert



199 J. Zobec in L. Ude, N. Betetto, A. Galič, V. Rijavec, et. al., op. cit., vol. 2, p. 472-473.

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witness questions (included already in the decree) needing to be examined by the expert

witness which are as precise as possible.200



The court decides on whether the expert is to give the findings and the opinion orally at

the hearing, or in writing prior to the hearing. The court must specify a time period

within which the expert findings and the expert opinion must be produced (par. 1 Art.

253 CPA).



Whenever possible, the court shall serve on the parties the findings and the opinion in

writing before the hearing in which such findings and opinions are to be produced. The

parties have the right to give remarks on the opinion, to demand further explanations,

and to propose that the expert witness should be orally examined.



The party may propose that the court appoint a different expert witness, but it is in the

power of the judge to decide whether to grant such a proposal or not.



If several experts are appointed to the case, they may produce common findings and a

common opinion if they agree thereupon. If their findings and opinions do not accord,

each of them shall give their own findings and their own opinion. If the data contained

in the expert findings do not accord in essential points, or if the findings or one or more

experts are ambiguous, incomplete, self-contradictory, or in contradiction with the facts

examined, and if such shortcomings cannot be done away with by a re-examination of

the experts, a new expert examination shall be conducted by the same or by different

experts. If the opinion of one or several experts contains contradictions or other

shortcomings, or if a reasonable doubt arises as to accuracy of their opinions, and if

such shortcomings or doubt cannot be removed by a re-examination of experts, other

experts’ opinion must be produced. (Art. 254 CPA)



An expert witness has the right to be refunded for travel costs, costs of food, and

accommodation for the loss of earnings, as well as to be paid effective costs incurred in

the expert examination and award for the same. The party proposing the taking of

evidence with an expert witness must pay in advance for all the expenses before the

court appoints the expert witness by decree (par. 1 Art. 153 CPA). If the party fails to

do so, the court will drop the taking of such evidence (par. 2 Art. 153 CPA).



Private opinions are academic or professional work from a particular area of the

expertise prepared by the expert upon the order of the party on substantive and

procedural issues. Such opinions may be submitted to the court. However, these

opinions are not regarded as expert opinions but merely as a part of the parties’

arguments.201 If the opinion is prepared according to party’s order before the procedure

started and the opposing party objects to the opinion, the court will consider such an

opinion as a part of a party’s arguments and not as an evidence. Such an expert who

prepared an opinion is not regarded as an expert acting as a court assistant but is a



200 Ibid, p. 493.

201 V. Rijavec, Dokaz z izvedenci, Podjetje in delo, 2012, vol. 6-7.





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helper to the party, and consequently the provisions of CPA for expert witness do not

apply.



The court is not bound by the content of the expert opinion. Namely, the findings and

expert opinion are subject to the free assessment of evidence, which means that the

judge will form their own opinion about whether the claims are truthful or not.202



3.7

Costs and Language



3.7.1 Costs



The CPA does not state accurately which cost are considered to be the costs of the

proceedings, but only descriptively defines according to their origin that the cost of the

proceedings include those expenses incurred during or due to the litigation (Art. 151

CPA).



The expenses that appear during the civil procedure are: expenses for taking evidence,

for court fees, for procedural actions outside the court building, for travel expenses, and

expenses for the loss of income, expenses in relation to the service provided by the

natural person who serves the documents as a registered activity. The costs of the

proceedings shall also consist of fees of lawyers and other persons foreseen by the law

(translators, expert witnesses, etc.).



Expenses which appear due to the proceedings include material costs (photocopies and

postal expenses), expenses for securing evidence, expenses for trying to agree on a court

settlement, expenses that were caused to the party in obtaining private opinions or for

detective services, etc.203



Each party must advance the payment for costs incurred by procedural acts performed

or caused to be performed by them (Art. 152 CPA). The stated means that the party

must assure payment for the taking of evidence.



The party proposing the taking of certain evidence must pay in advance, upon a court

order, the amount necessary to cover the costs which are envisaged to be incurred in the

production of such evidence.



If both parties propose the taking of the same evidence, the court orders them to

advance the necessary payment in equal amounts.



If the amount necessary for the taking of evidence is not paid in the specified time

period, such evidence will not be produced. In that case the court assess, on the basis of

an opinion formed with respect to all circumstances, the relevance of the fact that the

party has failed to advance payment for the costs in due time.





202 J. Juhart. op. cit., p. 390.

203 N. Betetto in L. Ude, N. Betetto, A. Galič, V. Rijavec, et al., vol. 2, p. 24-25.

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The CPA includes the rules upon which the court finally decides who bears the

expenses of the procedure. As a general rule, the criteria of success are foreseen. The

party losing the litigation must refund the costs incurred by the winning party (Art. 154

CPA).



There are additional rules for deciding the costs in the case of the party’s partial success

of the party in Art. 154 CPA. Namely, if one party wins the litigation only in part, the

court may decide, with respect to the outcome of the litigation, that each party is to

cover their own costs of the proceedings, or may, considering the circumstances of the

case, order one party to refund the other party and their intervener for an appropriate

amount of the costs. The court may decide that one party refund the total costs incurred

by the opposing party if the latter fails to succeed only in respect of a relatively small

part of their claim and when no extra expenses are due to that particular part of claim.



When the court decides ex officio to take evidence to ascertain facts (because the parties

were trying to dispose with their claims against mandatory or moral rules) and the

parties fail to make the prescribed advance payment, the costs envisaged for the

production of such evidence shall be advanced by the court from its funds.



With respect to the success of the taking of evidence, the court shall decide on whether

the costs will be paid by one of the parties, by both of them, or by the court from its

funds (par. 4 Art. 154 CPA).



The compensation for appearance of a witness before a court includes travel costs, costs

of food, accommodation and costs for the loss of the income. The witness in obliged to

claim the refund immediately after having been examined, or else the witness loses this

right. However, the court is bound to advise the witness thereof. The court decides on

the costs for witness with the decree with which the court orders that a witness be

refunded the determined sum from the funds advanced by the parties. If such advanced

payment has not been deposited, the court orders a party to refund the witness within

eight days (Art. 242 CPA).



Specific amounts for compensation of the costs for witnesses, experts and translators are

specified in Rules for reimbursement of civil procedure-related costs204



The travel costs of witnesses, experts, or translators include costs for public transport

(train, bus, ship, airplane) or mileage for private transport. These costs include the

expenditures for traveling from the permanent or temporary residence to the location

where the hearing will take place. The costs are reimbursed for the shortest possible

route and with the most economic means of transportation. The travel costs are

reimbursed in the amount of actual expenditure. For high-speed trains, the costs will be

reimbursed only if the person travelled more than 100 km in one direction.





204 Pravilnik o povrnitvi stroškov v pravdnem postopku (Official Gazette of the RS, No. 15/03,

32/13).





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Witnesses, experts, or translators have the right to reimbursement for costs of food and

accommodation if the person must stay outside of their permanent or temporary

residence for more than 12 hours due to the invitation (Art. 10 of the Rules). These

costs are decided by the court, which calculates them according to the bill or in another

appropriate manner, but the costs may not exceed more than is provided for by the

official amounts of the reimbursement of costs for the officers in the public sector (Art.

11 of the Rules).



Employees have the right to ask for reimbursement of salary compensation for absence

from work for the reason of being a witness, expert, or interpreter. The same applies

also for individual entrepreneurs and natural persons who pursue an activity or service

as a profession (Art. 12 of the Rules).



Employees are paid with salary compensation by companies, institutions, and

administrative and other state bodies where the witness, expert witness, or interpreter is

employed, which in turn may require reimbursement of compensation to be paid for

salaries from the court (Art. 13 of the Rules).



Loss of income of individual entrepreneurs and natural persons who pursue an activity

or service as a profession is calculated upon free assessment, considering the person’s

lost time and the profession, who has the right to reimbursement and it is paid by the

court (Art. 14 of the Rules).



The expert witness’s remuneration for services provided is assessed according to special

rules (Rules on court experts205), which determine the amount and the method for

assessing the amount of remuneration. Besides the reimbursement of costs for travel,

food and accommodation, the expert witness may request also for the reimbursement of

material costs for analysis, measurements, investigations and other tasks needed to

produce findings and opinion or valuation (Art. 45 of the Rules on court experts). The

expert witness must submit at least one offer from a company that performs such a

service, so the material costs could be calculated.



Rules on court experts include the rates upon which the remuneration is calculated.



To study the file the expert witness may request for:

1) up to 50 pages, 46 euros

2) 50 to 200 pages, 92 euros

3) 200 to 500 pages, 138 euros

4) 500 to 1000 pages, 230 euros

5) 1000 to 2000 pages 460 euros

For every additional 1,000 pages of study file beside the amount mentioned the expert

may request an additional 350 euros.





205 Pravilnik o sodnih izvedencih in sodnih cenilcih (Official Gazette of the RS, No. 88/10, 1/12,

35/13).

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For the collection and study of additional documents, expert witnesses may request:

1) up to 100 pages, 46 euros

2) 100 to 200 pages, 92 euros

3) 200 to 300 pages, 138 euros

4) 300 to 600 pages 230 euros



For inspections or visits, the expert witness may request:

1) up to 1 hour, 46 euros

2) 1 to 3 hours, 92 euros

3) up to 5 hours, 138 euros

4) over 5 hours, 230 euros



For the findings and the opinion submitted in written form, the expert witness may

requests:

1) less demanding, 184 euros

2) demanding, 276 euros

3) very demanding, 414 euros

4) extremely demanding, 459 euros



For the preparations for oral presentation of the findings and opinion, the expert witness

may requests:

1) less demanding, 92 euros

2) demanding, 138 euros

3) very demanding, 207 euros

4) extremely demanding 230 euros

The expert witness may request for each half an hour started the amount of 35 euros

when presenting the findings and opinion orally.



According to the Rules on court interpreters206, interpreters have the right to request

remuneration for their work.



To produce a written translation of the document, the interpreter may request for a

single page:

1) translation from a foreign language into Slovenian, 25 euros

2) translation from Slovenian into a foreign language, 37 euros

3) translation from a foreign language into a foreign language, 41 euros



One page comprises 1500 characters without spaces. For oral translation the interpreter

may request 35 euros for each half hour of the actual translation.





206 Pravilnik o sodnih tolmačih (Official Gazette of the RS, No. 88/10, 1/12, 35/13).





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3.7.1.1 Expenses Due to a Special Procedure or Technology Used in Accordance

with the Provisions of Regulation 1206/2001



Regulation (EC) No 1206/20011 provides that if a court in a Member State (requesting

court) asks the competent court of another Member State (requested court) to take

evidence – for example, by examining a witness – the latter court is to fulfill the request

in accordance with its national law. As regards the reimbursement of witness expenses

by the requesting court, the regulation provides that fulfilling a request to take evidence

is not to give rise to a claim for any reimbursement of taxes or costs.207 Therefore, the

requesting court can be obliged to provide reimbursement only if one of the exceptions

laid down in the regulation is applicable. If the requested court so requires, the

requesting court shall ensure the reimbursement without delay of:

- the fees paid to experts and interpreters;

- the costs incurred because of the request made by requesting court for the request to

be fulfilled in accordance with a special procedure provided for in the law of a

requesting court, or by the use of the means of communication technology (Art. 18

(2) Evidence Regulation).



A deposit or advance payment before executing the request may be asked by the

requested court only where an expert opinion is required. In all other cases, a deposit or

advance shall not be a condition for the execution of a request (Art. 18 (3) Evidence

Regulation). In the cases foreseen in Art. 18 (2) of the Evidence Regulation the parties’

duty to bear the fees or costs for the exception of the request is governed by the law of

the requesting court. The liability for reimbursement of costs for evidence taking is that

of the Member State where the court conducts the procedure and the creditor is the

Member State of the requested court. If the requesting court is a Slovenian court

Slovenian rules apply, according to which the party that makes a proposal for the

execution of evidence must pay advance payment by order of the court. This means that

the same Slovenian rules apply when the evidence is being taken by the rules of

Evidence Regulation.



3.7.2 Language and Translation



Civil proceedings are conducted in the official language of the court (Art. 6. CPA).

Slovenian courts operate in the Slovenian language. In the areas where Italian and

Hungarian minorities live the court proceedings may also be conducted in these two

official languages.



The Slovenian courts use professional court interpreters. Court interpreters are persons

appointed for an unlimited time with the right and duty to interpret at main hearings and

to interpret documents at the request of the court (par. 3 Art. 84 of the Courts Act208).

The court interpreter is appointed by the minister competent for justice for translation of



207 Judgment in Case C-283/09 Artur Weryński v Mediatel 4B spółka z o.o.

208 Zakon o sodiščih, Official Gazette of the RS, No. 94/07 – official consolidated text, 45/08,

96/09, 86/10 – ZJNepS, 33/11, 75/12 – ZSPDSLS-A, 63/13.

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the spoken and written word from or to a particular language and interpretation of

language and sign language.



Parties and other participants have the right to use their own language when

participating in oral procedural acts. If the proceedings are not conducted in the

language of a party or of other persons involved in the proceedings, they may be

afforded, upon a motion filed to this effect or when the court finds that they do not

understand the Slovenian language, oral translation of statements made at the hearing

and written translation of documents used as evidence.



The parties and other persons involved in the proceedings shall also be advised of their

right to attend the oral proceedings in their own language by way of an interpreter. They

may waive the right to translation by declaring that they understand the language in

which the proceedings are being conducted (Art. 102 CPA).



The parties and other persons involved in the proceedings must file actions, appeals, and

other pleadings in Slovenian or in the minority languages officially used by the court. If

a party files a pleading in a language which is not used officially by the court, the court

shall act in the same way as with incomplete pleadings (Art. 104 CPA). Upon ordering

the correction of the pleadings, the court must specify a time period in which to do so.

The court rejects the pleading if the party fails to correct it (par. 5 Art. 108 CPA).



According to Art. 226 of the CPA a document drawn up in a foreign language must be

enclosed with a certified translation of the original. If the parties fail to submit the

certified translation of the document the sanction would be that the court would not take

this evidence.



For the cost of translation each party must advance payment for costs incurred by

procedural acts performed or caused to be performed by them. The party losing the

litigation must refund the costs incurred by the winning party (Art. 154 CPA).



There is no provision that the interpreter is automatically appointed when the requested

court is taking evidence directly based on the Regulation. In these cases the laws of the

Member state of the requested court apply.



3.8

Unlawful Evidence



Nowadays, with modern technology making it easier to access information and data, it

is necessary to consider even more carefully the importance of the constitutionally

ensured right to privacy on one hand and the right to access to justice and fair trial on

the other. Regarding civil proceedings the question of inadmissibility of evidence will

appear in connection with certain means of gaining information that could be used later

in civil proceedings as evidence, as well as in connection with certain methods of taking

evidence.





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Illegally obtained evidence can be defined as evidence gained by a wide range of

irregularities ranging from criminal offences to methods which merely exclude fair play.



In other words, we are referring to cases where the litigants break the law or act

reprehensively in order to obtain evidence or background information which they hope

may help their case in some way. In practice two types of improperly obtained evidence

can be distinguished: The first is evidence technically discovered by unlawful behavior,

such as pictures, videos, or recordings taken in violation of privacy. This evidence

would not exist without the improper behavior of the party, since it was the only way of

creating such evidence. The second includes documents gained by theft or other civil

wrongs such as trespassing or theft. In these circumstances, the crime does not help to

create the evidence, which is already in existence, but improper behavior is employed to

procure these documents in order to produce them in court.



The question raised focuses on whether illegally obtained evidence implies procedural

inadmissibility in a civil court.



In Slovenian civil procedure the parties have obligations to collect and propose evidence

(the adversarial principle). But what if the party knowingly violates the rights of the

opposite party with the purpose of ensuring itself the opportunity to obtain an advantage

in evidentiary procedures and consequently to ensure itself success in litigation. The

party referring to the fact must also give evidence that this fact exists. The court decides

on the grounds of free assessment of evidence which evidence will be produced and

which facts will the court count as proven.



According to Article 212 of the CPA each party shall state the facts and adduce the

evidence upon which their claims are based and by means of which they contest the

facts stated and evidence adduced by the opposing party. 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

(par. 3 Art. 3209). According to Article 213 of the CPA the court shall decide which

evidence will be produced to determining the ultimate facts. The court may refuse to

admit the proposed evidence if it proves a fact which is not relevant to the case or if the

fact has already been proven or recognized by the opposite party, or if it is misused only

to delay the proceedings. The court does not decide upon discretion.210 The court is

obliged to explain each decision for not taking certain evidence in evidence taking

procedure.





209 The court shall not permit the parties to perform any dispositive act: 1. which is not in

conformity with mandatory norms, or 2. which is not in conformity with moral principles.

210 A. Galič, Ustavno civilno procesno pravo: ustvana procesna jamstva, ustavna pritožba – meje

preizkusa in postopek, GV Založba, Ljubljana, 2004, p. 288.

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The Slovenian legal system does not recognize evidentiary rules211 and consequently

according to the CPA evidence obtained in an unlawful or unconstitutional way is not

foreseen as inadmissible in civil litigation. However, the court shall obey the

methodological guidance for assessing evidence212 (Art. 8 CPA) and make a decision in

each individual case separately if the evidence is to be used or not. If the evidence

produced in respect of a particular fact does not induce a sufficient degree of persuasion

(Art. 8), the court’s conclusions on such fact shall be drawn pursuant to rules on the

burden of proof (Art. 215 CPA). This generally means that the court decides to the

detriment of the party who would benefit from the findings of such a fact. Therefore, the

party will usually endeavor to ensure the availability of data in its own favor, even if the

data are confidential.213



When the court decides whether to allow such evidence or not, it must consider which

of the constitutionally guaranteed rights has greater importance (the proportionality

principle). If we keep in mind the purpose of civil litigation, which is to provide a

resolution to a dispute in such a way that is acceptable for parties and society, we must

also consider the concept of privileges under CPA.



The Slovenian CPA does not include provisions on evidentiary prohibition or exclusion

similar to criminal law. There are no explicit rules on on the question if illegally

obtained evidence.



Legal theory214 speaks in favor of the position that in the event that two constitutionally

protected rights are in contradiction the court must consider which of the rights is

stronger and needs protection. If a court does not allow such evidence to be processed,

there could be a breach of adversarial principle, but if a court takes such evidence, this

could lead to human rights violations, such as a violation of a constitutionally protected

human right to protection of personal data and privacy.



The opinion of theory and jurisprudence is that in such cases the only solution is to use

the so-called proportionality test in such a way that the following is assessed:

- whether a restriction on the right has an legitimate purpose,

- whether it is necessary and appropriate to ensure this rights,

- whether protection of one right outweighs the loss of the other.215



We can argue that the unlawfulness of the gained evidence may be established in other

proceedings with all the consequences for the violator foreseen in these proceedings.



211 “ZPP does not recognize probative value of evidence and does not provide the exhaustive list

of means of evidence that may be used in proceedings. Evidence represents everything that

enables sensual perception”. Judgment of the Supreme Court RS, no 27/2000, 28.6.2000.

212 J. Zobec v L. Ude, N. Betetto, A. Galič, V. Rijavec, et al., op. cit., vol. 1, p. 91.

213 D. Wedam Lukić, Varstvo osebnih podatkov v civilnih sodnih postopkih, Podjetje in delo,

1996, vol. 5-6, p. 914-921.

214 J. Zobec in L. Ude, A. Galič (ed.), op. cit., vol. 2, p. 341-343.

215 The opinion of the Information Commissioner on the question of the illegaly obtained

evidence, no. 0712-2/2009/950.





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But this argument may also lead to situations when a party for the purpose of protecting

a certain right will no longer choose the means for their acquisition, since any evidence,

regardless of how it was obtained, would be just and admissible in civil proceedings.

The other extreme is the possibility that in civil proceedings such evidence is treated the

same as in criminal proceedings. But in civil proceedings we have two equal parties

whose rights are in conflict, therefore, a complete prohibition of such evidence in civil

proceedings cannot and should not be considered.



The exclusion of evidence is primarily the institution of criminal law.



The Slovenian civil procedure law does not regulate the possibility of excluding

evidence which is also connected to the opinion of the majority of legal doctrine is that

the list of evidence is not exclusive, because we cannot conclude from the numbering of

the evidence in CPA that other evidence is inadmissible.216 So, all evidence is

admissible if it does not contradict the fundamental principles of civil procedure and

Slovenian legal order. So the answers to mentioned questions should be sought within

civil and constitutional law, as well as on the basis of internationally guaranteed human

rights and fundamental freedoms.



There is no explicit legal provision on how to treat illegally obtained evidence. However

Slovenian legal theory and case law has developed certain rules in this matter. The legal

definition of illegally obtained evidence can only be found in criminal law but we

cannot rely and summarize exclusively from the solutions in criminal procedure.217



As already mentioned, our CPA does not include a provision which would be

comparable to the provision in the Criminal Procedure Act (Zakon o kazenskem

postopku, hereinafter ZKP), according to which the court may not base its decision on

evidence obtained in violation of constitutional human rights and fundamental

freedoms, as well as on the evidence obtained through a breach of the provisions of

criminal proceedings and for which the Criminal Procedure Act determines that a

judgment cannot rely on them, or which have been obtained on the basis of such

inadmissible evidence (Art. 18 ZKP). CPA also fails to set a numerus clausus of the

means of evidence.



In our opinion it is necessary to distinguish between evidence for which procedural law

determines that they are not permitted in a particular case (e.g. evidence by examination

of a privileged witness) and between evidence which was unlawfully gained if its

admission negatively influences the fairness of the trial. In the first example the main

question is which evidence are admissible, while in the second example the question

relates to the impact of their (un)admissibility.



The concept of privileges derives from their primary aim, which is to “protect certain

relationships and interests in the world outside the courtroom that are deemed of



216 J. Juhart, op. cit., p. 358.

217 A. Galič, Ustavno civilno procesno pravo: ustvana procesna jamstva, ustavna pritožba – meje

preizkusa in postopek, GV Založba, Ljubljana, 2004, p. 289.

74





Part I


sufficient importance to justify the costs imposed on the judicial process through the

loss of useful evidence”218. The privileges are foreseen to protect confidential

communications and relationships such as attorney-client, physician-patient, priest-

repentant, and matrimonial communication and to prevent interference with marital

relationships, such as marital testimonial privilege. Privileges to protect against

disclosure of specific types of information also exist.



CPA distinguishes between witnesses who are in fact incapable of being a witness and

those who are incapable because of legal obstacles.219 Only those persons may be

examined as witnesses who are able of giving data relevant as to facts to be established

(Par. 2 Art. 229 CPA). The court is competent to decide if the person is capable of

perceiving and consequently reporting on what they have perceived. Legally incapable

witnesses are obliged to keep official or military secrets and they may not be examined

as a witness as long as the competent authority releases them from such duty (Art. 230

CPA). The court should pay attention to this duty ex officio and should not allow such a

witness to be examined, even if such a person were to willingly offer to be examined as

a witness. If there is a violation of this duty and the court bases the judgment on such

evidence this would influence on the legality of the judgment. A violation of this

provision may constitute a relative violation of the procedure (par. 1 Art. 339 CPA).220



In contrast to those who cannot be a witness and those who may not be a witness,

privileged witnesses are those who have the right to refuse to testify. Such privileged

witnesses bear the decision if the confidentiality of the relationship or professional

secret were to be kept or the party’s right to judicial protection were to have priority.

According to Article 231 of CPA a witness may refuse testimony:

1) on what the party has confessed to them as their commissioner;

2) on what the party or other person has confessed to them as their confessor;

3) on facts of which they have learnt as a lawyer or a doctor or in pursuit of other

activity, if they are bound to protect the secrecy of what they learn in the practice of

a legal or medical profession or in pursuit of other such activity. The stated persons

shall be instructed by the presiding judge on their right to refuse to testify.



Because these examples represent the witness’s right to take advantage of these

privileges or not, unjustified disclosure of business secrets does not constitute a

violation of procedural rules and the court may base its decision on such a testimony.221



A witness may not refuse to testify on the grounds of protection of a business secret if

the disclosure of certain facts is to the benefit of the public or some other person,

provided that such benefit outweighs the damage caused by disclosure of the secret (Art.

232 CPA).





218 R. J. Allen, R. B. Kuhns, E. Swift, D. S. Schwartz, Evidence: Text, Problems and Cases-

Fourth edition; Aspen Publishers a Wolters Kluwer Business; New York, 2006, p. 787.

219 J. Zobec in L. Ude, N. Betetto, A. Galič, V. Rijavec, et al., op. cit., vol. 2, p. 442.

220 J. Zobec in L. Ude, N. Betetto, A. Galič, V. Rijavec, et al., op. cit., vol. 2, p. 443.

221 J. Zobec in L. Ude, N. Betetto, A. Galič, V. Rijavec, et al., op. cit., vol. 2, p. 446.





Part I


75




A witness may refuse to answer a particular question for justified reasons, especially if,

by answering, they might expose themselves, their relatives in a direct line, irrespective

of removals, or in a lateral line up to three removals, or their spouse or extra-marital

partner or an in-law up to two removals, regardless of whether the marriage has

terminated or not, or their guardian or person under guardianship, or adopter or adoptee,

to a serious disgrace, considerable financial loss, or criminal proceedings (Art. 233

CPA).



A witness shall be instructed by the presiding judge on their right to refuse to answer

the question posed. If this duty of the court is not respected, this would constitute an

essential breach of the procedural provisions. But the question is if the party may

challenge this breach with an appeal. There are two opinions in legal theory. The first222

generally argues that the appeal is not possible, because on the grounds of complete

testimony the facts are found accurately and the judgment is correct. The purpose of the

good to refuse to answer a specific question is an exclusive right of a witness, given

only because of the protection of their interests and the interest of those close to the

witness. It would be unreasonable to annul the judgment only because the witness was

not instructed about their right.223 On the other hand, the second opinion supports the

position that in this case the relative breach of procedural provisions is given. If the

court instructs the witness on this right, the judgment could be different, if the witness

refuses to answer, the judgment delivered on the ground of the witness’s testimony.224



According to case law the important question is whether the party may oppose the

taking of evidence by examining a witness. The Supreme Court225 has adopted the

opinion that the party may oppose examination of the witness regarding the parties’

conversation with other persons, in respect of which the party alone would have the

right to refuse to testify. Otherwise, the right of a party to refuse testimony would be

double-cross. In this case, one party called the other on the speaker-phone in the

presence of the first party’s attorney who taped the conversation, without the other party

knowing that the conversation was being taped. The Supreme Court decided that in this

case the evidence was not obtained illegally – with interference in privacy. In this

opinion the court explained that generally there is no prohibition on the testimony of

witnesses regarding the content of a conversation between two parties. But the party

may oppose this testimony if the right to refuse to answer was double crossed.



The main decision was related to the admissibility of the evidence (witness) regarding

the fact of the content of the parties’ phone conversation.



Both the witness and party must speak the truth and both of them have the right to

refuse to answer specific questions, if with the answer the party or witness might,

commit serious embarrassment or considerable material damage or criminal prosecution



222 Zuglia, cited in Zobec, op. cit., vol. 2, p. 451.

223 Idem, p. 452.

224 Ibidem.

225 Decision of the Supreme court of RS, No. II Ips 80/98, 25.3.1999 and legal opinion announced

at the session on 16.6.1999.

76





Part I


to themselves or to certain persons who are in close relationship, as is enumerated

exhaustively in legislation.



Article 231 of CPA must be mentioned in relation hereto, because the witness was the

plaintiff’s attorney when they heard the content of the phone conversation. The

provision foresees the privilege of the witness and not prohibition of testimony. The

rules on the exceptions from the duty to testify are the expression of the recognition that

some interests are more important than the interest to find the truth.226



But the argument of the Supreme Court in this case is questionable, because the

provision in Article 233 CPA relates to the right of the witness to protect their own

interests and the interests of those persons who are close to them as a witness. With this

explanation in mind other persons are not protected by this provision and the witness

has no right to refuse to testify for the protection of other persons.227 Furthermore, the

right to privacy over letters and e-mails is not violated if the addressee allows someone

to read the letter.228 Also, we cannot say that there is an unlawful interference with

personal rights in the event a person to whom the party reveals the secret, then for the

purpose of civil proceedings discloses this secret as a witness.229



The party may resist the taking of evidence which was obtained by a violation of

personal rights and the performance of evidence would once again present violation of

personal rights. But on the other hand, this party may not always resist examination of

the witness about the information for which the party would have the right to refuse to

answer, regardless of how the witness got this information.230



According to the Supreme Court’s explanation231 the audio recording should be treated

the same as the written record about the conversation, irrespective of the method of

record (handwritten, written by typewriter or computer). In each case, it is on one hand

the original source of the writer's memory support, and is on the other hand additional

evidence – as a support for the credibility of the witness’s confession or statement. In

this case the party called the opposite party from the attorneys’ office where the attorney

recorded the conversation. The first instance court did not allow evidence by hearing the

attorney as a witness and listening to the audio recording. The Supreme Court has

granted the revision as an extraordinary remedy and annulled the judgements of both



226 D. W. Lukić, Varstvo osebnih podatkov v civilnih sodnih postopkih, Podjetje in delo, vol. 5-

6/1996, p. 914-921.

227 J. Zobec in L. Ude, A. Galič, Pravdni postopek: zakon s komnetarjem, 2nd book, GV založba,

Ljubljana, 2006, p. 451.

228 Decision of the Supreme court of RS, No. II Ips 80/98, 25.3.1999.

229 For the taking of evidence gained through a violation of the right to privacy, special

circumstances must exist, and this evidence should have special meaning for exercising

constitutionally protected rights. In this case the court needs to consider the proportionality

principle. Judgment of the Constitutional court of RS, No. Up 472/02, date 7.10.2004.

230 J. Zobec in L. Ude, A. Galič, Pravdni postopek: zakon s komnetarjem, 2nd book, GV založba,

Ljubljana, 2006, p. 451.

231 Supreme court of Slovenia, opinion No. VS034787, 16.06.1999 and judgement of the Supreme

court of Slovenia, No. Sodba II Ips 495/2001, 17.04.2002.





Part I


77




courts (first and appellate court) with the explanation that the first instance court should

in a renewed procedure take such evidence. Namely, the Supreme Court did not see this

evidence as a violation of the right to privacy (Art. 35 of the Constitution of RS).



Nonetheless the Constitutional Court232 explained that recording of the phone

conversation and the written summary of the conversation may not be considered equal.

Notes of the conversation are a summary of what was heard and written according to the

subjective judgement of the writer considering what needs to be written. The recording

is authentically preserved word or voice which was taken from the person who

pronounced this word. Audio recording gives the power over the person or personal

good, as it makes a reply possible. If this is done without the knowledge of the affected

person, than there is a direct intervention in the exclusive right of the person to dispose

with their voice.



Additionally, the Constitutional Court explained that such intervention to the right to

privacy may under the special conditions be acceptable, but special circumstances

should exist for evidence obtained by violation of the right to privacy to be taken. Such

evidence should have special meaning for the enforcement of this specific right, as

protected by the Constitution. In such a case the deciding court must consider the

principle of proportionality and carefully assess which right should get primacy over the

other (par. 3 Art. 15 and 2 Constitution of the RS). However the decision of the

Constitutional court left the question whether there has been a violation of the right to

privacy or the right to privacy of correspondence and other means of communication

open (Art. 37 of the Constitution). According to the opinion of the Constitutional court

the latter is lex specialis in relation to general right to privacy.233



Article 22 of the Constitution of RS ensures the right to equal protection of rights before

the court and relates to the right to a fair trial. The Constitutional Court determines two

rights that result from this article, namely the right to an adversarial procedure and the

right to the equal treatment of the parties.234



Form the stand point of the European court for human rights235 the main element of the

right to adversarial procedure is the right of the party to have knowledge of and

comment on the observations filed or evidence adduced by the other party (right to be

heard).





232 Up-472/02, 7.10. 2004.

233 R. Zagradišnik, Nedopustno pridobljeni dokazi v civilnem pravdnem postopku –

primerjalnopravni pregled sodne prakse in teorije, Pravnik, 2006, vol. 1-3, p. 162.

234 A. Galič, Ustavno civilno procesno pravo; ustavna procesna jamstva, ustavna pritožba – meje

preizkusa in postopek; GV založba, Ljubljana, 2004, p. 219.

235 Ruiz Mateos versus Spain, A 262 cited in A. Galič, Pravica do kontradikotrnega postopka –

ustavni vidik, Podjetje in delo, vol. 6-7/1999, p. 1169

78





Part I


There is a conflict of interest of the parties to protect their privacy and interest of the

parties to collect evidence for the purpose of ensuring the judicial protection of rights.236

The main concern in legal theory and case law about the stated relates to the question of

where the limits of these rights stand and in which cases must the right to privacy yield

to other constitutionally assured rights. Paragraphs 2 and 3 of Article 15 of Constitution

of the Republic of Slovenia states that “The manner in which human rights and

fundamental freedoms are exercised may be regulated by law whenever the Constitution

so provides or where this is necessary due to the particular nature of an individual right

or freedom. Human rights and fundamental freedoms shall be limited only by the rights

of others and in such cases as are provided by this Constitution”. This means that in the

event of conflict between protection of right to privacy (Art. 35 of the Constitution),

protection of the right to privacy of correspondence and other means of communication

(Art. 37 of the Constitution), protection of the right to personal data (Art. 38 of the

Constitution), and the right to be heard, which is also connected to the right to propose

evidence, the balancing of rights within the proportionality principle will answer which

right outweighs which. It comes to finding a balance between the right to evidence and

the human rights of a person who has been affected by unlawfully obtained evidence. A

proper balance is the basis of the decision that the taking of evidence is not admissible if

it was obtained through a violation of human rights which would mean that the

performance of such evidence in civil proceedings would result in repeated

infringements of human rights.237



3.9

Relationship Between Regulation No 1206/2001 and Bilateral or Unilateral

Agreements



The Regulation provides in Article 21 (1) that it shall, in relation to matters to which it

applies, prevail over other provisions contained in bilateral or multilateral agreements or

arrangements concluded by Member States and especially over the Hague Convention

of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters,

in relations between the Member States’ party thereto. The Regulation does, however,

not preclude Member States from maintaining or concluding agreements or

arrangements between two or more of them to further facilitate the taking of evidence,

provided that they are compatible with this Regulation (Art. 21 (2)).



As for the treaties notified238 under paragraph 3 of Article 21 of the Regulation No

1206/2001, Slovenia has notified the following agreements.



Agreements or arrangements maintained between the Republic of Slovenia and

Member States:

- Treaty of 16 December 1954 on mutual legal aid between the FPR Yugoslavia and

Republic of Austria.



236 V. Rijavec, Problem varstva osebnih podatkov v sodnih postopkih v zveti s procesnimi dejanji

strank, Podjetje in delo, vol. 5-6/1996, p. 922.

237 A. Galič, Ustavno civilno procesno pravo: ustvana procesna jamstva, ustavna pritožba – meje

preizkusa in postopek, GV Založba, Ljubljana, 2004, p. 289.

238 http://ec.europa.eu/justice_home/judicialatlascivil/html/pdf/manual_tev_sln.pdf.





Part I


79




- Agreement of 24 September 1971 on legal aid in civil and commercial matters

between the SFR Yugoslavia and the Kingdom of Belgium.

- Agreement of 29 October 1969 on facilitating the use of Hague Convention relating

to the civil procedure between the SFR Yugoslavia and the Republic of France.

- Convention of the 3 December 1960 on mutual legal aid in civil and administrative

matters between the SFR Yugoslavia and the Republic of Italy.

- Convention of the 27 February 1936 on regulating mutual aid relating to procedure

in civil and commercial matters pending or may be pending in front of the

competent judicial authorities between the Kingdom of Yugoslavia and the United

Kingdom.

- Treaty of 19 September 1984 on legal aid in civil and criminal matters between the

SFR Yugoslavia and the Republic of Cyprus.

- Treaty of 20 January 1964 on regulating legal relations in civil, family and criminal

matters between the SFR Yugoslavia and SR Czechoslovakia.

- Treaty of 7 March 1968 on mutual legal trafficking between the SFR Yugoslavia

and PR Hungary and Treaty of 25 April 1986 on modifying the treaty of 7 March

1968 on mutual legal trafficking between the SFR Yugoslavia and PR Hungary.

- Treaty of 6 February 1960 on legal trafficking in civil and criminal matters between

the FPR Yugoslavia and the PR Poland.



Additionally, Croatia has notified the European Commission that the Agreement

between the Republic of Croatia and the Republic of Slovenia on Legal Assistance in

Civil and Criminal Matters from February 7, 1994 will be maintained.

- Agreement with Austria: there is no need for authenticating the request, which can

be submitted in one of the accepted languages, signed by a requesting authority

(either in Slovenian or German). The same applies for attached documents. The

request is granted according to the rules of the law of the requested court. The

agreement makes the request in possible in a special form upon the request of the

requesting court, if such a request is not contrary to the basic principles of the law of

the country where the requested court is situated. The requested court may, if

necessary, use the same coercive measures foreseen in the national law of the

requested court, but coercive measures may not be used against the parties.

- Agreement with Belgium: a request for legal aid must be submitted with an official

translation of the request in the language of the requested state (Slovenian; French,

Dutch, German for Belgium), which must be authenticated by the sworn interpreter

of the requesting state. The agreement also foresees the possibility that, besides the

courts, the consular or diplomatic representatives may execute the request, if the

request relates to the examination of their citizens. The agreement prohibits the use

of coercive measures and this prohibition should be included in each invitation for

processing the request.

- Agreement with France: a request for legal aid must be delivered through authorised

bodies in each country (ministry of justice) to the competent court in requested state.

The request must be submitted with an official translation thereof in the language of

the requesting state, which must then be authenticated by the sworn interpreter of the

requesting state. Besides the processing of the request by competent court, the

consular or diplomatic representatives may conduct procedural actions directly and

80





Part I


without the use of coercive measures within the limits of their functions.

Furthermore, the consular or diplomatic representatives may also examine their

citizens directly and without the use of coercive measures.

- Agreement with Croatia: a request for legal aid must be submitted in the language of

the state which is requesting legal aid. There is no obligation foreseen for the

translation of the request to be enclosed and the answer to the request should

afterwards be prepared in the language of the requested state. The request must

include a description of the matter, data necessary for the procedure, and

information on the parties and their representatives. The request is processed

according to the law of the requested state. The requesting state may ask that the

request is executed in a way and form according the wishes of the requesting state, if

the request is not contrary to the law thereof. The requested state may reject the

processing of the request if it opposes the law of the requested state, its sovereignty,

or security. Additionally, documents issued by the court or an authorised body in

one state need not be certified for use in the other state. A document issued in one

state have the same probative value in the other state as in the state of origin.

- Convention with Italy: Communication regarding the processing of requests for

legal aid must be done through the ministry of justice in both countries. The request

is processed by the courts of one or more of the other countries. In specially justified

cases of extreme necessity the courts may communicate directly. Besides processing

the request by a competent court, the consular or diplomatic representatives may

directly process requests for hearing their citizens. These requests are processed

according to the law of the requested country. The requested state may reject the

processing of the request if it is conflict with the sovereignty, security, or public

order of this country. The persons who must be examined are called to appear before

the court through usual administrative notification. If a notified person fails to

appear, the court may use the coercive measures foreseen in the national law of their

country. If there is an expressed request from requesting ministry, the requested

ministry will, except in the cases where there are contrary provisions in the law of

the country of the requested body:

1) process the request in a special way;

2) inform the requesting body regarding the day and place of the processing of the

request, so the parties may be present when the request is fulfilled.

The request must to be drawn up in the official language of the country of the

requesting court and the cover letter in the official language of the country where the

requested court is situated. In cases of extreme urgency the request may be drawn up

in the official language of the country of the requesting court accompanied by an

uncertified translation in the official language of the requested court. The request

must contain indication of the issuing court, name, occupation, and address of the

person, who needs to be examined, and the questions, which must be asked and facts

that are necessary to be determined.

- Convention with United Kingdom: The judicial authority of the country of origin

may, in accordance with the provisions of the law of their country, address himself

by means of a Letter of Request to the competent authority of the country of the

processing, requesting that such authority take evidence. The request shall be

transmitted in England by a Slovenian diplomatic or consular representative to the





Part I


81




Supreme Court of Slovenia; in Slovenia by a British consular representative to the

Ministry of Justice. The request shall be drawn up in the language of the country of

processing or be accompanied by a translation into such language. Such a translation

shall be certified or correct by a diplomatic or consular representative acting for the

country of origin. The request shall state the nature of proceedings for which the

evidence is required, giving all necessary information in regard thereto, the names of

the parties thereto, and the names, descriptions, and addresses of the witnesses. The

request shall also either (1) be accompanied by a list of interrogatories to be put to

the witnesses, or, as the case may be, by a description of the document samples or

other objects to be produced, identified or examined, and a translation thereof,

certified as correct in the manner heretofore provided; or (2) shall request that the

competent authority allow such questions to be asked viva voce as the parties or

their representatives shall desire to ask. The competent authority of the country of

execution shall give effect to the Letter of Request and obtain evidence required by

the use of the same compulsory means and the procedure as are employed in the

execution of the commission or order emanating from the authorities of their own

country, unless the desire that some special procedure should be followed is

expressed in the Letter of Request, such a special procedure shall be followed

insofar as it is not incompatible with the law of the country of execution. The

execution of the Letter of Request, which complies with the preceding provisions of

the Convention, can be refused: (1) if the authenticity of the Letter of Request is not

established; (2) If, in the country of execution, the execution of the Letter of Request

in question does not fall within the functions of the judiciary; (3) If the contracting

party in whose territory it is to be executed considers that sovereignty or safety

would be compromised thereby. The evidence may also be taken, without any

request to or the intervention of the authorities of the country of execution by a

diplomatic or consular officer in that country acting for the country of origin

appointed for this purpose by the court in that country. An officer so appointed to

take evidence may request that the individuals named by the court appointing them

appear before them and to give evidence. They may take all kinds of evidence which

is not contrary to the law of the country of execution. The attendance and giving of

evidence before any such officer shall be entirely voluntary and no measures of

compulsion shall be employed. The evidence may be taken in accordance with

procedure recognised by law of the country of origin, and the parties will have the

right to be present in person or to be represented by any representatives who are

competent to appear before the courts either of the country of origin or the country

of execution.

- Treaty with Cyprus: For the purpose of requesting and rendering legal assistance,

the Courts of Justice communicate though the following competent authorities: (a)

For Slovenia the administrative authorities authorized to act in judicial matters; (b)

For the Republic of Cyprus: The Ministry of the Republic of Cyprus. The request for

legal assistance and all documents submitted by the Courts of Justice and the

competent authorities shall be in one of the languages of the requesting country and

shall be accompanied by a translation into one of the languages of the requested

country. The content of the request is foreseen in Article 4 of the Agreement. The

requested authority in rendering legal assistance shall apply the law of its State. The

82





Part I


requested authority may proceed in the manner specified in the request if such a

manner does not conflict with the law of its State. Compliance with the request for

legal assistance may be refused if the requested court deems that such compliance is

in conflict with its fundamental legal principles or may prejudice or endanger its

sovereignty or security.

- Treaty with Czech Republic: The requested body processes the request according to

the law of the country. The requested authority may in accordance with the request

of the requesting authority proceed in a way stated in the request.

- Treaty with Hungary: The courts in both countries communicate on the Slovenian

side through administrative authorities competent for judiciary, on the Hungarian

side through the Ministry of Justice. The communication shall be in the Slovenian or

Hungarian language. According to the provisions of the Agreement, the request for

legal aid is granted under the law of the requested court. If the requesting court

sends a request requiring special form of the procedure, the request is granted only if

it does not run afoul with the legislative principles of the requested court. In granting

the request, the requested court shall use, if necessary, the same coercive means as

provided to comply with a request for legal aid for domestic courts. Coercive means

shall not apply in the case when the personal attendance of parties is needed.

Compliance with the request for legal assistance may be refused if the requested

court should deem that such compliance is in conflict with its fundamental legal

principles or may prejudice or endanger its sovereignty or security.

- Treaty with Poland: The courts shall communicate on one side through the

administrative bodies for judiciary in Slovenia and on the other through the Polish

Ministry of Justice. The court shall use the Slovenian or Polish language. The

request is granted according to the law of the requested country. The request of the

requesting court, which includes the request to grant the request in a specific

manner, shall be accepted only to the extent that is not contrary to the fundamental

principles of the law of the requested country. The requested court when granting

the request may use the same coercive measures as when granting the requests of

domestic courts. Coercive means shall not apply when the personal attendance of

parties is required. Compliance with the request for legal assistance may be refused

if the requested court deems that such compliance may prejudice or endanger its

sovereignty or security.





Evidence in Civil Law – Slovenia

Tjaša Ivanc





Part II – Synoptical Presentation





1

Synoptic Tables



1.1

Ordinary/Common Civil Procedure Timeline



Phase

Name of the

Responsible

Duties of the

Rights (related only

Phase

Subject

Responsible Subject

to Evidence) of the



(related only to

Responsible Subject

Name of the

Evidence) and



Phase in

Consequences of their

National

Breach

Language

1.

Action

Claimant

The action shall

There is no obligation



contain a specified

to disclose documents,

Tožba

relief or remedy

which the party

claimed in respect of

possesses and might

the cause of action, the

support the case for

statement of facts

the claimant opponent,

constituting the cause

defendant.

of action, the statement

There is no obligation

of evidence proving

to submit preliminary

these facts, and other

witness statements but

particulars required in

the claimant must state

every pleading. Only

the name and

documentary evidence

addresses of

quoted in the claim is

witnesses.

expected to be

Claimant must submit

enclosed. Parties are

to the court documents

bound to state all facts,

adduced as evidence

adduce evidence

to support their

required to establish

statements.

the truth of their

A document kept with

statements, to produce

a government body or

declarations regarding

other statutory

the statements of

authority and is

opposing party and

inaccessible to a party,

evidence adduced by

shall be procured by

the opposing party, no

the court ex officio.

later than at the

Claimant has the right

opening of the hearing

to ask the other party

session.

to produce evidence

84

Part II – Synoptical Presentation



via courtś order

2.

Preparation of

Court

The court must

The court has the right

the main hearing

establish whether the

to call the party in

– a preliminary

conditions for

writing to state their

examination of

admissibility of the

opinion in their

the action

action are fulfilled.

written preparatory



The court takes into

submission about

Priprave na

consideration the

certain facts or their

glavno

procedural

evidence shall be

obravnavo –

prerequisites:

completed, or to

predhodni

concerning

submit evidence in

preizkus tožbe

jurisdiction,

writing on which they

concerning the parties

have based their

and concerning the

motion, and the party

subject matter.

fails to comply, the

Upon the preliminary

party may at the

examination of the

opening hearing state

action, the judge has

such facts and

the right to render

produce such

decrees referred to in

evidence only on the

Article 270, so the

condition that they

court may solve only

were without their

preliminary procedural

fault unable to state

questions (e.g. on

them earlier, or that

securing the evidence,

the court estimates

on security for costs of

that their admission

proceedings; on

will not prolong the

advancement for costs

settlement of the

of specific acts of

dispute. The party

procedure; on

shall be informed of

appointment of an

that consequence in

expert); if the action is

the order.

unintelligible,

If a party submits to

incomplete, or affected

the court extensive

by any shortcomings

documentary

with respect to the

evidence, the court

parties’ capacity to

shall have the right to

sue, the statutory

order the party to

representation of a

submit within a fixed

party, or to the right of

term a summary in

the representative to

writing of the most

commence a litigation,

significant statements

when a special permit

and information in the

is necessary for these

attached documents

purposes, or that a

and to indicate the

party is not represented

numbers of the pages

by a person who may

on which the

be an attorney, the

statements, or

court will send the

information, are

action for the

located in the

correction

submitted documents.

Part II – Synoptical Presentation

85



The court shall thus

have the right to take

this measure in

particular if the

submitted documents

are confusing because

of their number or

contents or if in view

of the nature of the

documents it is

justifiably expected

that the statements

and information in

their particular parts

are only significant

for establishment of

the asserted facts.

If the party fails to

follow the court's

instructions from the

preceding paragraph,

the evidence shall be

deemed to have been

withdrawn.

A judge may deliver a

judgment on the basis

of acknowledgment, a

judgment on the basis

of relinquishment, a

default judgment, and

may accept a court

settlement to be made

on the record.

3.

The court sends

Defendant

The defendant’s plea

There is no obligation

the action to the

must be explained as

to disclose documents,

defendant to

follows:

which the party

make a defense

- is the defendant

possesses and might

plea within 30

opposing the plea

support the case for

days from

claim as a whole or in

the opponent.

delivery of the

part, and in which part;

There is no obligation

action – defense

- the defense must be

to submit preliminary

plea

accompanied by the

witness statements but



necessary documents

the claimant must state

Odgovor na

and proposed

the name and

tožbo

evidence.

addresses of the

If the claimant does

witnesses.

not reply in time or the

The defendant must

defense is not

submit to the court

explained the court

documents adduced as

will deliver judgment

evidence to support

by default.

their statements.

86

Part II – Synoptical Presentation



The defendant has the

right to ask the other

party to produce

evidence via the

court’s order.

A document kept with

a government body or

other statutory

authority and

inaccessible to a party

shall be procured by

the court ex officio.

During the

preparations for the

main hearing, parties

may file pleadings in

which they state the

facts they intend to

assert in the main

hearing, as well as

evidence they intend

to adduce.

The court has the right

to make observations

and to put questions in

writing to the parties

and requests from

them to offer

additional evidence. If

a party does not

respond to these

instructions, such a

party may be

precluded from stating

such evidence at a

later stage of the

procedure.

4.

Settlement

Court

A special stage in the

Any documents

hearing and

procedure which

comprising concrete

court settlement

follows the receipt of a

offers from the



reply or plea from the

opposing party for

Poravnalni

defendant. It is held

settlement and

narok

prior to the trial and is

submitted in

not obligatory.

negotiations or

proceedings for

settlement by

agreement shall not be

submitted as evidence

in civil procedure

proceedings (Article

309a CPA). The

Part II – Synoptical Presentation

87



Slovenian CPA does

not include rules for

exclusion of illegal

evidence, which

means that there is no

guarantee that the

judge will not be

acquainted with the

settlement offer if the

party acts against with

the duty referred to in

Article 309a CPA. If

neither party comes to

the settlement hearing,

it shall be deemed that

the claimant has

withdrawn the action.

5.

Determination

Court

The main hearing shall

The judge shall decide

of the main

be fixed by the

which witnesses

hearing

presiding judge.

and/or experts to

The main hearing shall

summon to the

be fixed so as to allow

hearing.

the parties enough time

to prepare for it; at

least fifteen days shall

pass from the receipt

of summons by the

parties to the date of

the hearing.

6.

Main hearing

Court

The judge needs to

Parties have the right



determine which facts

to submit preparatory

Glavna

are relevant to the case

submissions even

obravnava

and which of them are

without the court

in dispute. The judge

order. The preparatory

issues an evidence

submission shall be

decree (dokazni sklep)

sent to the court early

by which the judge

enough to be served

decides which

on the opposing party

evidence with regard

prior to the hearing, so

to relevant facts are to

that the hearing need

be taken. The judge

not be adjourned in

has the duty to take an

order to ensure the

active role and to ask

right of the opposing

the parties questions

party to be heard.

and to allow them to

The judge has a right

supplement their

to set binding time

evidence. If there is a

limits for the

misunderstanding

submission of the

regarding the legal

preparatory

grounds (material

submissions with

procedural guidance)

further comments and

88

Part II – Synoptical Presentation



and the parties failed

clarifications.

to state all the relevant



facts and evidence

supporting this legal

ground, the judge has

the duty to inform the

parties and discuss this

with them.

The parties have the

right to make

comments to facts,

evidence and legal

grounds.

Parties can state all

facts and adduce

evidence to produce

declarations regarding

the statements and

evidence adduced by

the opposing party, up

until and including at

the first session of the

hearing. At later

sessions the parties are

allowed to present new

facts and evidence if

they were prevented

from presenting them

by reason beyond their

control.

If neither party comes

to the first session of

the hearing, it shall be

deemed that the

claimant has

withdrawn the action.

7.

Deliberation and

Court

When the judge

The judge may decide

delivering the

considers that the case

to close the main

judgment

in dispute has been

hearing even if some



examined to a

additional

Razglasitev in

sufficient degree so

documentary evidence

izdaja sodbe

that it can be decided

or the record on

upon, the judge shall

evidence produced by

announce the

the requested judge

conclusion of the main

are left to be procured

hearing.

if the parties have



waived the right to

Only the judge who

examine such

conducted the trial and

evidence or that

was personally present

examination thereof is

at the taking of

not considered

Part II – Synoptical Presentation

89



evidence, may render

necessary.

the judgment (the

principle of

immediacy).

Exceptions: a

requested judge.

If the judge has been

changed, during the

trial, the main hearing

needs to start over.

However, the judge

may decide, upon

hearing of opinion by

the parties, not to

repeat the examination

of witnesses and

experts or the view,

but to read the records

on the production of

this evidence.





90





Evidence in Civil Law – Slovenia

Tjaša Ivanc





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Evidence in Civil Law – Slovenia

Tjaša Ivanc





Case-based part





1.1) The requesting court asks your court to take evidence by use of video-

conference.

If the court of another state asks a Slovenian court to take evidence by the use of

videoconference, the Slovenian court will take the evidence in the requested manner.

Pursuant to Slovenian law the taking of evidence by videoconference is not prohibited

by law. The Slovenian Civil Procedure Act includes a legal basis for voice and video

recording of the main hearings (Art. 125.a CPA). This means that the court has the

discretion to decide if the hearing will be held by use of video-conference. The court

may allow the use of video-conference, but the consent of both parties is required (Art.

114.a CPA). Namely, the court may give the initiative for the use of the video-

conference, but must obtain the consent of the parties. If the requesting court is from a

Member State of the EU, regulation 1206/2001 could be applied.



1.2) What if the requesting court is from a non-Member State for which no

bilateral or multilateral treaty can be applied?

The Slovenian CPA states that Slovenian courts give legal aid to foreign courts in

cases which are determined by international treaties and in cases when the principle of

reciprocity applies (Art. 175 CPA). Domestic courts have jurisdiction only in the

territory of their country, which is why official acts may not be performed in the

territory of foreign country without the help of their courts.239 Slovenian courts also

offer legal aid outside the scope of obligations under the international treaties as a result

of international courtesy. The requested country provides legal assistance to the

requesting country with the expectation that it too will receive the necessary legal

assistance when needed.240 The CPA sets the reciprocity condition, which may be actual

or formal.241 In the given case, the Slovenian court will take evidence according to the

provision of the domestic CPA. A Slovenian court may execute the request also

according to the law of the requesting Non-Member State, if such a requested procedure

is not contrary to the public order of RS (Art. 176 CPA). A request must be sent through

diplomatic channels and drafted in Slovenian or with a certified translation enclosed.

The CPA also includes a provision which comprises the basis for the right to justice

and the rules when the evidence is impossible to perform. Article 219 of the CPA is

applicable also in cases when the evidence must be executed in a foreign country with



239 V. Rijavec in L. Ude, A. Galič, Pravdni postopek: Zakon s komentarjem, 2nd book, 2006, p.

102.

240 Idem, p. 104.

241 Idem, p. 105.

96

Appendix



which Slovenia does not have diplomatic relations or with which Slovenia does not

have a bilateral agreement on legal aid. In these circumstances the court determines the

deadline until the court waits for the evidence to be taken.



1.3) What if the requesting court is from Denmark?

With respect to Denmark, the Hague Convention on the taking of evidence abroad in

civil or commercial matters applies. Regarding the taking of evidence by use of video-

link, the Special Commission has confirmed that the use of video-links and similar

technologies to assist the taking of evidence abroad is consistent with the current

framework of the Hague Evidence Convention.242



2.) The requested court is taking evidence by hearing witnesses via VCF with the

requesting court. The requesting court indicated that they would like to ask

questions on their own. Since in some countries the parties cannot directly

address witnesses, can the judge in the requesting country allow the parties to

directly address the witnesses in the requested country? Answer this from the

perspective of requested country!

The requested court processes the request in accordance with the law of its state, in the

given case Slovenian law. Under Slovenian law the witness is firstly examined by

judge. Parties may raise questions after the judge is finished with their questioning, but

only with the court’s permission. The court will not allow the question if a specific

question raised from the parties includes how the witness must answer or such a

question is not related to the matter in question. Under Art. 10 of Regulation 1206/2001

the requesting court may also call for the request to be processed in accordance with a

special procedure provided by the law of its Member State. The requested court shall

comply with such a requirement, unless this procedure is incompatible with the law of

Member State of the requested court or by reason of major practical difficulties.

The requesting court should, in its request, inform the requested court that the parties

will be present and that their participation is requested (par. 1 Art. 11 Evidence

Regulation). The determination of the conditions for participation of the parties falls

within its jurisdiction (par. 3 Art. 11 Evidence Regulation).

The requested court notifies the parties of the time when and the place where the

proceedings will take place, as well as the conditions under which they may participate.

If the possibility for parties to participate and question witnesses is provided by the

law of its State, the requested court may ask the parties and any their representatives to

participate in the taking of evidence, irrespective of the request of the requesting court.

The requested court must process the request unless this is contrary to the basic

procedural principles of its state or unless it causes major practical difficulties (par. 3

Art. 10 Evidence Regulation). If the parties according to domestic law may ask

questions and examine the witness, the requested court may allow cross-examination of

the witness.243 A request for hearing a person shall not be granted when the witness



242 Permanent Bureau: Draft Practical Handbook on the operation of the evidence convention,

March 2014, available at: http://www.hcch.net/upload/wop/2014/2014sc_pd01en.pdf.

243 Betetto, N., Introduction and particle cases on Council Regulation No 1206/2001 on

cooperation between the courts of the Member States in the taking of evidence in civil or

Appendix

97



claims the right to refuse to give evidence or to be prohibited from giving evidence,

under the law of the Member State of the requested court or under the law of the

Member State of the requesting court, when such a right has been specified in the

request, or, if need be, at the instance of the requested court, it has been confirmed by

the requesting court (Par 1 Art. 14 Evidence Regulation).



3.) How would a judge in your country establish the identity of a person who is

refusing to show their face on the basis of religious (or similar) customs?

Slovenian Civil Procedure Act (par. 3 Art. 239 CPA) stipulates that the judge shall

establish the identity of the witness according to the basis of the general questions that

would enable the identification of witnesses. Namely, the witness is asked for their

name and surname, the name of the father, occupation, residence, place of birth, age,

and relationship to the parties, which means that the judge could ask the witness to

show their identification document (ID card). In the present case, it would be possible

for another person to be called in order to establish the identity of the person who

wishes not to have their identity revealed (or a female representative of the court could

verify the identity) or with an additional control question. The CPA does not

specifically address such situations. Furthermore, this issue has not been addressed in

our case-law.



4.) What are the powers/duties of the requesting judge to intervene during the

hearing by VCF in cases of violation of mandatory rules, public policy/ordre

public or discipline in courtroom?

The regulation offers two ways of taking evidence across borders, namely actively or

passively. When taking evidence with the legal help of the court of another Member

State, the requested court processes the request for taking evidence according to the law

of its Member State. We can say that the principle of immediacy is partially ensured by

enabling the requesting court to inform the requested court that its representatives will

be present and also requests their participation. According to the Regulation the request

for participation may be given at any other appropriate time. The requested court

determines the conditions under which the representatives from the requested court may

participate. Nevertheless, the performance of taking of evidence depends upon the law

of requested court, so the rule of lex fori applies. The requesting court should sustain

from any intervention when the requested court is executing the request, but it is within

the competence of the requesting court to assess according to the national procedural

rules on how the violation affects the procedure.

Direct taking of evidence from the requesting court is a second way where the

requesting court takes evidence according to the law of its state directly in another

Member state but without the use of any coercive measures. The conduct of the

procedural act in this case is in the hands of the requesting court. However, by this

method the requesting court may execute only specific evidence and not the whole main

hearing. In cases of violation the law of the requesting court will apply, but the

competent body in another Member State may refuse the taking of evidence if the direct

taking of evidence is contrary to the fundamental principles of law in its Member State.



commercial matters, The European Legal Forum, (E) 4/2006, 137-144, p. 139, available at:

http://www.simons-law.com/library/pdf/e/680.pdf.

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In particular, the competent body may assign a court of its Member State to take part in

the taking of evidence in order to ensure the proper application of the rules and the

conditions that have been set out according to the law of its Member State.



4.1) What are the powers/duties of requested judge to intervene during the

hearing by VCF in cases of violation of mandatory rules, public policy/ordre

public or discipline in courtroom?

When taking evidence passively, the requested court processes the request by applying

the law of its Member State. In case of violation the requested judge may intervene

according to the domestic procedural rules. The use of coercive measures depends on

the law of the requested court. But if the requesting court has requested that the request

be processed in accordance with a special procedure provided for by the law of its

Member State, the requested court may refuse to comply with the request if this

procedure is incompatible with the law of its Member State.

When directly taking evidence, the requesting court takes evidence according to the

law of its state directly in another Member State, but without the use of any coercive

measures. As long as the requesting court is not employing coercive measures, the law

of its Member state applies in cases of violations of mandatory rules, public policy or

discipline in courtroom. The competent body of requested court may refuse taking of

evidence, if the direct taking of evidence is contrary to the fundamental principles of

law in its Member State. The requested court may take part in taking evidence. In this

case the Regulation enables the requested court’s intervention if the application of the

rules and the conditions set out according to the law of its Member State are not

properly applied by the requesting court (Art. 17 Regulation).

According to the Slovenian CPA the judge is in charged for maintaining order at the

court hearings and for the dignity of the court (Art. 304 CPA).

The requested judge has the power to remove and/or fine anyone present at the court

hearing who fails to comply with an order given by the court to ensure order, acts in an

improper manner, or expresses contempt for the court or for other participants in the

proceedings (Art. 304 CPA).

Further the court may remove from the proceedings a representative of a participant or

a party. If the party is removed from the court room, the main hearing may be continued

without the party’s presence. If the person acting improperly is an attorney, the judge

will additionally notify the Slovenian Bar Association that the attorney belongs to of

such behaviour (par. 4 Art. 304 CPA).

In a situation where ordre public is violated by the requested court, the requesting

judge’s duty and powers to intervene through videoconferencing is limited by the

requested court’s responsibility to process the request.



5.) The witness mentions that they have some important documents or objects

while testifying. Must the parties request such documents (or objects) to be

included into evidence or can the judge do so at their own motion, or are there

any preclusions applicable to such case?

According to the adversarial principle parties are responsible for adducing facts and

they dominate in the process of gathering evidence or evidentiary material (Art. 7 CPA).

The parties decide on what factual circumstances they base their claims on and what

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evidence they present to prove the factual circumstances. If neither of the parties alleges

specific facts or proposes any evidence, the court is obliged to consider that this fact

does not exist (see Art. 212 CPA). The court may not on its own motion gather and

propose evidence, except in cases provided by law (in family matters).

Under the Slovenian CPA parties can assert new facts and evidence until and

including at the first session of the main hearing; at later hearings the parties are

allowed to present new facts and evidence only if they were prevented from doing so by

reasons beyond their control (Art. 286 CPA).

If party in the stated case was not aware that the witness has the document, the party

must refer to this fact immediately in order for the court to consider this fact. If this fact

is discovered at later hearings, the party must prove that they have, at no fault of their

own, became aware of the fact in the moment when the witness made the statement.

According to Article 285 of the CPA the judge must ask questions and is in charge of

ensuring that all the decisive facts are stated. Under substantive procedural guidance the

court may furthermore see that the parties’ statements regarding the decisive facts are

supplemented and that the evidence relating to the parties’ statements are proposed or

supplemented. In accordance with their duty to actively manage the case the judge must

invite the parties to amend and clarify their asserted facts and to enable them to offer

evidence for their statements if the court considers that the existing evidence is

insufficient.244 Within material procedural guidance, the judge may demand that

important facts and evidence be determined so the applicable substantive law is

determined.245



6.) A person asks the court to secure evidence for a contemplated judicial

proceeding. Is this possible?

Under Slovenian CPA it is possible to secure the evidence for a contemplated (or

commenced) proceeding if there is a justified fear that the evidence later may not be

taken or that it will be taken later be made more difficult (Art. 264 CPA). The person

who will in the future become a party may request that the court secure the evidence.246



6.1) Would it be different if that request were made by the court in a different

Member State under regulation 1206/2001? Answer from the perspective of

the requesting and requested court!

According to the Regulation the request must be made to obtain evidence which is

intended for use in judicial proceedings, either commenced or contemplated (par. 2 Art.

1 Regulation). But the Regulation does not give a specific answer for when the

procedure is commenced or contemplated. If we rely on the provision that the evidence

may also be used in contemplated proceedings, then the Regulation includes also court

measures in relation to securing or protecting the claims. 247



244 A. Galič, Civil procedure Law…, Kluwer Encyclopedia.

245 See more ibidem; N. Betetto in L. Ude, A. Galič, Pravdni postopek: Zakon s komentarjem, 2nd

book, 2006, p. 582-595.

246 V. Rijavec in L. Ude, A. Galič, Pravdni postopek: Zakon s komentarjem, 2nd book, 2006, p.

531.

247 N. Betetto in Evropsko civilno procesno pravo I; GV založba, Ljubljana, 2011, p. 40-41.

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An important point for discussion concerns the relationship between Regulation

1206/2001 and the power to take protective measures under Regulation No 44/2001 and

recast of Regulation No 1215/2012. A question which may cause difficulties within an

area of interpretation is a problem of distinction between the preliminary taking of

evidence prior to the bringing of civil proceedings and the application of a provisional

or protective measure within the meaning of provisions of the Brussels I Regulation.

The question is if a procedure for preserving evidence constitutes a provisional or

protective measure within the meaning of the Brussels I Regulation rules.

In the Preamble of the recast the Regulation explains that “… the protective measures

should not include measures which are not of a protective nature, such as measures

ordering the hearing of a witness. This should be without prejudice to the application of

Regulation No 1206/2001” (see pt. 25 of Regulation No. 1215/2012). In St. Paul Diary

Industries NV vs. Unibel Exser BVBA (Case C-104/03)248 there was an application in

the Netherlands to take a deposition there with a view to its use in the substantive

proceedings in Belgium. The CJEU held that the request for a deposition was not a

claim for provisional or protective measures. Namely, the case related to the Article 24

of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and

Commercial Matters 1968 (the Brussels Convention). The CJEU held that Article 24

had to be interpreted as meaning that a measure ordering the hearing of a witness for the

purpose of enabling the applicant to decide whether to bring a case, determine whether

it would be well-founded, and assess the relevance of evidence which might be adduced

in that regard was not covered by the notion of “provisional, including protective,

measures”. In the stated judgement according to the CJEU’s opinion the provision is of

an exceptional character and should be interpreted strictly. The notion of provisional

and protective measures is to be understood as referring to measures which are intended

to preserve a factual or legal situation so as to safeguard rights the recognition of which

is sought from the court having jurisdiction as to the substance of the case. The notion

includes measures which are intended to preserve a substantive claim in law, and does

not include measures intended to preserve evidence. The purpose of the preliminary

taking of evidence prior to the commencement of proceedings is different. The

preliminary taking of evidence aims to establish, or determine, relevant factual

circumstances which may be decisive for a future resolution of a dispute in issue.

Preliminarily ordering the hearing of a witness aims at enabling the applicant to decide

whether to bring a case, determine whether it would be well-founded, and assess the

relevance of evidence which might be adduced in that regard if not covered by the

notion of “provisional, including protective, measures”.249 According to the judgement

the rules on evidence taking set out in Regulation 1206/2001 could be avoided if

measures for taking evidence could be sought directly before a court not having

jurisdiction as to the substance of the case just as provisional or protective measures.250



248 Judgment of the ECJ of 28 April 2005, Case C – 104/03, St. Paul Dairy Industries NV vs.

Unibel Exser BVBA, [2005] ECR, p. I-3481.

249 Ibid.

250 Ibid.

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The CJEU’s position in St. Paul Diary case was criticized and discussed in theory.

Hein251 has stressed in his paper the most significant positions of theory, namely:

- the procedure to secure the evidence under the Regulation No. 1206/2011 is

regarded as considerably slower and more cumbersome than the granting of a

protective or provisional measure under Article 31 of the Brussels I-Regulation;

- the general opinion regarding legal assistance between Member States is that the

legal instruments in this area should not have an exclusive character.

Furthermore, the author has exposed different approaches to demarcation between

Brussels I and the Evidence Regulation.252 One opinion favors the right of interested

party to choose between the application for a protective measure under the Brussels I

Regulation (Article 31/ Article 35 recast) and the procedure under Evidence

Regulation253. On the other hand, another approach gives priority to the Evidence

Regulation but makes it possible if this path turns out to be ineffective to use Brussels I

regime.254

A third approach discusses the option for domestic law to gives answers as to what the

procedural character of measures for securing of evidence is; If domestic law lets parties

apply for a protective or provisional measure, the party should apply the Brussels I;

when domestic law provides specific procedures for preserving evidence, the procedure

should be conducted under the Evidence Regulation255.

Another approach exposes the importance of differentiation between substantive and

procedural law. If domestic substantive law provides the right to demand the production

and/or inspection of documents or other evidentiary material, the provision on

protective measures under Brussels I Regulation should apply in the same way as it

does with regard to other substantive claims, which leads to recognizable decision; On

the contrary, procedural means for gathering and preserving evidence should fall under

the Evidence Regulation.256

In the case Tedesco v Tomasoni Fittings SrL (Case C-175/06)257 the request was made

under the Regulation 44/2001 for the description of allegedly patent infringing product.

On 21 March 2005 Alessandro Tedesco, took to the Tribunale civile de Genova a

request for a ‘descrizione’ against the Italian company Tomasoni, established in Genoa,

and the English company RWO Ltd., established in Essex, which seems to be the parent

company or supplier of Tomasoni. This court then, on the basis of Regulation Nr.

1206/2001, sent a request for mutual judicial assistance to the competent authority in

the United Kingdom (the ‘Senior Master’), asking this authority to perform the

‘descrizione’ (measure to preserve), in accordance with Italian law, at RWO’s UK

premises. The ‘descrizione’ in the United Kingdom was not only directed against



251 J. von Hein, Drawing the line between Brussels I and the Evidence Regulation. Note on the

Opinion of Advocate General Juliane Kokott in Case C-175/06 of 18 July 2007, The European

Legal Forum (E) 1-2008, p. 34-37, available at: http://www.simons-law.com/library/pdf/e/

883.pdf.

252 Ibidem, p. 35.

253 Makowski cited in J.von Hein, ibidem.

254 Nuyts cited in J. von Hein, ibidem.

255 Hess/Zhou, cited in J. von Hein, ibidem.

256 Hess/Zhou; Coester-Waltjen, cited in J. von Hein, ibidem.

257 Case C-175/06, (2008) 8 Eur L F I-42.

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RWO’s products, but also its invoices, delivery notes, payment orders, commercial offer

letters, publicity material, computer archive data, and customs documents. Since the

‘Senior Master’ refused to fulfil the request on the grounds that searching for and

seizing goods and documents were not among the customary activities of its officers

and that the operation to be carried out could not be executed within the context of

mutual judicial assistance, the Italian court referred the matter to the CJEU for a

preliminary ruling. In particular, it asked the Court to say whether the Italian

‘descrizione’ could be considered to constitute taking of evidence of the type that a

court of one Member State may ask the court of another Member State to execute,

pursuant to Regulation No. 1206/2001/EC on cooperation between the courts of the

Member States in the taking of evidence in civil or commercial matters. The case was

withdrawn before the CJEU was able to deliver a judgement, but the Advocate General

Kokott published an opinion258. In this opinion259 the Advocate General gives

explanation that two types of measures, provisional by nature, can be distinguished by

reference to their aims. Namely, provisional or protective measures which aim to

preserve the substantive claim in issue and to secure an execution of a judgment at a

later time on one hand, and measures for the preservation of evidence which concern the

establishing of facts of the case for the purposes of the future proceedings on the

other.260

If a court in a different Member state asks a Slovenian court to secured evidence, the

rules of the requested court will apply, namely the Slovenian provisions of CPA on

securing evidence. But the Evidence Regulation foresees also the exception to the lex

fori rule, where the procedural provision of the requesting court would apply upon

special request (par. 3 Art. 10 Evidence Regulation). The requested court is obliged to

fulfil such a request, except when it is runs contrary to the procedural rules of the

country to which the requested court belongs or if the fulfilment of such a request were

to pose greater practical problems.



6.2) Would it be different if the request comes from a Non-Member State?

In this case the Hague Evidence Convention will apply. In the context of obtaining

evidence the Draft practical handbook on the operation of the Evidence Convention

extends the notion of evidence also to measures for preserving evidence. This position

is confirmed by the Explanatory Report261, and is supported by commentary262 and

practice.263



258 Opinion of Advocate General J. Kokott, 18 July 2007, CJEU case, order of 27 September

2007, case C-175/06, Alessandro Tedesco, CJEU Reports 2007, I, p. 7929.

259 It is, however, the section of her Opinion, headed Prohibition on pre-trial discovery, which is

also of relevance. The Advocate General appears to have opened that section with a fairly clear

view that the regulation does not apply to the conventional obtaining of pre-trial disclosure. See

par. 68 of the Opinion.

260 See ibidem, par. 80-92.

261 The Explanatory Report notes (at par. 26 – see at http://www.hcch.net/upload/expl20e.pdf)

that by providing for the obtaining of evidence for “contemplated” proceedings (Art. 1(2),

discussed at A6.5(b)(ii)), the Convention authorises the use of a Letter of Request for the

purposes of “perpetuation of testimony” under common law procedure (whereby testimony is

taken of an aged, dying, or going witness), and the civil law procedures of “l’enquête ad futurum”

(now known as "référé préventif ou probatoire”, e.g., Art. 145 of the Code of Civil Procedure of

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If a particular measure is not recognised in the Requested State, it may be requested as

a “special method or procedure” (par. 2 Art. 9 Convention). Moreover, if the measure is

outside the functions of the judiciary in the Requested State, the Letter of Request may

be refused fulfilment (par. 1a Art. 12 Convention).



7.) A document is sent, but the party is already precluded from sending more

documents. However, the judge is now acquainted with it and it is possibly

creating prejudice. What are the consequences in your legal system?

The principle of free assessment of evidence applies to the evaluation of evidence.

The free evaluation of evidence principle is a tool that provides the court with the

methodology for evaluating evidence and deciding which of them will be count as

proven and which will not be even taken or count as proven (see Art. 8 CPA).

There are no formal rules as to the assessment of evidence and the free evaluation of

evidence means judges’ freedom for a conscientious and careful evaluation of each

piece of evidence separately and all together, and the success of the whole evidence-

taking procedure.264

Slovenian law has no answer to the question of what the consequences are if a court

has created a prejudice based on a document sent after the party is precluded from doing

so and the evidence is not to be taken in consideration. The principle of free evaluation

means that the postulate of conscientiousness of assessment of evidence includes moral

category.265



8.) Person A calls person B, who puts Person A on speaker phone in the presence

of person C. Will the testimony of person C be admissible as evidence? Would

there be a difference if person C were a legal representative of person B?

If person C testifies about a conversation between persons A and B, this testimony

would generally be admissible as evidence.

According to the Supreme Court’s opinion, there is no general prohibition in civil

proceedings for the witness to testify regarding what they know about the phone

conversation between the parties, which witness listened to at the invitation of one party

while the other was not aware that the conversation was also being listened to by

someone else.266



France, whereby a court may take certain measures if there is a legitimate reason to preserve or

establish evidence) and “Beweissicherungsverfahren” (now known as “Selbständiges

Beweisverfahren”, e.g., § 485(1) of the Code of Civil Procedure of Germany, whereby the

examination of witnesses or inspection of documents or other property may be authorised where

there is a risk that the evidence may be destroyed or otherwise become unusable).

262 See, e.g., the opinion of AG Kokott in Tedesco v. RWO, par. 85 (confirming that the Evidence

Regulation applies to measures for the preservation of evidence).

263 At its meeting in 2009, the Special Commission noted the practice of States of applying the

Convention to proceedings for the taking of evidence before the main proceedings have been

instituted, and where there is a danger that evidence may be lost: C&R No. 47 of the 2009 SC.

264 J. Zobec in L. Ude, A. Galič, Pravdni postopek: zakon s komentarjem, 1st book, Uradni list,

GV založba, Ljubljana, 2005, p. 91.

265 Ibidem.

266 Supreme Court of RS, opinion No. VS034787, 16.06.1999.

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In line with the Supreme Court’s opinion, the opposing party may resist taking such

evidence only if the party’s right to refuse to answer a particular question for justified

reasons, especially if, by answering, the party might exposed themselves, their relatives

in direct line, irrespective of removals, or in a lateral line up to three removals, or their

spouse or extra-marital partner, or an in-law up to two removals, regardless of whether

the marriage has terminated or not, or their guardian or person under guardianship, or

adopter or adoptee, to a serious disgrace, or considerable financial loss or criminal

proceedings (Art. 233 CPA), would be maneuvered.267

If a party is unaware that the third party is listening, there is a question of privacy

protection as a constitutionally protected human right (Art. 35 Constitution of Slovenia).

The answer, however, should be additionally sought within civil procedure law and

from the perspective of when in the civil procedure may the court refuse to take specific

evidence for the reason of its illegality due to interference in privacy.

If person C is legal representative of person B, the following rules of CPA apply. A

legal representative is considered as a privileged witness. Article 231 of CPA applies to

authorised persons, religious confessors, attorneys, doctors, and other persons whose

work demands keeping secrets. The privileged person is left with the decision of

whether the confidentiality of the relationship or professional secret towards the other

party is to be protected or whether the right to justice should get primacy.268 An attorney

may decline to give testimony if they have learned about the facts while practicing their

profession, and then the obligation of maintaining confidentiality applies. For enforcing

the privilege of professional secrecy two conditions are necessary, namely: the witness

has learned the fact while practicing the profession and the witness must be committed

to the duty to protect the secret. The attorney is not bound to secrecy only for those data

which were entrusted to them by the client but also for data which came from other

sources, as an authorised person or in some other function directly, or from third

parties.269 For someone who refers to the reason for privileged witness it is sufficient

that they prove with probability that the relevant facts were learned when pursuing their

professional occupation.270

The second condition is that the witness is bound by the duty to protect the secret. The

attorney must preliminary evaluate if according to the code of attorney ethics or law the

duty to protect the secret is foreseen. 271 It should be regarded that the court may base its

decision also when such privileged witness has without authorisation revealed a

secret.272

But if disclosure of the important facts is necessary for the public benefit or the

benefit of someone else, such a witness may not refuse to testify on the grounds of

professional secrecy (Art. 232 CPA).

The following explanation of the Supreme Court was constitutionally disputed in the

above mentioned case: If the phone conversation is held between the contractual parties



267 Ibidem.

268 J. Zobec, Pravdni postopek: zakon s komentarjem, 2nd book, p. 444.

269 Triva, Dika, p. 520

270 Ibid,p. 521.

271 Under the Criminal Code of Slovenia the duty to protect professional secrets must be

respected.

272 Ibidem.

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105



regarding a business matter (about the agreement or sale of the property), the parties

could reasonably expect that the opposite party could enable that the conversation will

be listened by other persons. Part of the general knowledge is that business partners, or

contractual parties after the dispute has arose, would want to ensure evidential

opportunities to prove the content of their business relationship if a dispute arises. So

the expectation that such conversation a would not be followed by others should not be

treated as reasonable, unless the confidentiality of the conversation is evident because of

the interconnection of the business conversation with the strict privacy (erotic intimacy)

content or is explicitly agreed or promised by both parties to the conversation

simultaneously.273



8.1) If person B recorded the conversation, is such a recording admissible? Would

there be a difference if person C had recorded the conversation?

The Slovenian CPA does not determine when some evidence is permitted and when is

not. The court decides on the basis of free assessment of evidence which facts will be

counted as proven (Art. 8 CPA). Regarding the types of evidence foreseen by CPA, the

list is not exhaustive. The parties must adjudicate all facts on which their claim is based

and propose the evidence for these facts to be proven (Art. 7 CPA). The CPA explicitly

includes rules on witnesses, documents, experts, parties as witnesses, and inspection.

According to the Supreme Court’s explanation274 the audio recording should be

treated the same as the written record about the conversation, irrespective of the method

of record (handwritten, written by typewriter or computer). In each case, it is on one

hand the original source of the writer's memory support, and is on the other hand

additional evidence – as a support for the credibility of the witness’s confession or

statement. In this case the party called the opposite party from the attorneys’ office

where the attorney recorded the conversation. The first instance court did not allow

evidence by hearing the attorney as a witness and listening to the audio recording. The

Supreme Court has granted the revision as an extraordinary remedy and annulled the

judgements of both courts (first and appellate court) with the explanation that the first

instance court should in a renewed procedure take such evidence. Namely, the Supreme

Court did not see this evidence as a violation of the right to privacy (Art. 35 of the

Constitution of RS).

Nonetheless the Constitutional Court275 ruled that the right to privacy was violated by

both types of evidence. The court also explained that recording of the phone

conversation and the written summary of the conversation may not be considered equal.

Notes of the conversation are a summary of what was heard and written according to the

subjective judgement of the writer considering what needs to be written. The recording

is authentically preserved word or voice which was taken from the person who

pronounced this word. Audio recording gives the power over the person or personal

good, as it makes a reply possible. If this is done without the knowledge of the affected

person, than there is a direct intervention in the exclusive right of the person to dispose

with their voice.



273 Supreme Court of RS, opinion No. VS034787, 16.06.1999.

274 Supreme Court of RS, opinion No. VS034787, 16.06.1999 and judgement of the Supreme

court of RS, No. Sodba II Ips 495/2001, 17.04.2002.

275 Up-472/02, 7.10. 2004.

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Additionally, the Constitutional Court explained that such intervention to the right to

privacy may under the special conditions be acceptable, but special circumstances

should exist for evidence obtained by violation of the right to privacy to be taken. Such

evidence should have special meaning for the enforcement of this specific right, as

protected by the Constitution. In such a case the deciding court must consider the

principle of proportionality and carefully assess which right should get primacy over the

other (par. 3 Art. 15 and 2 Constitution of the RS).

There is no need for different assessments in the case when one or the other person

pushes the button for recording of the conversation.



8.2) What would be the consequences of person A’s consent to (a) being heard by

speakerphone in the presence of person C; (b) being recorded by person B; or

(c) being recorded by person C?

If party A gives consent to the presence of C or gives consent to the recording, such

recording may be admitted. It would not make a difference whether the recording was

done by B or C.



9.) Person A attaches a stealth recording device or software to person B’s cell

phone. Would the recordings be admissible as evidence?

The Higher court of Ljubljana276 ruled (on the basis of the stated judgement of the

Constitutional Court) that if the conversation is recorded without the knowledge of the

affected person, such an action has intervened in the exclusive right of the person to

dispose with their voice by themselves.

The Supreme Court277 also stated that in a civil procedure evidence obtained in an

unlawful way by unauthorized interception of conversation should as a rule278 be

inadmissible.

The legal reasoning for not allowing such evidence lies in the fact that in the case of

secret audio recording the record was taken in violation of personal rights. If such

evidence is performed at the main hearing with playing the track then the violation of

personal rights would once again be conducted. In this case the personal right could

outweigh the right to propose a piece of evidence and indirectly also the right of access

to justice.279



9.1)

Would it make a difference if person B’s cell phone were registered as

belonging to person A or would it make a difference if person B’s cell phone were

owned by B’s employer A? Would it be different if person A explicitly restricted

B’s use of their cell phone to professional use?

It would not make a difference to the question of the recording’s admissibility as

evidence if B’s phone was registered as belonging to their employer A or to some other



276 Judgment of the Higher Court of Ljubljana, No. VSL sklep I Ip 152/2013, 23.01.2013.

277 Decision of the Supreme Court of RS, No. VS4001673, 22.02.2011.

278 Because it is possible that some other right outweighs the right to privacy (right to private

property).

279 A. Galič, Praktični pogled na novi zakon o pravdnem postopku: Pravica do kontradiktornega

postopka..., Podjetje in delo, 1999, vol. 6-7, p. 1172.

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person. Also it would have no effect on the admissibility if the employer had restricted

the use of cell phone only to professional use.



10.) Person A steals from person B a letter written by person X. Can person A use

such letter as evidence?

The answer depends on the use of the principle of proportionality. When two rights

(the right to privacy and the right of access to court) are in conflict, both of them should

be considered. If such evidence in the form of a stolen letter is not taken, this could

result in a breach of the adversarial principle, but if such evidence is allowed by the

court, the right to privacy or the right to protection of personal data could be in

question. In such cases, the only solution is to use the so-called proportionality test in

such a way that the assessment of whether a restriction on the right has a legitimate

purpose, whether it is necessary and appropriate to for ensuring the right, and whether

the protection of one right outweighs the loss of the other.

Nevertheless, if the content of the letter is not personal then if the court decides to take

this evidence this would not constitute a new violation of human rights even though it

was obtained with violation of the right to property.280



10.1) Would there be a difference if person A finds such letter by accident?

If a person finds such a letter by accident, the person has the obligation to try to find

the owner of such a letter if the finder thinks that the owner lost the letter. If the finder

does not try to return such a letter with the knowledge that the letter was lost, the court

should decide regarding the principle of proportionality which right should be more

protected over the other.



10.2) Would there be a difference if person A finds such letter in a garbage bin?

If such a letter was thrown out in explicitly obvious circumstances such that it was

clear that the owner of the letter would no longer use such a letter, the letter could be

admissible as evidence.



11.) What are the consequences of an accidental e-mail forwarding as to the

admissibility of such correspondence as evidence? Would there be a

difference if the forwarded e-mail contained a disclaimer interdicting its use

by persons other than its proper addressee.

This case should probably be dealt with in the same way as accidentally obtained

letters. If the e-mail contains personal data, the proportionality test should be applied. A

disclaimer forbidding the addressee of a letter to disclose it would not give sole grounds

for the court not to allow the letter.



11.1) Is the addressee of your correspondence able to use it as evidence if it

contains a disclaimer banning its use for such purpose?

If an addressee is employed in the same organisation as the sender and there is a

privacy policy about the content, this would constitute a business secret. The party who

would be affected if such a correspondence were to be revealed should claim that this



280 Ibidem.

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evidence is a business secret. If the party claims that the data are regarded as a business

secret, then this party is obligated to explain why such a fact is a business secret.281 The

court should examine the question of whether to allow such evidence on the basis of

free assessment of evidence.

If there is no relationship between the sender and receiver of the e-mail, the court

would have to decide which of the constitutionally protected rights will take precedence

and need a higher level of protection. The free assessment of evidence means that the

judge is obligated to assess each piece of evidence particularly and all the evidence

together with a conscientious and careful assessment. So the ban does not give the court

grounds not to allow such a letter as evidence.



12.) Person A took a polygraph test for the purpose of a police investigation. Are

the results of such a test admissible in a civil case if presented by person A?

What if the opposite party in the civil procedure suggests that the court

obtain such results from the police or a criminal case?

According to the Slovenian Criminal Code polygraph tests are not allowed as

evidence.



12.1) Would a self-ordered polygraph test by a certified commercial provider be

admitted as evidence? Can such a certified commercial provider later be

summoned to testify as a witness in a civil case about the test?

No, it would not be admitted as evidence. We could draw the analogy with private

opinions about which academics or professionals from a particular area of expertise

prepare upon the order of the party on substantive and procedural issues. Such opinions

are then submitted to the court by parties. These opinions are not regarded as expert

opinions but merely as a part of the parties’ arguments.282 If the opinion is prepared

according to a party’s order before the procedure starts and the opposing party objects to

the opinion, then the court will consider such an opinion as a part of the party’s

arguments and not as evidence. Such an expert who prepared an opinion is not regarded

as an expert acting as a court assistant, but is a helper to the party and consequently the

provisions of CPA for experts do not apply.283



12.2) Company A performed a routine alcohol test on their employees. Would the

results be admissible as evidence? Would it be different if performed by an

authority for health and safety? Would it be different if performed by a

third outsourced impartial certified person (e.g. medical personnel)? Would

it be different if it was a polygraph test?

According to the Slovenian law that regulates safety and health measures at work

place (Zakon o varnosti in zdravju pri delu (ZVZD-1))284 the employer is authorised to

demand a routine alcohol test from the worker if there is reasonable grounds for

suspicion that the worker is drunk (Art. 5 ZVZD-1). The test shall be performed by an



281 Decision of the Higher Court of Ljubljana, No. VSL sodba I Cpg 708/2013, 21.11.2013.

282 V. Rijavec, Dokaz z izvedenci, Podjetje in delo, 2012, vol. 6-7.

283 Decisions of Supreme Court of RS, No II Ips 780/2006, II Ips 278/2004, II Ips 381/2009 and

others.

284 Official Gazette of the RS, No. 43/11.

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adequately qualified person. This evidence would be admissible if the test were

performed the right way, according to the prescribed procedure and with the worker’s

consent. In this case such evidence would not violate the right to privacy. According to

par. 3 of Article 15 of the Constitution of RS human rights shall be limited by the rights

of others and in cases foreseen by the Constitution. Workers’ right to privacy protection

and personal rights is limited with the obligation of the employer to enable safety and

health conditions for workers. The results of the test would be admissible if the test

were performed by the employer according to the prescribed procedure and with the

worker’s consent. If the worker declines to take the test the employer may order the

worker to give a blood sample at a hospital. If the worker still refuses to take this test

the proper disciplinary procedures according to the Slovenian law on the employment

relationship may be imposed on such a worker. However, the party may always propose

the nomination of an expert as evidence on this subject.

It does not affect the admissibility whether the testing is done by health authorities or

medical personnel.



13.) Would recordings of stealth CCTV at the workplace be admissible as

evidence? Would it be different if it recorded video and audio? Would it be

different if it were not stealth?

If the video surveillance is taken at the work place, the audio or video recording may

be taken only in exceptional cases, when this is necessary for the safety of people or

property or protection of secret data or a business secret and this aim could not be

achieved by milder means. The video recording may be taken only for those rooms

where the described interests must be protected. Also the employer must properly

inform workers that they are being recorded (Art. 75 Personal data Protection Act –

ZVOP-1). Stealth recording, disregarding the stated interest and procedure, would

constitute an offence according to ZVOP-1 and a criminal act of unauthorised video

recording according to Slovenian Criminal Code.

Workers have rights to privacy at their working place and the question of protection of

privacy in the relationship of employer and worker must be treated as most important.

Namely, this relationship represents a conflict between the interests of an employer who

has the right to ownership over the means (also the right to surveillance) on one hand,

and on the other hand the legitimate interest of the employed person, who rightfully

expects certain degree of privacy, confidentiality, and partial independence.

Such a stealth recording would be admissible, but the court would, on the basis of free

assessment of evidence, evaluate such evidence in terms of assessment of each piece of

evidence separately and all evidence together within the framework of a proportionality

test between different constitutionally ensured rights. There would be no difference if

such a recording were audio or video.

If the recording is not stealth, then the workers are informed that they are being

recorded and such a recording would be admissible at the court.





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13.1) Would the rightful owner of legal CCTV recording be obliged to make such

a recording available at the court’s request in civil or commercial cases?

Would the court be able even to ask for it?

Persons other than the parties may be ordered to submit documents only if such an

obligation is imposed upon them by the law, or if the contents of a document to be

submitted relate both to such a person and to the party adducing it as evidence. The

third party has a right to give a statement on this matter, prior to the passing of a court

decision ordering a third party to deliver a document (Art. 228 CPA).

If a third person denies the obligation to produce the document, the decision as to such

obligation shall be given by the civil court. In this case the court may produce evidence

to determine the truth of this assertion. This special proceeding may result in issuing the

court decision, ordering the third party to deliver the document which is an enforcement

title. In this procedure the party must prove that the third party is in possession of such a

document and that this party is obliged to deliver it. The third party has the right to file

an appeal against the court decision. The final decision may be enforced according the

provision of Slovenian law on enforcement and security (Zakon o izvršbi in

zavarovanju) only if the decision has become executable and the due date for volunteer

submission of the document has expired.



14.) Are DNA tests coercively enforceable for family cases within your legal

system? What about in other civil and commercial cases?

No, DNA tests may not be coercively enforced in family and other civil cases.

However, if the party upon which the DNA test is proposed does not consent to this test,

such party will be presumed to be the father.285 According to Article 262 of the CPA

there are no coercive measures allowed against the party for not appearing for the

examination or testifying. However, the court decides considering all the circumstances

what effect such an act of the party will have and what meaning it would have when

assessing all the evidence.



15.) The requested court obtains evidence from a witness by coercive measures is

not allowed in the requesting country. Would evidence be admissible (answer

from the perspective of requesting country)? What if the requesting country

asks for coercive measures to be applied against a witness which are not

allowed in the requested country (answer from the perspective of requested

country)?

There is a general opinion in theory that the requested court is not obliged to make

assessment if the coercive measures are in line with the law of the requesting court. The

use of coercive measures is evaluated upon the regulation in the law of the requested

court. However, coercive measures against witness are allowed according to the

Slovenian CPA. Although the requested court uses coercive measures which are not

allowed to be used according to the law of the requesting court, the assessment of such

evidence remains in the hands of the requested court.286

The rule of lex fori for coercive measures means that the requesting court may not

impose the coercive measures foreseen in the law of the state of the requesting court.



285 Decision of the Supreme Court of RS, No. Sodba II Ips 331/2005, 09.06.2005.

286 N. Betetto in A. Galič, N. Betetto, Evropsko civilno procesno pravo, op. cit., p. 50.

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Coercive measures according to the law of the state of the requesting court would not be

applicable in the state of the requested court. However, the requested court remains

authorised to assess what meaning should be attributed to such an act.



16.) A court in Member State A conducts criminal proceedings. The injured party

claims damages on which the court decides within an adhesive procedure. In

connection with the amount of property damage it is necessary to examine a

witness in Member State B, where the injured party was employed prior to

the occurrence of the damaging event. Does the concept of adhesive procedure

exist in your legal system? If yes, can Regulation 1206/2001 be applied

concerning the taking of this evidence? Answer from the perspective of

Member State B!

Yes, the concept of the adhesive procedure does exist in Slovenian legal system. The

adhesive procedure is a procedure affiliated to criminal procedure and for which the

provision of CPA and the law of obligations apply. It would be possible to hear a

witness in Slovenia according to Regulation 1206/2001, provided that the preconditions

for the application of Regulation 1206/2001 are met.