1.1. Key founding texts
Key founding texts on the administrative jurisdictional order are the Constitution of the Republic of Slovenia and the Administrative Dispute Act (Zakon o upravnem sporu, ZUS-1).
1.2. Organisation and competence of the administrative jurisdiction
1.2.1. General organisation of the administrative jurisdictional order
Is administrative justice rendered by specialized courts or by specialized chambers set within jurisdictions with a general competence? Does the administrative jurisdiction include several levels of jurisdiction (first instance, appeal, cassation)? Are there specialized administrative courts?
Generally, there is a specialized first instance court – the Administrative Court and the second and last instance court – the Supreme Court, with justices organized (also) in the Administrative Department. The latter decides on appeals in some specific cases (ordinary legal remedy) and revisions (extraordinary legal remedy, based on a special leave) against decisions adopted in the first instance. In some administrative disputes, when specifically provided so by the law, the Supreme Court is the court of first and last instance (e.g. state elections and competition disputes). The Constitutional Court has a limited competence in the administrative justice system, since it decides on constitutional complaints against judgements of the Administrative Court or/and the Supreme Court, but only if a party claims that final judgement violates his/her human rights and fundamental freedoms protected by the Constitution or relevant international treaties.
1.2.2. Internal organisation of administrative courts and composition of the bench of judges
Are administrative courts organized in chambers or divisions? Are these chambers or divisions specialized? Are there several degrees of formation of the court (single judge, collegiate panels with three, five ... judges, full court)?
The Administrative Court has its seat in Ljubljana. There are also three external departments in Maribor, Celje and Nova Gorica with smaller number of judges. The Administrative Court in Ljubljana has 3 departments (chambers) for the following subject-matters: (1) public finances; (2) property cases and environmental law and (3) constitutional rights (including asylum and immigration cases). Chambers consist of 4 to 6 judges. They Administrative Cort as a rule decides in panels of three judges. A single judge can decide in matters determined by law, e. g. if the case does not raise any difficult factual and/or legal questions or important new points of law not already established, etc.
At the Supreme Court there are 7 justices within the Administrative Department that decide on matters in panels of three judges. There is no specialization between the justices or panels (all justices are obliged to rule in all matters falling within the competence of the Supreme Court).
1.2.3. Do administrative courts have advisory powers (advice to the administration, government, parliament, etc.)?
1.2.4. Tools and documentary resources available to judges
Judges are as far as possible equiped with all necessary tools and documentary resources they need to decide the cases of administrative dispute. Search engines on the web sites (sodnapraksa.si and IUS-INFO) help them find relevant national legislation and case-law. Judges also search for relevant legal sources through web-sites of the national Constitutional Court, Court of Justice of the European Union, European Court for Human Rights, etc. The Supreme Court has its own library, with good resources of legal literature. The latter provides for foreign data-bases of legal articles, case-law, etc.
1.3. Status of administrative judges
How is the recruitment of judges organised (competitive exam, political appointment, peer election…)? What are their statutory guarantees while in office, particularly in terms of independence?
Judges are recruited on the basis of their qualifications in a public and competitive procedure. The Judicial Council as an independent, constitutionally established body is responsible for the selection process by nominating to the National Assembly (i.e. the Parliament) candidates it deems most suitable for the vacant post of a judge. Judges are than elected by the National Assembly. The appointment of justices to the Supreme Court is is slightly different, since even the persons already holding the position of a judge can only be appointed to the Supreme Court by the National Assembly upon the nomination of the Judicial Council.
The independence of Slovenian judges is guaranteed by the Constitution. (Some) institutional safeguards with regard to the independence of judges are the following: (1) the system, laid down by the Constitution, of judges being elected by the National Assembly upon the nomination of the Judicial Council as a separate constitutional authority; (2) constitutionally guaranteed permanence of office; (3) the Constitution guarantees that judges have a majority in the Judicial Council and that those of this authority’s members that come from their ranks, are elected by their peers; (4) statutory advisory role of personnel councils (members of which are judges) in the process of recruitment, selection and promotion of judges; (5) constitutionally guaranteed judicial immunity; (6) a judge’s right to appeal to the Judicial Council when he/she considers his/her independence or the independence of the judiciary has been infringed.
2.1. Types of plea
What kind of petition may applicants file before administrative courts? May applicants only request the invalidation of an administrative act? May administrative courts rule on compensatory claims?
According to the Administrative Dispute Act (hereinafter ADA-1) an administrative dispute begins with an action or other legal remedy, if so provided by the law. However an applicant may also file an application for interim measures.
An action may include the following claims:
- annulment, issuing or amendment of a particular act,
- establishment that the individual act has illegally infringed on the human rights or fundamental freedoms of the claimant,
- prohibiting the continuation of the individual act,
- elimination of the consequences of the individual act.
In an administrative dispute the claimant may also claim the return of seized items, and claim compensation for damages caused by the execution of the contested administrative act (according to Public Employees Act the Court in some cases does not annul the administrative act if its illegality is established, but awards the claimant the financial compensation).
2.2. Emergency procedures
Are there any emergency procedures available before administrative courts? In the affirmative, do they cover the whole field of administrative law or do they concern only specific areas of administrative action (individual freedoms, public procurement, etc.)?
Emergency proceedings in which the periods for issuing a court ruling is shorter then usually in administrative disputes have to be determined by the Act of Parliament. Such cases are an exception, but several exist that regulated for example in the following acts: Courts Act, Judicial Service Act, Notary Act, Voting Rights Register Act, Local Government Act, Electronic Communications Act, Referendum and Public Initiative Act, National Assembly Elections Act, Free Legal Aid Act, Personal Data Protection Act, Public-Private Partnership Act, Information Commissioner Act, International Protection Act, etc.
2.3. Procedural principles before administrative courts
What are the rules governing the conduct of litigation before administrative courts? What are the guarantees offered to litigants? What are the principles governing the relationship between judges and litigants?
According to the Slovenian Constitution everyone is guaranteed equal protection of rights in any proceeding before a court. Furthermore everyone has the right to have any decision regarding his rights, duties, and any charges brought against him made without undue delay by an independent, impartial court constituted by law.
In an administrative dispute, the provisions of the Act regulating civil procedure are applied, unless otherwise provided by the ADA-1.
Therefore main trial hearing in the judicial review of administrative acts is governed by the same principles as main trial hearing in civil procedure. Fundamental principles thus derive from national legislation, which is in compliance with the European legal standards. Hence the proceedings are adversary in nature. This fundamental principle ensures that each party to the litigation shall be granted the opportunity to be heard on the opposing party's claims and submissions. Generally, the court decides upon the claim on the basis of an oral and public main hearing. Only under conditions specified by ADA-1, disputes may also be resolved without a hearing (in a closed session) on the basis of parties' submissions made in writing. When a judgement is announced after the main hearing, a presiding judge reads in open court the ordering part of the judgement and gives a brief statement of reasons. Even if the public has been exceptionally excluded from attending the main hearing, the ordering part of the judgement is always read out in open court. After the ordering has been read out, the court decides whether and if so to what extent the public is to be excluded from hearing the statement of grounds.
2.4. Reference standards for the control exercised by administrative judges
In relation to which norm (regulations, laws, international conventions, constitution ...) do administrative judges control administrative acts? Are they competent to control the conformity of laws and regulations with the Constitution (constitutional judicial review)? Are they competent to control the conformity of laws and regulations with international treaties (judicial review of international law)?
Judges are independent in the performance of the judicial function and they are bound by the Constitution and laws. This means that also the international treaties, ratified by the Parliament and being directly applicable in Slovenia, form the basis of judicial decision-making. If a court deciding some matter deems a law which it should apply to be unconstitutional, it must stay the proceedings and initiate proceedings before the Constitutional Court. The proceedings in the court may be continued after the Constitutional Court has issued its decision. Only the Constitutional Court decides on the conformity of laws and other regulations with ratified treaties and with the general principles of international law. Expception applies to questions of conformity of national legislation with European Union law, since the principles of supremacy and direct effect give any court the power not to apply national legislation contrary to European Union law and decide directly on the basis of these supranational legal norms.
2.5. Scope and nature of administrative judicial review
May administrative judges control all acts taken by the administration? Are certain acts exempted from this control?
There are no administrative acts or actions that are not open to review by the court (certainly not for the reasons of political sensitivity). The authority of Slovenian administrative judiciary to review the legality of individual acts and actions of administrative authorities is based on principle of separation of powers. This aspect is further elaborated in the right to judicial protection, which is one of the human rights, guaranteed (also) by the Constitution. Namely everyone has the right to have any decision regarding his rights, duties and any charges brought against him made without undue delay by an independent, impartial court constituted by law. The power of judiciary to review the acts and actions of administration is further detailed in Article 157 of the Constitution. Pursuant to this article a court having jurisdiction to review administrative acts decides the legality of final individual acts with which state authorities, local community authorities and bearers of public authority decide the rights or obligations and legal entitlements of individuals and organisations, if other legal protection is not provided by law for a particular matter. If other legal protection is not provided, the court having jurisdiction to review administrative acts also decides on the legality of individual actions and acts which intrude upon the constitutional rights of the individual. Article 157 of the Constitution therefore ensures that the executive power is subjected to independent judicial control of legality of its decision-making in individual matters. This provision also defines the relationship between an individual and the executive power and ensures the protection of an individual against it, as an individual and an administrative body in administrative dispute act as equivalent opponents.
Which degree of control is used by administrative judges? Does this degree of control vary according to the nature of the challenged act and/or the margin of appreciation left to the administration?
The judicial review of administrative acts and actions guarantees the protection of individual rights, that may be violated by such an act or action. It is necessary for a claimant to file an appeal against the administrative act before going to court, so that the administrative appeal, resolved within the administration itself is the first legal remedy available to the party. The administrative body of second instance decides on the appeal against administrative act, issued by administrative body of first instance. If it is stipulated by law that a complaint against a decision taken by an administrative body at first instance is excluded (single instance procedure), a party may appeal against the administrative act to the Administrative Court directly. In these administrative appeals there is a very broad examination of both factual and legal grounds and the administration is entitled to define and pursue the public interest in the case, as long as it doesn't violate rights or legally protected interests of the parties.
The judicial review by an administrative judge resembles these powers to a large extent, but has some limitations: the court can not decide on the correct determination of public interest, as long as it falls within the sphere of discretionary powers of the administration, determined by law in a given case. Exception to this rule can be found if it is established that the limits of discretion have been exceeded by the administration (therefore violating provisions of law) and if the discretion was misused for private or other partial interests non-compatible with the administration's obligation (only) to protect the public interest.
2.6. Dissident opinions
When judges disagree with a ruling, are they allowed to express a dissenting opinion? In the affirmative, may they express it in all cases?
The Administrative Court adopts a judgement or a decision (order) with a majority of votes. When a member of a panel deciding a case is overruled by the majority decision, his dissent is not indicated in the grounds of the decision, but it is only revealed in the voting minutes, that are not available to the parities (protected as an official secret). That practice applies to the all courts, other than the Supreme Court. On the other hand, dissenting opinions of the justices of the Supreme Court are possible also in administrative dispute as a means of public presentation of the views of individual justices. Also the decision of the vote in the panel is made public in accordance with the law.
2.7. Alternative methods of dispute resolution
Are there alternative dispute resolution methods? Please specify.
In an administrative dispute, the parties may conclude a settlement at any time, until the decision has been issued, but only in the Administrative Court itself. The settlement has to be clear and precise and should not offend public interest or public moral or should not be in conflict with legal interest of others. Currently there is no possibility to resolve administrative disputes by means other than by recourse to the courts. Namely the mediation is possible only in civil and commercial disputes.
2.8. Digitised procedures
Is there a specific digital procedure for the submission of claims?
The law provides for electronic applications, i.e. applications in electronic form and signed with a secure electronic signature verified by means of a qualified certificate. Electronic applications are submitted to the information system by electronic means. The information system automatically confirms to the applicant that the application has been received. The law also allows a written application to be submitted electronically or through the use of communication technology.
Currently only few procedures may be initiated via the internet or electronically: certain types of enforcement procedure, the submission of applications and the issuing of decisions in insolvency proceedings, and the submission of land register proposals.
3.1. Powers of administrative judges
May judges amend administrative acts by substituting their own analysis to that of the administration or may they only invalidate them? May they compel the administration to act in a specific way (power of injunction, penalties)?
Pursuant to the ADA-1 when the court annuls the contested administrative act, the competent authority must issue a new administrative act and in so doing it is bound by the legal opinion of the court regarding the application of substantive law and its positions on the procedure. If the authority issues a new administrative act which contradicts the legal opinion of the court or its positions on the procedure, the court may annul the administrative act and decide on the case by a judgement on the merits of the case, if this is permitted by the nature of the matter and if a reliable basis for this is provided by the undisputed facts established by the administration, or if the court established the facts of the case at the main hearing.
3.2. Impact and authority of administrative judgements
To whom do decisions rendered by administrative judges apply (absolute effect – erga omnes - of res judicata, relative effect of res judicata)? What criterion is used to choose between these two options?
Final decisions of the court become res judicata and produce effects only for the parties (inter partes authority). Rulings of the Supreme Court have the authority of a de-facto precedent as to the interpretation of the law in relation to lower courts, including the Administrative Court.
May rulings of administrative courts be challenged? What is the time limit for appeal? Before which authorities / jurisdictions can these rulings be challenged?
An appeal to the Supreme Court is allowed only in cases expressly determined by an act of Parliament.
An appeal may be lodged against a ruling passed in an administrative dispute if the Administrative Court itself established facts, which are different to those established by the administration, and if it changed on the basis thereof the contested administrative act (judgement on the merits of the case in full jurisdiction) or if the court decided on the basis of the Article 66 ADA-1 (establishment of the illegality of the act or action violating human rights or fundamental freedoms of a person). In such cases also the parties that cooperated in the administrative dispute of the first instance have the right to appeal. An appeal must be filed within fifteen days of the serving of a copy of the decision to the parties.
The parties may also file a request for revision against a final ruling issued at the first instance if the substance of the matter concerns the decision on a relevant legal issue or if the ruling of the court of first instance deviates from the case law of the Supreme Court with regard to the legal issue that is essential for the decision or if there is no uniform position concerning this legal issue in the case law of the court of first instance and the Supreme Court has not yet adjudicated on the matter or if there is no uniform position concerning this legal issue in the case law of the Supreme Court. A request for revision must be filed within thirty days of the serving of a final decision. In the leave is granted, the revision has to be filed within fifteen days.
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