Text file: 6412.txt
author: Mobb
downvotes: 3
end consideration date: 2015-01-13
id: '6412'
number comments: 5
number views: 3138
proposal type: Competent authority response
response: "Response from the Ministry of Justice\n1. Supervision of judges and prosecutors\n\
  At the outset, it should be pointed out that, although it would not impose a legal\
  \ duty on a public prosecutor to act in accordance with the wishes or instructions\
  \ of other persons, it would allow a public prosecutor to be unduly influenced or\
  \ pressured to act in a certain way in an individual case, contrary to the first\
  \ paragraph of Article 135(1)(a) of the ECHR, and would be contrary to Article 135(1)\
  \ of the ECHR. Article 135 of the Constitution of the Republic of Slovenia (hereinafter\
  \ referred to as the Constitution; Official Gazette of the Republic of Slovenia,\
  \ No. 33/91-I, 42/97 - UZS68, 66/00 - UZ80, 24/03 - UZ3a, 47, 68, 69/04 - UZ14,\
  \ 69/04 - UZ43, 69/04 - UZ50, 68/06 - UZ121, 140, 143, 47/13 - UZ148 and 47/13 -\
  \ UZ90, 97, 99). According to Article 135 of the Constitution, the Public Prosecutor's\
  \ Office is organised as an independent State organ or as a system of independent\
  \ State organs within the executive branch of power. Therefore, it would also be\
  \ incompatible with Article 135(1) of the Constitution for a legal regulation to\
  \ provide that the public prosecutor, when bringing or representing criminal charges,\
  \ is legally bound by a command, prohibition or other instruction, as this would\
  \ mean that it is not the public prosecutor who actually brings and represents criminal\
  \ charges on the basis of, and within the framework of, the Constitution, the law\
  \ and the adopted policy of prosecuting offenders, but that he is merely an extension\
  \ of the arm of someone else. This does not mean that internal control over the\
  \ work of the public prosecutor is not permissible in order to ensure the uniformity\
  \ of criminal prosecutions and the professional regularity and efficiency of the\
  \ exercise of the public prosecutor's function. Nor does it mean that the public\
  \ prosecutor is not obliged to comply with the general instructions on law enforcement\
  \ policy drawn up by the competent authority in accordance with the statutory provisions.\
  \ In view of the above, the Law on the State Prosecutor's Office (hereinafter referred\
  \ to as ZDT-1; Official Journal of the Republic of Slovenia, No. 58/2011, 21/2012\
  \ - ZDU-1F, 47/2012, 15/2013 - ZODPol, 47/2013 - ZDU-1G) in 173. Article 173 173\
  \ regulates the professional supervision exercised by the Supreme State Prosecutor's\
  \ Office over the work of district state prosecutors' offices by means of general,\
  \ partial or individual professional supervision of the work of state prosecutors'\
  \ offices and state prosecutors and prosecutorial staff, by means of examination\
  \ of files, registers and other documentation. However, the Ministry of Justice\
  \ (hereinafter referred to as the Ministry) is responsible for exercising judicial\
  \ supervision over the performance of the affairs of the public prosecutor's administration,\
  \ and may carry out such supervision directly or indirectly. The purpose of judicial\
  \ review is to review and assess the performance of the affairs of the State Prosecution\
  \ Service, as defined in the CPC-1, the State Prosecution Code and other regulations\
  \ governing the State Prosecution Service (Article 159(1) of the CPC-1). Direct\
  \ supervision is carried out, pursuant to Article 160(4) ZDT-1, through the Ministry's\
  \ employees designated by the Minister's decision on the exercise of supervision\
  \ (the Supervision Team). The Supervisory Group carries out supervision independently,\
  \ within the framework and on the basis of the Constitution, the law and other regulations.\
  \ In the course of judicial supervision, it is not permissible to interfere with\
  \ the independence of public prosecutors in deciding on a specific case in relation\
  \ to pre-trial proceedings, court proceedings and administrative proceedings before\
  \ other state bodies. However, indirect judicial supervision is exercised by the\
  \ Ministry, pursuant to Article 160(2) ZDT-1, over district public prosecutors'\
  \ offices through the head of the district public prosecutor's office or through\
  \ the Prosecutor General, and over the Supreme Public Prosecutor's Office through\
  \ the Prosecutor General.\nThe supervision of the performance of public prosecutors\
  \ is also provided for by other institutions provided for in the ZDT-1. These are\
  \ mainly disciplinary proceedings and the evaluation of the public prosecutor's\
  \ service. The Council of State Prosecutors adopts criteria for the quality of the\
  \ work of public prosecutors for the evaluation of the public prosecutor's service\
  \ and criteria for the prosecution performance of public prosecutors. The quality\
  \ criteria for the work of public prosecutors shall establish indicative criteria\
  \ for the assessment of the professionalism of the work of public prosecutors, including\
  \ the determination of the estimated time for the resolution of each type of case\
  \ and for typical procedural actions. The prosecution performance criteria for public\
  \ prosecutors shall determine the proportion of cases in a given time period which,\
  \ depending on the nature of the offence, the type of proceedings and the prosecution\
  \ policy, are expected to be resolved by deferred prosecution, settlement, penalty\
  \ order, summary proceedings, indictment, conviction, type and amount of sanction\
  \ imposed. Last but not least, Article 80 of the CPT-1 establishes as a breach of\
  \ the public prosecutor's duty the failure to achieve the expected level of performance\
  \ in terms of volume, quality or efficiency, or the expected time for a particular\
  \ procedural task, for more than three consecutive months for unjustified reasons.\n\
  The supervision of the work of courts or judges is basically regulated by the Courts\
  \ Act (hereinafter referred to as the Courts Act; Official Journal of the Republic\
  \ of Slovenia, no. 94/07 - Official consolidated text, 45/08, 96/09, 86/10 - ZJNepS,\
  \ 33/11, 75/12 - ZSPDSLS-A and 63/13) and the Judges' Service Act (hereinafter referred\
  \ to as the Judicial Service Act; Official Journal of the Republic of Slovenia,\
  \ No. 94/07 - Official consolidated text, 91/09, 33/11, 46/13, 63/13, 69/13 - corrected\
  \ and 95/14 - ZUPPJS15). Supervision over the implementation of judicial administration\
  \ matters is exercised by the President of the higher court, and in courts of all\
  \ levels by the President of the Supreme Court of the Republic of Slovenia and the\
  \ Supervision Service (Article 67(1) of the LC). It should be noted that in the\
  \ context of judicial administration and supervision over its implementation, the\
  \ independent position of the judge in deciding on cases assigned to him/her for\
  \ resolution may not be interfered with (Article 60(2) of the LC). The Ministry\
  \ may also request from the presidents of courts information and reports on the\
  \ status of the settlement of a particular case or a series of cases, or other information\
  \ it needs in relation to the work of the court in order to inform the public, to\
  \ answer questions from the National Assembly of the Republic of Slovenia, the National\
  \ Council of the Republic of Slovenia, the Government of the Republic of Slovenia,\
  \ the Court of Auditors of the Republic of Slovenia, the Constitutional Court of\
  \ the Republic of Slovenia, the Ombudsman and the President of the Republic of Slovenia,\
  \ or in order to carry out its responsibilities under the law regulating the organisation\
  \ and operation of courts or the law regulating the judicial service (Article 67a(1a)\
  \ of the Law on the Judicial Service).\nChapter VI.a \"Official supervision of the\
  \ work of judges\" (Articles 79a to 79c) of the CCJ comprehensively regulates the\
  \ exercise of supervision over the fulfilment of judicial duties under the law and\
  \ the Rules of Court, and covers all measures to remedy the causes of inadequate\
  \ scope, quality and professionalism of work, as well as backlogs of work. As in\
  \ the case of supervision of the functioning of the judicial administration, this\
  \ form of supervision may not interfere with the independence of the judge in the\
  \ performance of his or her judicial duties (Article 79a(2) of the CJA).\nIt should\
  \ also be pointed out that other institutions provided for in the CJA also constitute\
  \ a form of supervision over the performance of judges. These are, in particular,\
  \ the disciplinary procedure (Articles 80 to 100 of the CJA) and the evaluation\
  \ of the judicial service (Articles 28 to 36 of the CJA). In the preparation of\
  \ the evaluation of the judicial service, account is taken of the \"Criteria for\
  \ the quality of the work of judges for the evaluation of the judicial service\"\
  \ (http://www.sodni-svet.si/images/stories/merila_14_11_2013_a.pdf) adopted by the\
  \ Judicial Council, which, among other things, also cover the area of the efficiency\
  \ of judicial work, as they specify the number of cases (in relation to individual\
  \ areas of expertise) that a judge is expected to handle on an annual basis.\nFurthermore,\
  \ the Law on the Protection of the Right to a Trial without Undue Delay (Official\
  \ Gazette of the Republic of Slovenia, No. 67/12 - UPB) also constitutes a specific\
  \ form of supervision of the (timely) work of the courts, as it provides for specific\
  \ remedies (supervisory appeal, time-limit motion, request for just satisfaction)\
  \ in the context of which the correct and timely work of judges and courts is ascertained.\n\
  Article 288 of the Criminal Code (hereinafter: CC-1; Official Journal of the Republic\
  \ of Slovenia, No 50/12 - UPB) also defines the offence of unlawful, biased and\
  \ unfair trial, which certainly constitutes an additional form of review of the\
  \ work of judges in the context of criminal proceedings. However, judges, as officials\
  \ (Article 99(2)(1) of the Criminal Code), are also subject to criminal law review\
  \ for the offence of bribe-taking (Article 261 of the Criminal Code).\nIt follows\
  \ from the above explanations that the legislation already in force contains a considerable\
  \ range of forms of control over the functioning of courts and judges, as well as\
  \ public prosecutors and public prosecutors. Nevertheless, the Ministry of Justice\
  \ is considering and planning further amendments to the legislation which could\
  \ further improve the supervision of the work of judicial authorities and make it\
  \ more effective, subject, of course, to the principle of the independence of judges\
  \ and the judiciary and the independence of public prosecutors and public prosecutors.\n\
  \ \n 2. Exemptions from court fees and fair trials\nWith regard to the proposal\
  \ to look into the financial situation of the parties so as to exempt socially vulnerable\
  \ parties from the payment of all court fees, since socially vulnerable parties\
  \ cannot pay the high costs, we consider that the Law on Court Fees (hereinafter\
  \ referred to as ZST-1; Official Gazette of the Republic of Slovenia, no. 37/08,\
  \ 97/10, 63/13 and 58/14 - Decree of the European Court of Justice) allows financially\
  \ weaker parties to claim exemption, deferral and instalment of court fees, thus\
  \ ensuring the constitutional right to justice in the area of court fees in conjunction\
  \ with the constitutional principle of the welfare state. The conditions and procedure\
  \ for claiming exemption from, deferral of and payment in instalments of court fees\
  \ on the basis of a court decision are regulated in Articles 11 to 15 ZST-1. Thus,\
  \ according to Article 11 ZST-1, the full exemption from court fees is conditional\
  \ upon the party's eligibility for financial social assistance, which means that\
  \ a party who qualifies for financial social assistance may apply for full exemption\
  \ from court fees. A party who does not qualify for social assistance may not be\
  \ exempted from the payment of court fees in full, but may apply for partial exemption,\
  \ deferment and payment by instalments of court fees if payment in full or immediate\
  \ payment would significantly reduce the means by which he or she or members of\
  \ his or her family are supported. In deciding whether to grant partial remission,\
  \ deferment or payment in instalments of court fees, the court must carefully assess\
  \ all the circumstances and, in particular, take into account the financial situation\
  \ of the party and his or her family members, the value of the subject-matter of\
  \ the proceedings and the number of persons supporting the party. With regard to\
  \ partial fee waivers, the ZST-1 does not prescribe any numerical or quantitative\
  \ limits, which means that the court may order a party to pay a minimum amount of\
  \ court fees and thus adjust the fee obligation to the ability to pay of each individual\
  \ party.\nIn accordance with Article 12 of the CST-1, a party must apply separately\
  \ for the above-mentioned fee benefits and must attach to the application a written\
  \ declaration of his financial situation and the financial situation of his family\
  \ members, which he must submit in the prescribed form. Section 13 of the ZST-1\
  \ provides that a party may apply for a fee benefit until the expiry of the time\
  \ limit for payment of the court fee.\nFurthermore, the ZST-1 already provides for\
  \ a fee exemption by law for certain persons or for certain types of proceedings,\
  \ which means that it is not necessary to apply for it separately. For example,\
  \ the payment of court fees is exempted by law for employees in individual labour\
  \ disputes concerning the conclusion, existence and termination of an employment\
  \ relationship and for students in individual labour disputes against an employer\
  \ in connection with a personnel grant and temporary or intermittent employment.\
  \ Court fees shall also not be payable in proceedings for the enforcement of a claim\
  \ for maintenance of a child or spouse or non-marital partner and for the enforcement\
  \ of decisions of labour and social courts in labour disputes arising out of or\
  \ in connection with employment, etc.\nIn some situations, therefore, the legislator\
  \ has already provided for fee exemptions for reasons of protection of the weaker\
  \ parties in terms of property, social security, etc., while in all other cases\
  \ the parties who wish to obtain certain fee benefits are expected to actively pursue\
  \ those benefits in the course of the court proceedings. Moreover, the determination\
  \ of the parties' financial situation entails additional work and costs for the\
  \ courts, which is a further argument in favour of the current regime, according\
  \ to which the court decides on the tax benefits referred to in Article 11 ZST-1\
  \ only on the parties' motion.\nOn the basis of the foregoing, we consider that\
  \ the current regime of waiver, deferral and instalment of court fees is appropriate\
  \ and as such also allows financially weaker parties to enforce their rights before\
  \ the courts.\nWith regard to your proposal to enable the socially weak to receive\
  \ a fair trial by providing them with a free lawyer, we would like to explain that\
  \ in the Republic of Slovenia the Law on Free Legal Aid (hereinafter referred to\
  \ as the Law on Free Legal Aid; Official Journal of the Republic of Slovenia, No.\
  \ 96/04, 23/08 and 15/14 - Decree of the European Court of Justice) has been in\
  \ force since 2001, which comprehensively regulates the system of providing free\
  \ legal aid to socially weak citizens and other persons who are entitled to such\
  \ aid pursuant to the provisions of Article 10(1) of the Law on Free Legal Aid.\
  \ The ZBPP sets out the material and substantive conditions under which an individual\
  \ is entitled to free legal aid. According to Article 26 of the ZBPP, free legal\
  \ aid may be granted to an individual in the same case in the form of legal advice,\
  \ legal representation by a lawyer, as well as in the form of exemption from the\
  \ costs of court proceedings. An application for free legal aid may be submitted\
  \ to the competent court or to the district court in the area of the applicant's\
  \ permanent or temporary residence or registered office. The funds necessary for\
  \ the provision of free legal aid are provided to the competent courts from the\
  \ budget of the Republic of Slovenia. According to the 2013 Court Statistics, EUR\
  \ 4 945 521 were paid out in that year for the overall provision of free legal aid\
  \ under the CPLR.\nIn clarifying the proposal to exempt socially disadvantaged debtors\
  \ from compulsory enforcement, it is necessary to proceed from the fundamental principle\
  \ of contract law, according to which natural and legal persons enter independently\
  \ and freely into relationships from which they derive rights and obligations. In\
  \ the event of a breach of an obligation arising out of a legal relationship, civil\
  \ rights are protected by judicial proceedings, but judicial protection is not exhausted\
  \ by the issue of a judicial decision. Where the debtor fails to comply with what\
  \ is ordered by the judgment, the judgment must be enforced. The aim of enforcement\
  \ proceedings is the effective realisation of the creditor's claim and thus the\
  \ final realisation of the creditor's constitutional right to judicial protection,\
  \ but that aim cannot be achieved at any cost or by any means. In the case of a\
  \ debtor who is a natural person, it is necessary, for social reasons, to prevent\
  \ enforcement from jeopardising his livelihood. The Law on Enforcement and Insurance\
  \ (hereinafter referred to as the Law on Enforcement and Insurance; Official Journal\
  \ of the Republic of Slovenia, No 3/07, 93/07, 37/08, ZST-1, 45/08, ZArbit, 28/09,\
  \ 51/10, 26/11, 17/13, 45/14, 53/14, 58/14. US) therefore provides that execution\
  \ for the enforcement of monetary claims is not permitted on goods and rights which\
  \ are necessary to satisfy the basic needs of the debtor and persons whom the debtor\
  \ is legally obliged to maintain or which are necessary for the debtor to carry\
  \ out his/her professional activity, and that execution is possible only to a limited\
  \ extent on certain goods and rights (in particular, 79/14/14, Art. If the enforcement\
  \ officer, or another person involved in the proceedings, commits irregularities\
  \ in the execution, the debtor may, by application, request the court to rectify\
  \ the irregularities (Art. 52 of the ZIZ).\n 3. Transparency of court proceedings\
  \ and prevention of abuse\nYou also propose to allow appeals against final judgments\
  \ that have been handed down without the possibility of appeal. We would like to\
  \ clarify that the Slovenian Constitution requires only a single-appeal remedy (Article\
  \ 25), yet the Slovenian legal order provides for various ordinary and extraordinary\
  \ remedies. Thus, an appeal may be lodged against a judgment of a court of first\
  \ instance in criminal proceedings (and, under certain conditions, also against\
  \ a judgment of a court of second instance). In addition, there are two extraordinary\
  \ remedies, an application for protection of legality and a retrial, and, later,\
  \ a constitutional complaint and an appeal to the European Court of Human Rights\
  \ (where there is a violation of human rights or fundamental freedoms). In the light\
  \ of the above, we consider that the current remedies regime is adequate. We would\
  \ also like to point out that our regime does not provide for judgments to be handed\
  \ down without the possibility of appeal, as your proposal implies.\nThe transparency\
  \ of judicial proceedings and the prevention of abuses are therefore guaranteed\
  \ by remedies, both ordinary and extraordinary. In the civil sphere, remedies are\
  \ regulated by the Civil Procedure Act (hereinafter referred to as the Civil Procedure\
  \ Act; Official Journal of the Republic of Slovenia, No 73/07 - Official Consolidated\
  \ Text, 45/08 - ZArbit, 45/08, 57/09 - Decree of the US, 12/10 - Decree of the US,\
  \ 50/10 - Decree of the US, 107/10 - Decree of the US, 75/12 - Decree of the US,\
  \ 40/13 - Decree of the US. The constitutional right to judicial protection is guaranteed\
  \ by the possibility for everyone to defend their rights in court. This ordinary\
  \ remedy (the action), which is dealt with at first instance, is supplemented by\
  \ an appeal (the second ordinary remedy), which is based on the constitutional right\
  \ to a remedy, Article 25 of the Constitution. The appeal, which is decided by the\
  \ court of second instance, is regulated in Chapter 25 of the Law (Articles 333-366\
  \ of the CCP). In addition to judgments, judicial decisions may also be challenged,\
  \ in so far as the CCP does not expressly exclude an appeal (Article 363).\nExtraordinary\
  \ remedies are provided for in Chapter 26 of the Act: review (Article 367 of the\
  \ CPC), application for protection of legality (Article 385 of the CPC), action\
  \ for annulment of a court settlement (Article 392 of the CPC), reopening of proceedings\
  \ (Article 394 of the CPC). The Supreme Court decides on the review and the application\
  \ for protection of legality; the court constituted to decide on the action for\
  \ setting aside the court settlement is the court constituted by law to decide on\
  \ the subject-matter of the dispute on which the court settlement was concluded;\
  \ the court decides on the reopening of the proceedings at first instance, unless\
  \ the ground for reopening relates exclusively to the proceedings at second instance.\n\
  It is apparent from the foregoing that the system in force provides for access to\
  \ justice and for review of the professionalism of those decisions at several levels.\
  \ The system is then subject to constitutional review and, last but not least, to\
  \ international review. Thus, the whole mechanism ensures independent scrutiny of\
  \ professionalism, including by international standards.\n  4. the Judicial Service\n\
  - service of process in criminal proceedings\nYou suggest that a service for service\
  \ of process should be set up, as this would make it impossible for people to avoid\
  \ being served with a judgment. In your opinion, the serving officer should have\
  \ the power to sign the service slip himself and to write that service has been\
  \ effected if the person to be served does not wish to take delivery of the parcel.\n\
  Since you have not explained why it would be necessary to set up a judicial service,\
  \ we consider that the key point of your proposal is the possibility for the person\
  \ who refuses to be served to be able to sign instead of the person who refuses\
  \ to be served. In this respect, we would like to clarify that the Criminal Procedure\
  \ Act (hereinafter the CPC; Official Journal of the Republic of Slovenia, No 32/12\
  \ - Officially consolidated text, 47/13 and 87/14) already contains such a possibility.\
  \ As a rule, the certificate of service (service note) is signed by the recipient\
  \ and the person serving the service. The recipient shall write the date of receipt\
  \ in words on the service receipt. If the recipient is illiterate or unable to sign,\
  \ the person serving the service shall sign it and indicate the date of receipt\
  \ with a note as to why he signed for the recipient. If the addressee refuses to\
  \ sign the service document, the person serving the service shall write that on\
  \ the service document and indicate the date of service; service is thus effected\
  \ (Article 122 of the Code of Criminal Procedure).\n- service in legal proceedings\n\
  The petitioner's initiative concerning the effective service of judicial documents\
  \ cannot ignore the fact that the CPC establishes a comprehensive system of service\
  \ which has several subdivisions, according to the manner, type, service, type of\
  \ addressee, etc. In view of the complexity and comprehensiveness of the system,\
  \ we limit our reply below to the allegations in the proposal, i.e. to the case\
  \ of personal service on a natural person.\nArticle 132(1) of the CPC provides for\
  \ the methods of service, namely that documents shall be served by post, by an employee\
  \ of the court, at the court or in any other manner prescribed by law. The following\
  \ paragraph of Article 132 of the CPC provides that the court may, on the application\
  \ of the opposing party, order service to be effected by a legal or natural person\
  \ who carries out service of documents in physical form or by secure electronic\
  \ means as a registered activity.\nCourts mainly use a highly diversified postal\
  \ service organisation for service, as this is also the cheapest way. Only if the\
  \ parties propose a different method of service, other methods of service are used\
  \ and the applicant is required to deposit an advance on the costs of the special\
  \ service. The law further provides for service by an employee of the court, which\
  \ is carried out by court staff in the reception and dispatch of documents in an\
  \ organisational unit within the court administration (the service of documents\
  \ service; Article 49(1) of the Rules of Court; hereinafter: the Rules of Court;\
  \ Official Gazette of the RS, No 17/95, 35/98, 91/98, 22/00, 113/00, 62/01, 88/01,\
  \ 102/01, 22/02, 15/03, 75/04, 138/04, 74/05, 5/07, 82/07, 16/08, 93/08, 110/08,\
  \ 117/08, 22/10 and 48/11). This service is also used for personal service of court\
  \ documents, which, in accordance with the procedural rules, are served at the seat\
  \ of the court (Article 208(10) of the C.C.J.). If the addressee of the document\
  \ is present at the court or voluntarily comes to the court, the judge or other\
  \ court employee may serve the document directly on the addressee there, and the\
  \ addressee shall acknowledge receipt of the document by signing it. However, as\
  \ indicated above, the court may, on application by the other party, order service\
  \ to be effected by a legal or natural person who carries out service of documents\
  \ in physical form or by secure electronic means as a registered business. Further\
  \ rules and conditions are laid down in the Rules on the operation of persons performing\
  \ service of process in criminal and judicial proceedings (Official Journal of the\
  \ RS, No 35/13). The Rules lay down the rules for the operation of legal and natural\
  \ persons performing service of process in criminal and judicial proceedings selected\
  \ in a public procurement procedure for a particular court, the rules for the operation\
  \ of authorised service providers and the content of service notices and service\
  \ forms. Until a public call for tenders is issued, service of process is carried\
  \ out by authorised service providers, i.e. with the authorisation of the Minister\
  \ of Justice obtained on the basis of a regulation (Regulation on the conditions\
  \ to be fulfilled by persons authorised to carry out service of process and the\
  \ rules governing their operation; Official Gazette of the Republic of Slovenia,\
  \ No 32/2000). The Ministry of Justice maintains a register of service providers\
  \ which, pursuant to the Rules, is thus a collection of legal or natural persons\
  \ who meet the conditions of a registered courier service activity, or persons acting\
  \ as bailiffs or detectives, or detective companies, who have been granted a licence\
  \ by the Minister to carry out the business of service of documents on written request.\
  \ The service officers are obliged to comply with the procedural laws (the CPC and\
  \ the CCP, in accordance with the court's order) and the other provisions of the\
  \ Rules. In the event of unsuccessful service, they shall return the document to\
  \ the court without delay, together with a report describing the acts of service\
  \ attempted and the reasons for the unsuccessful service.\nThe court shall decide\
  \ which document is to be served and by what means, and shall appoint a suitable\
  \ agent for service, who shall be charged with obtaining proof of service. The necessary\
  \ decisions on particular questions of service are orders as to service which are\
  \ made by the judge. As regards the type of service, whether it is ordinary or personal\
  \ service, the law itself determines in which cases personal service (including\
  \ judgment) is required, since the legal consequences depend on correct service.\
  \ In other cases, the court decides whether the document should be served personally.\
  \ Otherwise, the parties are obliged to accept service of process. An addressee\
  \ who refuses or refuses to accept the document will be treated as if he had accepted\
  \ the document. The person serving the document shall record on the service form\
  \ the day, time and reason for refusing to accept the document and the place where\
  \ he left the document, and service shall be deemed to have been effected. Reception\
  \ may be validly refused only if service is effected in an unlawful manner or if\
  \ there is a ground for refusal.\nAn additional institution for ensuring the effectiveness\
  \ of service is the institution of the fiction of service, which is provided for\
  \ in Article 142 of the CCP. The fiction of service means that service is deemed\
  \ to have been effected (as if the addressee had personally received the document),\
  \ even though there is a possibility that the addressee did not acquaint himself\
  \ with the contents of the document served. The institution occurs when the addressee\
  \ is unable to be served by the person serving the document and is left a notice\
  \ to that effect, after which the 15-day period within which the document may be\
  \ withdrawn begins to run. Service shall be deemed to have been effected at the\
  \ expiry of the 15-day period. By leaving the document in the mailbox, the person\
  \ concerned is more likely to be aware of the document and to be able to react in\
  \ good time. If the addressee does not have a mailbox or the mailbox is unusable,\
  \ the document shall be returned to the court.\nIn the light of the system of service\
  \ of process in litigation (which, because of the reference to 'judgment' in the\
  \ second part, refers 'only' to personal service on a natural person), we consider\
  \ that the provisions of the CPL (with its by-laws) adequately regulate the service\
  \ of process, which, subject to the statutory prerequisites, do not excessively\
  \ interfere with the constitutional rights of citizens.\n \n "
response date: 2015-02-24
response due date: null
sent date: 2014-12-15
title: Supervision of judges and prosecutors
upvotes: 18
url: https://predlagam.vladi.si/predlog/6412
