Area: Pravosodje
Competent authority: MNZ
EZU URL: .nan
Initiative ID: 78
Initiative accepted and completed: '2013-02-04'
Initiative classified in EZU: .nan
Initiative forwarded in response: '2013-01-07'
Initiative published: '2013-01-07'
Initiative submitted: '2013-01-07'
Response from the competent authority: "Response of the Ministry of Justice and Public\
  \ Administration (MoJPA): Compensation liability of the insolvency administrator\
  \ who was dismissed from the insolvency proceedings by a court order to RETURN THE\
  \ FUNDS TO THE INSOLVENCY MASS HE RECEIVED AS A ''WORK AWARD''. The liability for\
  \ damages of the administrator on the one hand and the administrator's remuneration\
  \ for his work on the other hand are, in their characteristics, two completely different\
  \ legal institutions and should not therefore be confused. Both legal institutes\
  \ are already regulated by the current Act on Financial Management, Insolvency Proceedings\
  \ and Compulsory Winding-up (hereinafter: ZFPPIPP). The liability of the administrator\
  \ for damages, or his liability for the damage caused to creditors by a breach of\
  \ his obligations, is regulated by Article 102 of the Act on Financial Management,\
  \ Insolvency Proceedings and Compulsory Winding-up (hereinafter: ZFPPIPP). The administrator's\
  \ remuneration as remuneration for his work is regulated in Articles 103 and 104\
  \ of the ZFPPIPP. Under Article 104(3) of the ZFPPIPP, the administrator is not\
  \ entitled to remuneration if he is dismissed for breach of his obligations. The\
  \ liability for damages of a bankruptcy judge or a judge in bankruptcy proceedings\
  \ due to the CONFIRMATION of the bankruptcy administrator's illegal acts in the\
  \ court's decisions (prevention of corruption and waiver of immunity ). The proposal\
  \ is contrary to Article 134 of the Constitution of the Republic of Slovenia (see\
  \ also the decision II Cp 3736/2007 of the High Court of Ljubljana, and also: dr.\
  \ Deisinger Mitja, Commentary on Article 134 of the Constitution of the Republic\
  \ of Slovenia, in Commentary on the Constitution of the Republic of Slovenia - Supplement\
  \ A, ed.: Prof. Dr. \u0160turm Lovro, Faculty of State and European Studies, Ljubljana,\
  \ 2011, pp. 1300-1301), which guarantees judicial immunity. Judicial immunity is\
  \ regulated by Article 134 of the Constitution of the Republic of Slovenia. Paragraph\
  \ 1 provides that no one participating in a trial may be called to account for an\
  \ opinion he or she has given in making a decision in a court of law. Paragraph\
  \ 2 provides that a judge may not be detained, nor may criminal proceedings be instituted\
  \ against him or her, without the authorisation of the National Assembly, if he\
  \ or she is suspected of having committed a criminal offence in the exercise of\
  \ his or her judicial functions. Immunity is classified as substantive and procedural,\
  \ absolute and relative, professional and non-professional. Judicial immunity is\
  \ of a professional nature. It protects the legal security and independence of judges\
  \ in the exercise of their functions, in particular against possible arbitrary action\
  \ by the executive authorities, but also against unjustified persecution by individuals.\
  \ Judicial immunity guarantees the free and impartial exercise of judicial discretion.\
  \ Judicial immunity is both substantive (Article 134(1) of the Constitution of the\
  \ Republic of Slovenia) and procedural (Article 134(2) of the Constitution of the\
  \ Republic of Slovenia). According to the first paragraph, the responsibility of\
  \ the holder of judicial office for the opinion he or she has given in a court decision\
  \ is absolutely excluded - it is not only the final decision, but the totality of\
  \ the procedural and substantive decisions which led to the final result in the\
  \ individual judicial proceedings. Substantive immunity therefore excludes the direct\
  \ liability to damages of judges and constitutes an absolute bar to the commencement\
  \ of legal proceedings. Under Article 25 of the Constitution of the Republic of\
  \ Slovenia, everyone is guaranteed the right to appeal, inter alia, against decisions\
  \ of the courts. As regards the right to compensation for damage caused by a violation\
  \ of the right to a trial without undue delay, the payment of monetary compensation\
  \ under the principle of the State's objective (!) liability is regulated in the\
  \ framework of \"just satisfaction\" under Article 15 in conjunction with Article\
  \ 16 of the Act on the Protection of the Right to a Trial without Undue Delay (hereinafter:\
  \ the \"RPTDL\"). The inclusion in the new legislation of the possibility for the\
  \ COURT CONDUCT IN CHARGEING THE COURT ADMINISTRATOR FOR FAILURE TO COMPLY WITH\
  \ THE COURT PROCEEDINGS LAW AND INDEMNIFYING THE CLIENTS IN THE PROCEEDINGS, as\
  \ opposed to, that under the current law, a claim for damages for injury to a creditor\
  \ is a NEW PROCEEDING before a DIFFERENT (competent) court (non-transparency and\
  \ delay of proceedings). The primary point to note is that the proposal is legally\
  \ inconsistent in equating liability for damages with punishment - a legal inconsistency\
  \ that also appears in some of the proposals in other places. Compensatory liability\
  \ reflects a so-called civil sanction, not a criminal sanction. The common characteristic\
  \ of civil sanctions, which distinguishes them from criminal sanctions (sanctions\
  \ for crimes and offences), is that they always affect only the property of the\
  \ offender and not his/her personality (as in the case of imprisonment). Civil sanctions\
  \ are also characterised by the fact that they are imposed for the benefit of the\
  \ other party to the obligation (in this case, the creditors), who, in relation\
  \ to the person liable (the administrator), acquire the right (the legal possibility)\
  \ to require the conduct and behaviour which are the subject-matter of the civil\
  \ sanction. The purpose of liability for damages is not to punish the person liable\
  \ (the administrator), but to restore the situation to the way it was; if damage\
  \ has occurred, the purpose of liability for damages is to compensate the injured\
  \ party (the creditors) for the damage. The proposal that the same judge who presides\
  \ over insolvency proceedings should also rule in litigation on matters of the administrator's\
  \ liability for damages for the harm caused to creditors by the breach of his obligations\
  \ is inappropriate: - since the creditors must claim their entitlement to compensation\
  \ themselves or, in other words: it cannot be claimed on their behalf or by sanctioning\
  \ the administrator by the judge presiding over the insolvency proceedings, he is\
  \ not a party to the court proceedings; - because the administrator could be prevented\
  \ from having his liability for damages determined by an independent and impartial\
  \ court, contrary to the Constitution of the Republic of Slovenia, in cases where\
  \ the judge presiding over the insolvency proceedings has already detected the administrator's\
  \ misconduct (see the first paragraph of Article 23(1) of the Law of the Republic\
  \ of Slovenia, art.23). because it would delay the duration of the insolvency proceedings,\
  \ which must be the primary interest of a party to the insolvency proceedings. That\
  \ the court exercises control over the insolvency administrators and is also liable\
  \ to creditors for the misconduct of the insolvency judge. See reply to the second\
  \ proposal. That in the event of an appeal by a creditor in insolvency proceedings,\
  \ a bankruptcy chamber of three judges and two external (possibly 4-year law students\
  \ - experience) independent members of the chamber decides. The decision is to be\
  \ settled within 15 days and the insolvency administrator is to be asked to give\
  \ his opinion on the complaint lodged against his work within three working days.\
  \ If he fails to do so, he has pleaded guilty and the court - the chamber - proceeds\
  \ under criminal (damages) proceedings. In insolvency proceedings, the current Article\
  \ 128(4) of the ICAPF Act already provides for a chamber trial for the determination\
  \ of an appeal against a decision. The appeal is decided by a panel of three judges\
  \ of the Ljubljana High Court (see also Article 52(4) of the ZFPPIPP). Under the\
  \ current Article 125 of the ZFPPIPP, the High Court is already obliged to decide\
  \ on an appeal against a decision quickly, i.e. within 15 days in the case of an\
  \ appeal against a decision to initiate insolvency proceedings, and within one month\
  \ in the case of a second appeal against a decision to initiate insolvency proceedings.The\
  \ exercise of judicial power or the adjudication (trial) of rights and duties and\
  \ of individual charges is entrusted to judges under Article 23(2) of the Constitution\
  \ of the Republic of Slovenia (and may not be entrusted to e.g. law students). The\
  \ decision on a supervisory appeal is left to the higher court (not the district\
  \ court, where everyone is \"home grown\") within 15 days of the request. The proposal\
  \ to amend the ZVPSBNO so that supervisory appeals are decided by higher courts\
  \ is not acceptable. The Presidents of the District Courts are the \"full\" Presidents\
  \ of the Courts, appointed to run the administration of the Courts, they are competent\
  \ to make decisions, they have judicial authority and they are responsible for exercising\
  \ it. And it is not possible to consider that the second instance courts are better\
  \ placed to rule at first instance, after all they rule on appeals against failure\
  \ to grant time-limit motions, so they rule at second instance. Not only the district\
  \ courts, the county courts are also courts of first instance, and the higher courts\
  \ are courts of second instance. It would also be uneconomical to decide on a supervisory\
  \ appeal in such a way that the case would go to the second instance in the supervisory\
  \ appeal itself, even if the \"original case\" is dealt with at first instance,\
  \ and would mean that the case file would travel from the competent court to another\
  \ court, or that the President of the higher court has to communicate separately\
  \ with the judge of the court of first instance, thus possibly further allowing\
  \ for the contamination of the subsequent (second) judicial decision on the original\
  \ case (when the appeal will be decided as an ordinary appeal against the judgments\
  \ of first instance). Such judgments on the contamination of judges in general (even\
  \ court presidents are judges) are already known from the judgments of the Constitutional\
  \ Court of the Republic of Slovenia. The decision on the time-limit motion is assigned\
  \ to the Supreme Court and not to a higher court, as is the case now, within 15\
  \ days of the request. See the reply to the previous proposal. We would also point\
  \ out that if a time-limit motion is filed with the Supreme Court of the Republic\
  \ of Slovenia, it would be inappropriate and uneconomical to have the Constitutional\
  \ Court of the Republic of Slovenia rule on time-limit motions to delay court proceedings\
  \ at the Supreme Court of the Republic of Slovenia, even though it has been the\
  \ Republic of Slovenia's intention since at least 2007 not to burden the Constitutional\
  \ Court of the Republic of Slovenia with any more jurisdiction. And in some very\
  \ rare cases, the Supreme Court of the Republic of Slovenia also decides only at\
  \ both first and second instance (e.g. election disputes under Article 12 of the\
  \ Administrative Disputes Act). In this respect, it is quite clear that the specific\
  \ nature or role of the Supreme Court of the Republic of Slovenia must be respected.\
  \ The possibility of waiving the immunity of the dissenting judge when a supervisory\
  \ appeal is initiated, to be determined by the bankruptcy chamber ( 3+2 independent\
  \ members). The proposal is vague. However, if it means that the mere opening of\
  \ the supervisory appeal procedure should mean that the bankruptcy judge's immunity\
  \ is waived, this constitutes a clear unconstitutional automatism. After all, a\
  \ supervisory appeal does not always have to be directed against the inaction of\
  \ a particular judge, it can be directed against the inaction of the court (the\
  \ absence of judges and the case being taken over by a new judge), or even the inaction\
  \ of the legislator. And it is not clear what the proposed automatism is supposed\
  \ to pursue, what objective it is supposed to achieve. It follows that this is not\
  \ even a decision on the merits of a supervisory appeal, but a pure discretion on\
  \ the part of the proposed alternative chamber, which is not even a full judicial\
  \ chamber, and this discretion is in itself also contrary to the principle of the\
  \ rule of law laid down in Article 2 of the Constitution of the Republic of Slovenia.\
  \ See also, in part, the reply to the second proposal. That the insolvency administrator\
  \ has a minimum of two years' experience in the field of insolvency as a ''trainee''\
  \ before being granted a licence to act as an independent insolvency administrator\
  \ on the proposal of the Minister for Justice and Public Administration. In order\
  \ to obtain authorisation, the administrator must pass a demanding professional\
  \ examination (see Article 108(2) of the ICAPL). This means that authorisation to\
  \ act as administrator can only be obtained by a person who has the relevant expertise\
  \ to perform that function and that anyone holding such authorisation is suitably\
  \ qualified to perform those tasks. If, in the court's judgment, the individual\
  \ administrator is not sufficiently qualified or does not perform his or her duties\
  \ diligently and with due care, the court must dismiss the administrator and require\
  \ that his or her authorisation to perform that function be withdrawn (see Articles\
  \ 118 and 119 of the ICAPF). The amendment to the ZFPPIPP-C has also supplemented\
  \ the regulation in such a way that, pursuant to Article 116(4) of the ZFPPIPP,\
  \ in insolvency proceedings over a company which is a large company under Article\
  \ 55 of the Companies Act, only a person may be appointed who, prior to his appointment,\
  \ has performed the duties and responsibilities of an administrator for at least\
  \ two years."
Text file: 78.txt
Title: "Proposal to amend the insloven\u010Dina law"
URL: https://www.stopbirokraciji.gov.si/pobuda/?st=78
