Litigation in Slovakia
Civil proceedings in Slovakia
The new legal enactments, Civil Dispute Code (Act No. 160/2015 Coll.), Civil Non-dispute Code (Act No. 161/2015 Coll.) and Administrative Procedure Code (and Act no. 162/2015 Coll.) have replaced the old, valid from 01.04.1964 and often amended, more than 80 times, the Civil Procedure Code (Act No. 99/1963 Coll.). These laws regulate the procedure of the court and the parties/participants in civil proceedings to ensure fair protection of the rights and legitimate interests of the parties/participants, as well as education for the observance of laws and the fulfilment of obligations.
Codes have made big changes in many areas, for example in delivering or evidence.
For the time these new rules apply, the courts have become accustomed to new legislation and apply their provisions with the intention of speeding up individual proceedings and reaching a decision on the matter in the shortest possible time (depending on the capacity of the individual courts), which may cause the unknowing parties to the dispute/participants many complications that can not be oft solved anymore. Therefore, it is necessary to have its own attorney who will advocate and advise you whenever it is necessary, at best, at the beginning of the dispute, but certainly after the delivery of an action. Even in some cases, parties to the dispute must be compulsorily represented.
In civil proceedings (under Civil Dispute Code and under Civil Non-dispute Code), the courts hear and decide
a) private legal disputes (Civil Dispute Code) and
b) other private legal matters (Civil Non-dispute Code), if they are not negotiated and decided by other authorities under the law, which may involve a dispute between two or possibly several persons.
The courts may also commit several parties to the dispute to fulfilment. Civil proceedings is often the only way in which rights can be claimed, in particular where a third party is not interested in agreeing a settlement on a voluntary basis, whereby at a court every person has the right to seek its own protection if its own rights have been put at risk or violated.
The difference between these two rules, Civil Dispute Code and Civil Non-dispute Code is often considerable and it is necessary for the party to the dispute/participant to proceed according to each of these 2 procedural rules in a different way.
Unlike the dispute proceedings (͈substantive law dispute” in Civil Dispute Code) in which the party's interest is the highest, and the court is the element in the proceedings which only evaluates the evidence presented by the parties to the dispute, Civil Non-dispute Code is based on the fact that there is a group of such relationships in which the law dispute is not fundamentally expected (the interest is above the personal interest of the participant), and there is a need to help the state (court), balancing, seeking, maintaining and protecting the balance in the relationship. The reason is, for example, interest in protecting the family, personal status, higher interest of minor, protection of values in order to maintain legal certainty, and so on.
A/ Basic Principles of Civil Dispute Code
The basic principles on which the civil dispute process is built are mainly:
- the principles of fair protection of the parties' rights (the court should decide fairly),
- the principle of effective procedural protection (the court should decide on time)
- the principle of equality of parties irrespective of whether it is a citizen of the Slovak Republic or a citizen of a foreign state respectively a legal person established under the law of the Slovak Republic or a foreign state, irrespective of whether a residence or respectively, registered office of the proceeding´s party is in the territory of the Slovak Republic,
- the principle of prohibition of discrimination (everyone has the same procedural status),
- the principle of oral proceedings and directness, taking into account the current European trend of written procedure (the proceedings are essentially oral),
- the adversarial principle (procedural activity of the parties to the dispute is necessary, which are fundamentally obliged to assert the decisive facts and to identify the evidence to prove their claims; each procedural party has the right to acquaint himself/herself and to respond to the arguments and evidence of the counterparty)
- the principle of the public, which has primarily a control function (the public may be present at the hearing)
- the principle of economy of proceedings, which is specified in individual procedural law institutes in order to expedite proceedings and make the enforcement of rights more effective (the court should perform the acts best at 1 hearing), the principle of so- arbitration order is related with it, which means that the court determines the pace and course of proceedings, taking into account the principle of economy in order to fulfil the purpose of the law,
- the principle of free evaluation of evidence (no evidence is superior to others),
- the principle of disposition and negotiation (mainly the plaintiff disposes of the matter, but the court decides to allow the change),
- the principle of judicial and legal concentration (parties must submit all their evidence available at that time within the date appointed by the court); Civil Dispute Code does not establish the statutory terms for the judge (they are set exceptionally if it is expedient in connection of the nature of the case) and in accordance with the principle of arbitration order it allows the judge to concentrate certain procedural acts of the parties and to sanction non-compliance with procedural terms established by him/her in the form of procedural lapse i.e. loss of opportunity to perform the desired act.
- the principle of consumer protection (consumers are protected to a greater extent than other parties to the dispute);
- the principle of the uniform application of European Union law
- the principle of primacy of European Union law and the principle of direct effect of European Union law (the direct effect of the EU Regulations on the territory of Slovakia)
- the principle of interpretation of national standards in accordance with European Union law (interpretation under the ECtHR and the ECJ),
- an analogy legis and analogy iuris (an interpretative rule which allows the judge to use the provision with its content and purpose so similar that it is also desirable to assess legal matters which have not expressly been taken into account in the hypothesis of the rule of law and which allows the judge to decide fairly even in cases, if there is no express wording of the law), with which it is related
- the prohibition of denial of justice (denegatio iustitiae), that is, the judge can not negotiate the dispute and decide, if there is no explicit legal regulation in legal matter in hand.
It is explicitly stated in the Code that any legal norm of the new procedural Code will be interpreted in accordance with these principles.
These basic principles on which Civil Dispute Code rests constitute a framework of interpretative rules, according to which the legal norms of Civil Dispute Code are to be applied and interpreted and, in the alternative (i.e. unless Civil Non-dispute Code has no any other special interpretative rule), also of Civil Non-dispute Code and Administrative Procedure Code. The basic principles are equivalent and their order does not reflect their importance.
B/ Different Principles of Civil Non-dispute Code
It is true that provisions of Civil Dispute Code are applied to non-dispute proceedings regulated by Civil Non-dispute Code only if the Civil Non-dispute does not have a different regulation, i.e. does not contain regulation that is either inconsistent with the regulation in Civil Dispute Code or explicitly excludes the application of some provisions modified by Civil Dispute Code.
The main difference from legal regulation in Civil Dispute Code is that non-dispute proceedings leave a wider scope for the exercise of public authority in providing legal protection, since the courts of an official duty with the aim of protection of the rights of the participants while simultaneously pursuing the public interest are required to ascertain the true state of the matter. Although between participants of non-dispute proceedings the dispute of right is not characteristic, it does not exclude the fact that conflicts on the subject-matter of the proceedings can incur between them (e.g. in inheritance proceedings, education issues, maintenance or proceedings in certain matters of legal persons).
Non-dispute proceedings are not proceedings in which there is no dispute, but proceedings which are distinctive in character. Specifically there are these proceedings:
a) Proceedings for allowing to contract marriage,
b) Proceedings for divorce of marriage,
c) Proceedings for determining of nullity of marriage and determining of non-existence of marriage,
d) Proceeding for determining parenthood (for determining of paternity, but also for determining of mother),
e) Proceedings in the matter of care of the court of minors (the court decides in proceedings in the matter of care of the court of minors on a) name and surname of the minor; b) regulation of the execution of parental rights and duties; c) aliment of minor; d) contact with minor; e) guardianship; f) curatorship; g) handover of the minor; h) in minor matters about which parents can not agree; i) to approve the legal act of the minor; j) representation of the minor; k) the administration of the property of the minor; l) institutional care and other educational measures; m) protective measures; n) foster care; o) to take care of the child in alternative personal care; p) on other matters, as provided by a special regulation)
f) Proceedings for the return of a minor to foreign country in the event of unauthorized removal or retention,
g) Proceedings in the matter of adoption,
h) Proceedings in the matter of aliment of adults,
i) Inheritance proceedings,
j) Proceedings in matters regarding the declaration of death,
k) Proceedings for legal capacity (restriction of legal capacity of natural person, change of restriction of legal capacity of natural person or returning legal capacity of natural person),
l) Proceedings for pronouncing the admissibility of acceptance or keeping at medical facility,
m) Proceedings for appointing a guardian,
n) Proceedings in matter regarding the commercial register (proceedings for the registration of data in the commercial register (hereinafter referred to as „the proceedings for the registration of data“), proceedings for the harmonization of data in the commercial register with the actual legal status (hereinafter referred to as „the proceedings for the harmonization of data“) and proceedings for the cancellation of the registration of data in the commercial register (hereinafter referred to as „the proceedings for the cancellation of the registration of data"),
o) Proceedings in some matters of legal persons (the cancellation of legal person and the order for its liquidation; the appointment of the liquidator, his/her dismissal or replacement by another person, as well as the decision on the liquidator's remuneration; the petition to declare the resolution of the collective meeting of the cooperative for the annulment of the liquidation balance as invalid; invalidity of the company; the appointment of an independent expert for the examination of a draft of merger contract, an amalgamation contract or a project of split-up of a company; the assignment to convene a general meeting; the provision of information according to the rules of commercial law; the right of the shareholder to a reasonable cash payment; the examination of the draft contract determining the new share ratio; review of draft of share purchase contract),
p) Proceedings for the redemption of deeds,
q) Proceedings for notarial deposits.
The main change over the proceedings under Civil Dispute Code is the determination of the limit and measure of court activity in these proceedings. Civil-non dispute proceedings provides the court with enough space to find out the true state of matter. In this context, the court may and must intervene in evidence, thereby affects the procedural rights and obligations of the participants of proceedings. Consequently, this proceeding, in contrast to proceedings under Civil Dispute Code, is regulated by the following basic principles:
- investigation and search principle (the court must search evidence),
- the principle of protection of the public interest (e.g. family retention, protection of minors),
- the principle of official (one of the most characteristic principles of non-dispute proceedings, the protection of interests expressed by specific legal norms or the nature of non-dispute proceedings is ensured by the possibility of the court to proceed without the procedural motions of the participants of proceedings)
- the principle of material truth (the court is obliged to make other evidence as suggested by the participants if it is necessary to ascertain the true state of the matter, the fullest and most objective state of the matter, and therefore the court is not assessed only the state of the matter alleged by the participants as it is stated in the Civil Dispute Code).
C/ Major changes over the previous legislation which must be taken into account:
a) the simplified delivery of documents by the courts: 1.) it shall be delivered to the electronic mailbox if it is established; 2.) if not, to the address of the permanent residence; 3. if not, the court can find a real residence in the registers (e.g. Social Insurance Company, register of citizens etc.) 4.) if the court does not find another residence, the court will deliver the documents by a decree on the official board and on the website of the court, delivered after 15 days. All legal persons have mandatory established and activated electronic mailboxes, i.e. it can not avoid delivery.
b) submission of the parties: the submission can no longer be made either orally or by telefax. An electronic submission without authorization must be additionally documented within 10 days.
c) concentration (evidence): the courts may decide to disregard factual claims, evidence submissions, objections of party to a dispute, or denial of a counterparty's claims unless the party has not applied them in time (e.g. the document from 2015 available to party to a dispute in 2015 must be exercised in the first act, at the latest within the expiry of the period for the production of evidence specified in the order of the court). The parties' claims are considered to be indisputable if the other party has not explicitly denied them or effectively denied them, for example, he/she has not mentioned his/her own claim about the matter.
d) private expert opinion (evidence): the parties to the dispute may also submit a private expert opinion and may not expect a court expert's appointment.
e) obligation of the court to inform about the preliminary consideration of the case: The court is obliged to inform the parties to the dispute (in the Civil Dispute Code) about its legal opinion and so the party to the dispute already has knowledge at the beginning of the proceedings, which must be further substantiated.
f) proper opinion of the protest/submission: any submission must be sufficiently reasoned and comprehensible; whereby after the court has called upon it to eliminate defects of defective submissions and there is no elimination of defects, the court will not disregard such defective submission (e.g. it may refuse a protest and make the payment order lawful).
g) judgment by default: the court may also declare the judgment by default not in the favour of the plaintiff (for example, if he/she did not appear in hearing without proper justification).
h) witnesses: if one of the parties in the proceedings has proposed to hear the witness, he/she must also ensure his/her presence at the hearing. The court shall summon witness only if the party objectively can not secure the presence of the witness. For exceptional reasons, particularly because of the economy of the proceedings, the examination of a witness may be replaced by his/her written statement.
Because of the complexity and time-consuming, we therefore strongly recommend that a party to the dispute/participant has his/her own attorney in any legal proceedings, because without the professional assistance the party to a dispute/participant may lose a dispute that would otherwise will be won. And regardless of whether it is the determination of the right of ownership or the payment of the sum, or proceedings about decisions on personal status or on recurring performances to the future (e.g. maintenance).