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Interim and precautionary measures - Slovenia

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TABLE OF CONTENTS

1. What are the different types of measures? 1.
2. What are the conditions under which interim measures may be issued? 2.
2.1. Procedure 2.1.
2.2. Substantive conditions. 2.2.
3. Object and nature of such measures 3.
3.1. What types of assets can be subject to such measures? 3.1.
3.2. What are the effects of such measures? 3.2.
3.3. What is the validity of such measures? 3.3.
4. Is there a possibility of appeal against the measure? 4.

 

1. What are the different types of measures?

Interim measures are precautionary measures that are limited in time and designed either to preserve the status quo or establish a new, provisional situation in order to allow the effective execution of a creditor’s claims at a later date (measures of a protective nature) , or to avert serious and damaging consequences and the threat of violence (measures of a regulatory nature).

In accordance with the Execution of Judgments in Civil Matters and Insurance of Claims Act (Zakon o izvršbi in zavarovanju - Official Gazette of the Republic of Slovenia, No 51/98 et seq.) , interim measures may be divided into measures to safeguard pecuniary claims and measures to safeguard non-pecuniary claims.

Interim measures to safeguard pecuniary claims include all measures which can be used to achieve the safeguarding aim and which, as regards the goal being pursued, are of a purely protective nature. By way of example, the Act lists the following types of interim measure for safeguarding pecuniary claims:

  1. a measure banning a debtor from making free use of movable property, and ordering the safekeeping of such property;
  2. a measure banning a debtor from transferring or mortgaging his or her real estate or rights in rem to real estate that are registered in his or her favour, with that ban being recorded in the land register;
  3. a measure banning a debtor of the debtor from paying claims or handing over property to the debtor and banning the debtor from receiving property, collecting claims or making free use of them;
  4. an instruction to an organisation dealing in payment transactions to refuse payment from the debtor’s account to the debtor or another person on the debtor's instructions of the sum of money for which the interim measure is issued.

Measures to safeguard non-pecuniary claims include all measures which can be used to achieve the safeguarding aim and which, as regards the goal being pursued, are of a protective or a regulatory nature. By way of example, the Act lists the following types of interim measure for safeguarding non-pecuniary claims:

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  1. a measure banning the transfer or mortgage of the movable property to which the claim refers and ordering the safekeeping of such property;
  2. a measure banning a debtor from transferring or mortgaging the real estate to which the claim refers, with that ban being recorded in the land register;
  3. a measure banning the debtor from doing anything that might cause damage to the creditor or banning him or her from changing anything in the property to which the claim refers and imposing a fine in the event of an infringement of that ban;
  4. a measure banning a debtor of the debtor from handing over to the latter the property to which the claim refers;
  5. payment of compensation for lost salary to an employee while a dispute is ongoing over the legality of a decision terminating his or her employment, where such compensation is necessary to maintain the employee and persons whom he or she is legally bound to maintain.

2. What are the conditions under which interim measures may be issued?

2.1. Procedure
Is it always necessary to apply for a court order authorising the measure?

Only courts have the power to issue interim measures.

What court has competence for ordering such measures?

Where the proposal for an interim measure is presented in the course of court proceedings, the power to order such measures rests with the local court before which the proceedings have been brought.

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However, if the proposal for an interim measure is presented before court proceedings have been instituted, the decision on that proposal is a matter for the local court which was competent to decide on the proposal for execution. So, in such cases, the question of which court has local jurisdiction to issue interim measures depends on the object to be safeguarded. In the case of movable property, local jurisdiction lies with the executing court in whose territory the property is situated or in whose territory the debtor is permanently or temporarily resident. In the case of pecuniary claims, intangible securities or other property rights belonging to the debtor, jurisdiction generally lies with the court in whose territory the debtor is permanently resident or established. In the case of shares in a company, local jurisdiction lies with the court in whose territory the company has its registered office. In the case of real estate, local jurisdiction lies with the court in whose territory the real estate is situated.

Is it mandatory to be represented by a lawyer?

No.

What is the role of the intermediaries such as enforcement agents or bailiffs?

The role of enforcement agents in the procedure is to take direct action to secure movable property (e.g. take it into safekeeping or draw up an inventory) or to ensure the debtor performs certain acts or services.

Please provide a scale of costs for each type of measure.

The costs for issuing any type of interim measure consist of the court fees and payment for the work of the enforcement officer (if the measure concerns movable property or requires the debtor to perform or refrain from certain acts).

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The court fees are laid down as follows:

- for filing an application for an interim measure - SIT 1 900,

- for issuing an interim measure - SIT 1 900.

Payment for the work of the enforcement officer depends on the type of action that has to be taken or on the amount of the claim to be safeguarded. A fixed amount of SIT 12 500 is payable for tasks carried out by the enforcement officer in cases where the debtor is required to perform, allow or refrain from certain acts. However, if those tasks take more than one hour, a further SIT 2 500 is payable for each additional half hour. Payment for drawing up an inventory of movable property depends on the value of the claim: for example if the claim is worth between SIT 150 000 and SIT 1 000 000, the fee is SIT 40 000; if the claim is worth between SIT 1 000 000 and SIT 25 000 000, the fee is SIT 75 000. Where movable property is taken into safekeeping, the fee depends on the weight of the items and how long they are kept. For example, the fee for keeping goods in closed premises is SIT 100 for each seven-day period commenced and for each 100 kg or part thereof.

2.2. Substantive conditions.

A court will issue an interim measure to safeguard a pecuniary claim where the following conditions are met:

  1. the creditor demonstrates the probability that a claim exists or that a claim will arise vis-à-vis the debtor; and
  2. the creditor demonstrates that there is a probable risk that assets will be transferred, concealed or otherwise disposed of, making it impossible or very difficult to enforce the claim (subjective risk).

A court will issue an interim measure to safeguard a non-pecuniary claim where the following conditions are met:

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1. the creditor demonstrates the probability that a claim exists or that a claim will arise vis-à-vis the debtor; and

2. the creditor demonstrates the probability that at least one of the following assumptions can be made:

  • there is a risk that enforcement of the claim will be impossible or very difficult (objective risk) ;
  • the measure is necessary to prevent the use of force or the occurrence of serious damage liable to compensation;
  • if, in the course of the procedure, the interim measure turns out to be unfounded, the debtor will not suffer any worse consequences than those that would have arisen for the creditor had the interim measure not been issued.

In neither of the above cases (pecuniary or non-pecuniary claims) is the creditor required to demonstrate any risk if he or she is able to demonstrate the probability that the debtor would suffer only minor damage as a result of the proposed measure. However, in both cases a risk is deemed to exist if the claim would have been enforced abroad.

The court may also issue an interim measure where a creditor has not demonstrated the probability that there is a claim and a risk if, within a prescribed time-limit, the creditor lodges a sum fixed by the court as a guarantee against any damage that the debtor might suffer as a result of the interim measure being issued and executed.

3. Object and nature of such measures

3.1. What types of assets can be subject to such measures?

Any of the debtor’s assets may be subject to interim measures, e.g. money in bank accounts, movable property, registered vehicles, real estate and other property rights.

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3.2. What are the effects of such measures?

The court order issuing the interim measure has the effect of an execution order. It allows intervention only in the debtor’s sphere of interests, not in that of any third party. The issue of an interim measure does not therefore give rise to a lien on the object to be safeguarded.

Accordingly, where for example an interim measure prohibits a debtor from making free use of the object to be safeguarded, this does not prevent legal intervention by another person in respect of that object (e.g. in execution procedures). Should the debtor disregard an interim measure of this kind, the only consequence is that the creditor is entitled to challenge legal acts that cause him or her harm, in accordance with the general rules of the law of obligations. Persons acquiring property which the debtor is not free to use are protected if they acquired it in good faith (they did not know and could not have known that such an act caused harm to the creditor). If the person acquiring the property did not acquire it in good faith, the legal act ceases to have an effect solely vis-à-vis the creditor (plaintiff) and insofar as is necessary to pay off the creditor’s claim.

Where the debtor infringes an interim measure, he or she is also criminally liable for the offence of harming another’s rights. The executing court may also impose a fine on a debtor who infringes an interim measure. On the other hand, the debtor has the right to claim compensation from the creditor for damage caused to him or her by an interim measure that was unfounded or where the creditor had no entitlement.

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The interim measure may also impose a payment ban on the debtor of a debtor (e.g. a bank). In that case the ban takes effect from the time when it is served on the debtor of the debtor. On receiving the ban, the latter may no longer effectively meet its obligations towards the debtor and may also be liable to pay compensation to the creditor. In the procedure for issuing an interim measure, the bank may disclose information on the existence and number of transaction accounts or other claims that the debtor has on it only at the court’s request. However, information on the account numbers of legal persons and on whether those accounts are frozen is accessible to the public via the register of transaction accounts on the Bank of Slovenia’s website (http://www.bsi.si).

3.3. What is the validity of such measures?

The period of validity of an interim measure is not laid down by law but determined by the court in the order issuing the measure. If the measure is issued before a complaint is filed or before any other proceedings begin, or if it is issued to safeguard a claim that has not yet arisen, the court sets a deadline by which the creditor must institute proceedings or file a complaint. If the creditor then fails to file a complaint or institute proceedings by that deadline, the court terminates the procedure.

Interim measures may also be valid from the date of the court decision by which they are issued.

The interim measure is not ordered without giving the debtor an opportunity to state an opinion (ex parte) on the proposal for its issue. The debtor may file an objection against the order, but this does not have the effect of suspending its execution.

4. Is there a possibility of appeal against the measure?

The debtor may file an objection against the interim measure - within eight days of the order being served - with the court that issued it. The same court then decides on the objection.

The debtor or creditor may file a complaint against the court decision relating to the objection or against an order rejecting an application for an interim measure with the court that issued the order, within eight days of the order being served. The complaint is heard by the court of second instance.

As a general rule, objections and complaints do not have the effect of suspending the procedure.

If the deadline for filing a complaint or objection is missed, it is also possible to request a return to the previous position (restitutio in integrum).

The Public Prosecutor may file an extraordinary legal remedy against the final interim order in the form of a request for the protection of legality, on the grounds of a material infringement of procedural provisions or a mistake in the application of substantive law. The decision on the request for the protection of legality is a matter for the Supreme Court.



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Last update: 24-05-2006

 
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