The effect of COVID-19 on periods in judicial and administrative proceedings
The severity of the coronavirus disease (COVID-19) situation has forced the authorities in the last few days to pass a number of provisions and measures that will be continually updated and discussed in our articles. The nature of these has mostly been regarding the contents of material law measures (e.g. measures to help the economy, prohibition of goods and services sales to consumers, public transport ban). At the same time, it is important to note that significant consequences for the economy and other entities can also stem from questions regarding the periods in judicial and administrative proceedings, as well as questions of material law preclusive periods and limitation periods. As will be presented below, certain measures regarding these periods have already been passed, while others have been proposed and are awaiting confirmation.
As mentioned in one of our previous articles, the Supreme Court of the Republic of Slovenia passed a decree on extraordinary measures on 13 March 2020, pursuant to which all courts can only hold hearings and decide in urgent matters, as stated in Article 83 of the Courts Act. The procedural periods are not running during the period of the extraordinary measures, except in urgent matters; court consignments are also not served. If a court consignment has been served, the procedural period starts on the first day after the extraordinary measures have been lifted (the decree and its imposed measures will be in force until they are publicly lifted, but no longer than 16 May 2020).
It should be noted that the stated decree of the Supreme Court affects only procedural periods, but not material law periods (e.g. in the case of an action for the illegality of termination of employment, an action to exercise rights from pension and disability insurance, an action to exercise rights from insurance against unemployment, an action for the inadmissibility of claim enforcement). The periods for these actions are therefore ongoing pursuant to the relevant provisions, however, this may change in the coming days (more on this below).
The Supreme Court’s decree also does not affect limitation periods. The Obligations Code does stipulate in Articles 359 and 360 the suspension of the limitation periods. The reasons for their suspension is 1) mobilization, immediate risk of war, a state of emergency, or a state of war and 2) the time during which the creditor was unable to demand performance of the obligation through the court due to insurmountable obstacles. A state of emergency has not been declared in Slovenia (pursuant to the provisions of the Constitution of the Republic of Slovenia) and it would also be difficult to claim that creditors are unable to demand performance of the obligation through the court due to insurmountable obstacles (pursuant to the decree of the Supreme Court, they can communicate with the courts via mail). It therefore seems more likely that the suspension of the limitation period is not possible on these grounds and that for the sake of caution, the limitation periods shall be viewed as ongoing. Despite this, the possibility exists that due to the declared epidemic and the related intervention measures it could nevertheless be stated that the actual and extraordinary situation in Slovenia (and beyond) does constitute a state of emergency and that regardless of the open communication channel with the court via mail, such circumstances constitute insurmountable circumstances. The consequence in both cases would be that the limitation period would not run during such time.
In any case, pursuant to Article 345 of the Obligations Code, the rules on limitation periods, including rules on suspension, do not apply to material law preclusive periods (i.e. periods in which a lawsuit must be filed or a certain action must be taken, as the right would otherwise be forfeited). These periods are not stopped neither on the basis of the decree of the Supreme Court nor directly based on the Obligations Code due to the proclamation of an epidemic (even if the epidemic in this case constitutes a state of emergency).
As explained below, the Act on the temporary measures on judicial, administrative and other public law matters to contain the spread of the infectious disease SARS-CoV-2 (COVID-19) is currently in the legislative process and is projected to stop all periods of material law (both limitation as well as preclusive periods).
The stated decree of the Supreme Court only applies to judicial proceedings, not also for administrative proceedings. For this reason, general rules apply to administrative procedures for the time being, without exception.
The General Administrative Procedure Act states that in the event of an adjournment of a proceeding, all periods determined for procedural acts are halted (during the adjournment of a proceeding the time limit for reaching a decision and decision on an appeal are also halted). However, among the cases in which the proceeding is adjourned there is no such case that would allow administrative bodies to adjourn administrative proceedings due to the situation with the COVID-19 disease. For this reason, the procedural periods continue to run normally for the time being.
The same goes for material law preclusive periods: like the exercising rights before the courts, these periods also continue to run normally for exercising rights before administrative bodies, as no exception to the rules has been introduced yet. The same goes for the obligations.
In terms of administrative proceedings, the Act on the temporary measures on judicial, administrative and other public law matters to contain the spread of the infectious disease SARS-CoV-2 (COVID-19), if passed, is projected to adjourn the periods for meeting material obligations and exercising material rights.
Proposed legislative changes
As emphasized above, the stated legislative framework of the arrangement of periods in judicial and administrative proceedings might change shortly.
The Government of the Republic of Slovenia, at a meeting by correspondence on 16 March 2020, determined the text of the proposed Act on the temporary measures on judicial, administrative and other public law matters to contain the spread of the infectious disease SARS-CoV-2 (COVID-19) and submitted it to the Slovenian Parliament in an urgency procedure.
The proposed act stipulates that all periods for exercising clients’ rights in judicial proceedings, as determined by law, are adjourned (in contrast to the Supreme Court’s decree, the proposed act therefore ties the adjournment of the periods to material law preclusive periods and limitation periods as well). Pursuant to the proposed act, all judicial (procedural) periods would also be adjourned, except in urgent judicial matters (which has also been determined in the decree of the Supreme Court). The period for filing a constitutional appeal is also adjourned. In addition, the proposed act gives the president of the Supreme Court the power to issue a decree to adjourn the procedural periods even in certain matters that are deemed urgent pursuant to Article 83 of the Courts Act.
The proposed act also stipulates regarding the periods in administrative and other public law matters to adjourn all periods, both procedural as well as material law periods, except in urgent matters. Pursuant to the proposed act, the periods would not run neither for performing procedural actions by the parties during the proceedings nor the periods for fulfilling material obligations that are required pursuant to the administrative act. The deadlines for exercising material law rights in administrative and other public law matters that run out during the period of the measures under the proposed act would be prolonged to run out on the 8th day after the measures are lifted (wherein it would be regarded that the expiration of this period also means the expiration of the right for whose exercise the period has expired).
In addition, the proposed act gives the Government of Slovenia a legal basis to pass additional measures.
The time period of the legality of the act is limited in the act, as the measures would be valid only until the reasons for them exist, but no longer than until 1 July 2020.
Finally, it should be emphasized that until the proposed act has been passed, the material law periods continue to run on as before, while it could be argued that the limitation periods are not running after all, as has been explained above.