Civil enforcement procedure is an inseparable part of the right of access to court enshrined in the Constitution and conventions, and, as such, it is ex natura designed to benefit the creditor. Since the creditor is already in the possession of the enforceable title, it is understandable that the principle of proportionality and the principle of equality in enforcement proceedings lack the importance they have in civil substantive law or in civil proceedings. According to the case law of the Constitutional Court of the Republic of Slovenia and the European Court of Justice, as well as according to legal literature, the creditor’s right to effective enforcement may, in principle, only be encroached upon in exceptional cases or when, due to enforcement, the debtor’s fundamental rights to personal dignity and existence were to be threatened.
Ever since the adoption of the Claim Enforcement and Security Act (Zakon o izvršbi in zavarovanju, hereinafter ZIZ) in 1998, Slovenian legislator has pursued the goal of increasing the effectiveness and turnaround time of enforcement procedures. In regard to the above, striving to do so is a perfectly legitimate, necessary, and appropriate way of ensuring the creditor’s constitutionally and conventionally recognized right to effective access to court. It is however questionable whether or not constitutional (procedural) guarantees of the debtor and other participants to the civil enforcement proceeding are also sufficiently taken into consideration in the system in force under the ZIZ. In this regard, it must be said that, apart from enforcement based on an enforceable title, enforcement based on a trustworthy document is regulated by Slovene legislation as well; the conclusions about the creditor’s privileged position do not apply with this type of enforcement. The creditor’s position is typically not considerably stronger than the debtor’s one with this type of proceedings, as the creditor’s claim has yet to be established by the authority of the court.
This thesis discusses the legal mechanisms that reflect the constitutional right of access to court, the right to be heard in the proceedings, and the right of appeal. This thesis contains an analysis of whether relevant legal provisions in the Act are appropriate as regards the relationship between the creditor’s legal status on the one hand and the legal status of the debtor or other participants to the enforcement proceedings on the other. One of the hypotheses revolves around the presumption that in the applicable Slovene system the creditor’s right to effective enforcement is given disproportionate precedence over the constitutional (procedural) guarantees of the debtor and the third party. To this end, case-law and legal literature were analysed and the legal regimes in comparative law examined. The study confirmed that the legal regime in force is not optimal as regards the constitutional (procedural) guarantees of the debtor and the third party. This goes for the debtor’s motion for enforcement suspension, the third party’s objection in conjunction with the third party’s motion for suspension, the debtor’s objection to the enforcement decision based on an authentic document, the objection brought after the expiry of the time-limit set, and, partly, the appeal. This leads to the conclusion that this part of the ZIZ should be amended and that the regimes in force in Austria, Germany, and Croatia could be used an example.
Nevertheless, one cannot say that the ZIZ as a whole, or in part, is creditor-oriented. In my opinion, immovable property enforcement as well as exemptions from and restrictions upon enforcement, court penalties, and opposition of the new debtor under article 56a of the ZIZ are suitably regulated from the debtor’s legal position view; however, there are mechanisms present in the Act that put the creditor in an underprivileged position with regard to the debtor, i.e. they are more debtor friendly. This is true for the penalties in the enforcement procedure as well as for the provisions regulating the use of “impugnation” (and “opposition”) grounds.