Last Updated on May 21, 2019 by LawEuro
FOURTH SECTION
DECISION
Application no. 17915/16
Novka STOJANOVIĆ
against Slovenia
The European Court of Human Rights (Fourth Section), sitting on 25 September 2018 as a Committee composed of:
Georges Ravarani, President,
Marko Bošnjak,
Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above application lodged on 29 March 2016,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms NovkaStojanović, is a Serbian national who was born in 1954 and lives in Boleč. She was represented before the Court by Ms B. Nikolić, a lawyer practising in Beograd.
2. The Slovenian Government (“the Government”) were represented by their Agent, Ms A. Grum, State Attorney. The Government of Serbia, having been informed of their right to intervene (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), informed the Court that they did not wish to exercise this right.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant is the daughter of X, who died on 16 January 2009.
1. Enforcement proceedings
(a) First set of proceedings
5. On 17 January 1992 X requested the enforcement of the judgment of 7 June 1991 issued in his favour by the Leskovac Municipality Court (Serbia).
6. On 1 April 1992 the Ljubljana Basic Court allowed enforcement of the debt in the amount of 487,530 Yugoslav dinars (YUN) with interest.
7. On 12 November 2014 the applicant and her sister informed the Ljubljana Local Court, which took over the proceedings, that their father X had died and that they wished to pursue the proceedings as his legal successors. On 16 December 2015 the court allowed them to take over the proceedings and decided to continue the proceedings with them as new creditors.
8. On 21 April 2016 the applicant and her sister informed the court that they wished to withdraw the enforcement request, following an out-of-court settlement between the parties. On 5 May 2016 the Ljubljana Local Court issued a decision that the enforcement proceedings be discontinued.
(b) Second set of proceedings
9. On 11 February 2002 X requested enforcement of the judgment of 17 March 1992 issued in his favour by the Leskovac District Court (Serbia).
10. On 1 March 2005 the Ljubljana Local Court allowed enforcement of the debt to the amount of 219,300 Slovenian tolars (SIT) with interest.
11. On 10 November 2014 the court was informed that X had died and that the applicant and her sister wished to pursue the proceedings as his legal successors. On 22 April 2015 the Ljubljana Local Court allowed them to take over the proceedings and decided to continue the proceedings with them as new creditors.
12. On 21 April 2016 the applicant and her sister informed the court that they wished to withdraw the enforcement request, following an out‑of‑court settlement between the parties. On 25 May 2016 the Ljubljana Local Court issued a decision that the enforcement proceedings be discontinued.
2. The supervisory appeals
13. Meanwhile, the applicant had lodged supervisory appeals in both sets of enforcement proceedings. On 4 and 5 June 2015, respectively, the President of the Ljubljana Local Court had replied to the applicant by issuing a notification pursuant to section 6(4) of the Act on the Protection of the Right to a Trial without Undue Delay (hereinafter “the notification”, see paragraph 15 below). The President had referred to, inter alia, the steps taken with a view to resolving the cases.
B. Relevant domestic law
14. The Act on the Protection of the Right to a Trial without Undue Delay (Official Gazette no. 49/2006 – “the 2006 Act”, with further relevant amendments) became operational on 1 January 2007.
15. The 2006 Act provides that a claimant may use a supervisory appeal and an application for a deadline in order to expedite the proceedings. In addition to these acceleratory remedies, the 2006 Act also provides for the opportunity to obtain redress by means of a compensatory remedy, namely, by bringing a claim for just satisfaction. With regard to the compensatory remedy, the 2006 Act provides that two cumulative conditions must be satisfied in order for a party to be able to lodge a claim for just satisfaction. Firstly, during the proceedings the applicant must have successfully availed himself of a supervisory appeal (a decision or a notification under section 6(4) or (6) of the 2006 Act should have been issued) or have lodged an application for a deadline, regardless of the outcome. Secondly, the proceedings should be finally resolved (pravnomočnokončan). The final resolution of the case in principle refers to the final decision against which no ordinary appeal lies; that would normally be the first-instance, or, if an appeal has been lodged, the second-instance court’s decision. Before a claim for just satisfaction can be lodged with a court, the claimant is required to attempt to settle the case with the State Attorney’s Office.
16. For a detailed presentation of the 2006 Act, see Žunič v. Slovenia ((dec.), no. 24342/04, §§ 16-26, 18 October 2007) andGrzinčič v. Slovenia, (no. 26867/02, §§ 38-48, 3 May 2007).
17. Under section 9 of the Enforcement and Securing of Civil Claims Act (Official Gazette no. 3/07 with amendments – “the Enforcement Act”) all decisions issued during first-instance enforcement proceedings are amenable to appeal, unless the law provides otherwise. The deadline for lodging an appeal is eight days from the serving of the impugned decision. The decision, against which an appeal can no longer be lodged, is final (section 15 of the Enforcement Act in connection with section 319 and section 366 of the Civil Procedure Act).
COMPLAINTS
18. The applicant complained under Article 6 of the Convention about the length of the two sets of enforcement proceedings. She further complained under Article 1 of Protocol No. 1 to the Convention about the non‑enforcement of the judgments issued in her father’s favour.
THE LAW
19. The applicant complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, about the duration of the two sets of enforcement proceedings and about the non-enforcement of the judgments issued in favour of her late father. In so far as relevant, these Articles read as follows:
Article 6
“In the determination of his civil rights and obligations … everyone is entitled to a … hearing within a reasonable time by [a] … tribunal …”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
A. The parties’ submissions
1. The Government
20. The Government submitted that the applicant had failed to exhaust domestic remedies in both sets of enforcement proceedings. In particular, relying on the case of Žunič v. Slovenia ((dec.), no. 24342/04, § 54, 18 October 2007) they submitted that both proceedings at issue had been concluded in less than one year after the applicant had received the notifications issued by the President of the Ljubljana Local Court pursuant to section 6(4) of the 2006 Act (see paragraph 13 above). As of 21 April 2016 the applicant had the opportunity to request the payment of just satisfaction due to the violation of the right to a trial without undue delay before domestic authorities, but she had failed to do so.
21. The Government further argued that the applicant’s complaint under Article 1 of Protocol No. 1. was manifestly ill-founded because the responsibility of the State for the enforcement ceased once the enforcement proceedings had been discontinued following a settlement.
2. The Applicant
22. The applicant considered that the enforcement proceedings had been unduly long because they had lasted for more than twenty-four years before an agreement to settle the outstanding debt had been concluded.
B. The Court’s assessment
23. The Court reiterates that the rule on exhaustion of domestic remedies under Article 35 § 1 of the Convention requires that complaints intended to be made subsequently in Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 72, 25 March 2014).
24. Furthermore, the Court recalls that in cases against Slovenia, in the context of the exhaustion of domestic remedies for excessive length of proceedings, applicants are required to make use of acceleratory remedies if the proceedings are pending before the first or second-instance court (see Korenjak v. Slovenia (dec.), no. 463/03, §§ 63-71, 15 May 2007). After exhausting the acceleratory remedies they should use the compensatory remedy, if they have reasonably prompt access to the latter (see Žunič, decision cited above, §§ 43-55).
25. In the present case the applicant only resorted to an acceleratory remedy, namely a supervisory appeal, in both sets of enforcement proceedings (see paragraph 13 above). In June 2015 the President of the Ljubljana Local Court decided on the supervisory appeals by issuing notifications pursuant to section 6(4) of the 2006 Act, which opened the possibility for the applicant to seek compensation for the undue delay once the proceedings were finally resolved (see paragraphs 13-15 above).
26. To this effect, the Court notes that on 5 May and 25 May 2016, respectively, the Ljubljana Local Court, following the applicant’s withdrawal of the enforcement requests, discontinued enforcement proceedings (see paragraphs 8 and 12 above). Moreover, the Court observes that no appeal seems to have been lodged against these court decisions, meaning that both cases were finally resolved eight days after the decisions to discontinue the proceedings had been served on the parties (see paragraph 17 above). Even though the date of the serving is not indicated in the file, in the absence of any claim to the contrary by the applicant, the Court can assume that no delays had occurred in this respect and that the decisions were served on the parties within a reasonably short period. Following the final resolution of her cases, the applicant then had nine months to institute compensation proceedings before the State Attorney’s Office (see paragraph 16 above).
27. The Court takes note of the fact that the applicant was afforded access to the compensatory remedy only after she had lodged her application with the Court on 29 March 2016. However, in the specific context of exhaustion of domestic remedies for the excessive length of proceedings, the Court has declared similar applications inadmissible for non-exhaustion or as premature in situations where the compensatory remedy, not accessible at the time of introduction of the applications, became available “reasonably promptly” after the applicant had resorted to a purely acceleratory remedy, which could not have remedied the delays that had already occurred (see Žunič, decision cited above, §§ 43‑55, and Novak v. Croatia (dec.), no. 7877/14, §§ 57-61, 14 June 2016; contrast with Robert Lesjak v. Slovenia, no. 33946/03, §§ 47-56, 21 July 2009).
28. In view of the above considerations and the fact that the claim for just satisfaction became available to the applicant approximately one year after she had exhausted the acceleratory remedy (see paragraphs 13 and 26 above), the Court considers that the possibility to obtain compensation arose for the applicant “reasonably promptly” (see, mutatis mutandis, Žunič, decision cited above, §§ 53-55).
29. It follows that the complaint under Article 6 § 1 of the Convention is inadmissible under Article 35 § 1 of the Convention for non-exhaustion of domestic remedies and must therefore be rejected pursuant to Article 35 § 4 thereof.
30. As to the complaint under Article 1 of Protocol No. 1 regarding non‑enforcement of the judgments issued in favour of the late applicant’s father, the Court, noting that settlements had been reached in the enforcement proceedings, reiterates its above finding that the applicant should have availed herself of the compensatory remedy in respect of the non‑pecuniary damage arising from the excessive length of these proceedings (see paragraphs 23-28 above). Moreover, had the applicant believed that she had also suffered material damage on the same account, she could have lodged an action in respect of pecuniary damage under section 21 of the 2006 Act (see paragraph 16 above). It follows that this complaint is also inadmissible under Article 35 § 1 of the Convention for non-exhaustion of domestic remedies and must therefore be rejected pursuant to Article 35 § 4.
31. This conclusion dispenses the Court from addressing the Government’s remaining inadmissibility objection (see paragraph 21 above).
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 18 October 2018.
Andrea Tamietti Georges Ravarani
Deputy Registrar President
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