European Court of Human Rights

 

 

FIFTH SECTION

 

 

 

 

 

 

CASE OF GROBIN v. SLOVENIA

 

(Application no. 33347/07)

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

 

3 January 2013

 

 

 

This judgment is final but it may be subject to editorial revision.




In the case of Grobin v. Slovenia,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

          Ann Power-Forde, President,
          Boštjan M. Zupančič,
          Helena Jäderblom, judges,
and Stephen Phillips, Deputy Section Registrar,

Having deliberated in private on 4 December 2012,

Delivers the following judgment, which was adopted on that date:

PROCEDURE




  The case originated in an application (no. 33347/07) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Ms Marija Grobin (“the applicant”), on 25 July 2007.




  The applicant was represented by Ms M. Končan Verstovšek, a lawyer practising in Celje. The Slovenian Government (“the Government”) were represented by their Agent.




  The applicant alleged under Article 6 § 1 of the Convention that the length of the proceedings before the domestic courts was excessive. In substance, she also complained about the lack of an effective domestic remedy in respect of the excessive length of the proceedings (Article 13 of the Convention).




  On 14 March 2012 the application was communicated to the Government. In accordance with Protocol No. 14, the application was assigned to a committee of three Judges.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE




  The applicant was born in 1961 and lives in Ljubljana.




  On 12 April 2001 the applicant instituted enforcement proceedings against her former husband before the Šmarje pri Jelšah District Court as the legal guardian and representative of her two sons who were both minors seeking the payment of alimony awarded by a judgment of 26 January 1996. These proceedings were conducted under the reference number In 19/2001.




  On 12 May 2001 the court requested the applicant to complete the request with additional information. The up-dated request was sent to the court on 28 May 2001.




  On 21 June 2001 the court issued the writ of execution, granting enforcement on immovable property. The applicant appealed against the calculation of court fees.




  On 28 August 2001 the applicant withdrew the appeal.




  On 26 September 2001 a decision rejecting the appeal was issued based on the above-mentioned withdrawal.




  On 23 January 2002 the court issued a decision requesting the applicant to submit a down payment for a property valuation.




  On 15 February 2002 the applicant sought the exemption from paying the fee for the valuer.




  On 28 February 2002 the court issued a decision on exemption from fees.




  On 15 April 2002 the court appointed a valuer specializing in agricultural land.




  On 5 September 2002 the valuer submitted his report to the court which was sent to the applicant for comments. The applicant submitted comments on 1 October 2002.




  On 4 February 2003 the applicant lodged a submission with the court objecting to the expert report and requesting the appointment of a valuer specialized in valuating building land.




  On 10 February 2003 the applicant lodged a new enforcement request on the debtor’s movable property. The proceedings were conducted under the reference number In 122/2003. The writ of execution was issued on 7 April 2003. The request was subsequently amended and the applicant requested enforcement on immovable property.




  On 3 March 2003 the court received the planning information from the Šmarje pri Jelšah Municipality where it was stated that the property in question was not agricultural land but building land.




  On 27 May 2003 the court issued a decision on the value of the immovable property. Both parties appealed.




  On 8 October 2003 the Higher Court upheld the appeal and remitted the case for re-examination.




  On 4 February 2004 the court requested further information from the Municipality regarding the planning information. The Municipality informed the court on 9 March 2004 that the immovable property in question was indeed building land and not agricultural land.




  On 29 April 2004 the court issued a decision appointing a valuer specialized in building land to value the property. The report was delivered on 17 June 2004.




  On 16 August 2004 the court issued a decision joining the two enforcement proceedings (In 19/2001 and In 122/2003) since they concerned the same immovable property.




  On 14 October 2004 a decision was issue on the determination of the value of half of the property. The applicant appealed and the court considered the appeal as a request to determine the value of the whole property.




  On 28 October 2004 the decision on the value of the whole property was issued.




  On 4 March 2005 the court issued an order for a public auction.




  On 25 April 2005 an order on the recognition of a winning bid was issued.




  Between 15 June 2005 and 7 March 2006 the case was pending before the Land Register due to the requirement of the ex officio notice of the writ of execution in the Land Register.




  On 8 March 2006 the court issued a delivery of immovable property order in favour of the applicant’s sons.




  On 9 May 2006 a decision was issued in land registration proceedings entering the immovable property in the name of the applicant’s sons in the Land Register.




  On 5 June 2006 the court issued a decision on payment of the creditors. The applicant appealed.




  On14 December 2006 the Celje Higher Court upheld the appeal and remitted the issue for re-examination.




  On 12 February 2007 the court issued a decision on payment, determining the costs of the proceedings, the taxes to be paid and the final amount of money to be awarded to the creditors.

II.  RELEVANT DOMESTIC LAW




  For relevant domestic law see the judgment Maksimovič v. Slovenia (no. 28662/05, 22 June 2010).

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION




  The applicant complained about the excessive length of the proceedings. She relied on Article 6 § 1 of the Convention, which reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by a ... tribunal...”




  In substance, the applicant further complained that the remedies available for excessive legal proceedings in Slovenia were ineffective. Article 13 of the Convention reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A.  Admissibility




  The Government objected that the applicant could not be considered as a victim of the alleged violations since she was not a party to the domestic proceedings but was participating merely as the legal guardian and representative of her underage sons. They argued that as the applicant lodged the application before the Court solely in her name and not even implicitly on behalf of her sons, she cannot claim that her rights under the Convention were violated.




  In the alternative, the Government argued that the application is in any event manifestly ill-founded, since the proceedings were conducted efficiently and swiftly.




  The applicant contested these arguments. She argued that she was directly affected by the domestic proceedings since she could not obtain the enforcement of the judgment in a reasonable time and had to bear the financial burden of supporting the children on her own.




  The Court recalls that under Article 34 of the Convention it may receive applications from individuals and others “claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto”. The existence of a victim who was personally affected by an alleged violation of a Convention right is indispensable for putting the protection mechanism of the Convention into motion, although this criterion is not to be applied in a rigid and inflexible way. In order to claim to be a victim of a violation, a person must be directly affected by the impugned measure (see, for example, Buckley v. the United Kingdom, judgment of 25 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1288, §§ 56-59, Valmont v. the United Kingdom (dec.), no. 36385/97, decision of 23 March 1999, and Thevenon v. France (dec.), no. 2476/02, 28 February 2006).




  Turning to the present case the Court notes that after her divorce the applicant obtained custody over her two sons. Subsequently, she instituted enforcement proceedings as the legal guardian and representative of her underage children seeking the payment of alimony owed to the children by her former husband.




  It is true that that the applicant was not one of the creditors in the enforcement proceedings but merely their legal guardian and representative. However, the Court cannot ignore the fact that the proceedings concerned the question of alimony, which is an issue that affects the very core of a family’s living conditions. It can therefore not be said that the proceedings themselves and their outcome did not affect the applicant. Firstly, as the legal representative of her sons she was directly involved in all the procedural aspects of the proceedings. And secondly, given that in the absence of her former husband’s financial support she became the sole provider for her children, it can be said that the outcome of the proceedings affected her living conditions.




  The Court therefore finds that the applicant was personally and directly affected by the alleged violation and thus rejects the Government’s objection under Article 34 of the Convention.




  Finally, the Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds (see Maksimovič v. Slovenia, no. 28662/05, 22 June 2010, §§ 21-24). It must therefore be declared admissible.

B.  Merits




  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).




  Having examined all the material submitted to it, and having regard to its case-law on the subject (see Barišič v. Slovenia, no. 32600/05, §§ 45-47, 18 October 2012; Stojc v. Slovenia, no. 20159/06, §§ 22-25, 18 October 2012; Bizjak Jagodič v. Slovenia, no. 42274/02, §§ 16-18, 6 April 2006 and Rodič v. Slovenia, no. 38528/02, §§ 18-20, 27 April 2006) the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable-time” requirement.

There has accordingly been a breach of Article 6 § 1.

II.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION




  The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI). In view of its findings concerning the exhaustion of domestic remedies (see paragraphs 17-18 above) and having regard to the fact that the arguments put forward by the Government have already been rejected in the case Maksimovič v. Slovenia (cited above, §§ 29-30), the Court finds that in the present case there has been a violation of Article 13 on account of the lack of a remedy under domestic law whereby the applicant could have obtained a ruling upholding her right to have her case heard within a reasonable time, as set forth in Article 6 § 1.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION




  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.  Damage




  The applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage.




  The Government contested the claim.




  The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards award her EUR 4,000 under that head.

B.  Costs and expenses




  The applicant also claimed EUR 624 for the costs and expenses incurred before the Court.




  The Government contested the claim, arguing that the applicant’s representative erred in the calculation of costs and expenses by not correctly applying the Attorney Fee Tariff Act.




  Regard being had to the documents in its possession and the Government’s arguments, the Court considers it reasonable to award the sum of EUR 300.

C.  Default interest




  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Declares the application admissible;

 

2.  Holds that there has been a violation of Articles 6 § 1 and 13 of the Convention;

 

3.  Holds

(a)  that the respondent State is to pay the applicant, within three months the following amounts:

(i)  EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii)  EUR 300 (three hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

 

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 3 January 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

  Stephen Phillips                                                                 Ann Power-Forde
Deputy Registrar                                                                       President