FOURTH SECTION
DECISION
Application no. 41920/11
Rado ANTOLOVIĆ
against Slovenia
The European Court of Human Rights (Fourth Section), sitting on 27 June 2017 as a Committee composed of:
Vincent A. De Gaetano, President,
Georges Ravarani,
Marko Bošnjak, judges,
and Andrea Tamietti, Deputy ection Registrar,
Having regard to the above application lodged on 4 July 2011,
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, Mr Rado Antolović, is a Slovenian national, who was born in 1959 and lives in Dubai. He was represented before the Court by Mr E. Dokič, a lawyer practising in Piran.
2. The Slovenian Government (“the Government”) were represented by their Agent, Mrs A. Vran, State Attorney.
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 and X had a daughter, Y, born in 1987. By a judgment issued on 30 September 1988 (hereinafter “the 1988 judgment”), the Koper Basic Court awarded X the custody of Y and ordered the applicant to make regular child maintenance monthly payments of 500,000 Yugoslav dinars (YUD) from October 1988 in cash directly to X.
5. On 28 February 2001 Y, represented by X, lodged with the Piran Local Court a request for enforcement of the 1988 judgment claiming that the applicant had failed to pay child maintenance. As the applicant had not been found at his address, a representative was appointed for him. The representative unsuccessfully lodged an objection against the enforcement decision.
1. Substitute child maintenance requested by X on behalf of Y
6. In the meantime X lodged also a substitute child maintenance claim on behalf of Y with the Public Guarantee and Maintenance Fund of the Republic of Slovenia (hereinafter “the Fund”). She requested the Fund to pay her maintenance for Y as the applicant had not been paying it.
7. By a decision of 11 July 2001 the Fund granted substitute child maintenance to Y in the amount of 14,860 Slovenian tolars monthly (SIT – approximately 62 euros (EUR)) from 1 November 2001. On 12 October 2001 this decision became enforceable.
8. The Fund sent a letter notifying the applicant of the above decision to his registered address in Piran (Slovenia). This and subsequent letters informing him of the payments of the substitute child maintenance were returned as undelivered. On 24 May 2005 the Fund stopped paying substitute child maintenance to Y as she became of full age.
9. According to the applicant, he had learned of the Fund’s decision of 11 July 2001 (see paragraph 7 above) when his relatives had informed him, in March 2010, of the enforcement proceedings concerning the reimbursement of the substitute child maintenance payments (see paragraph 12 below).
10. On 5 November 2013 the applicant requested that the Fund’s decision of 11 July 2001 (see paragraph 7 above) be annulled as it had never been served on him and X had lied about him not paying for Y’s maintenance. The Fund rejected the request. Subsequently, the Ministry for Work and Family Matters, on 23 January 2014, dismissed the applicant’s appeal.
2. Request for reimbursement of the substitute child maintenance
11. On 11 November 2004 the Fund initiated enforcement proceedings against the applicant requesting the reimbursement of SIT 683,712 (approximately EUR 2,800) in respect of the substitute child maintenance it had paid from 1 November 2001 to 31 October 2004. On 1 April 2005 the Piran Local Court issued an enforcement order, which was sent to the applicant’s address in Slovenia. However, according to the applicant, he no longer lived at that address and therefore did not receive the court’s mail.
12. On 25 March 2010, after being allegedly informed by his relatives about the pending enforcement, the applicant requested the court to send him the enforcement order and other relevant documents from the enforcement proceedings. After receiving, inter alia, the enforcement order, the applicant, on 6 April 2010, lodged an objection against it. He complained that the enforcement order had only recently been served on him. Moreover, he had not been informed of the transfer of the child maintenance claim to the Fund. The applicant stressed that he had communicated his new address in Australia to the Piran Administrative Unit and that the Fund could have easily obtained it. The applicant further submitted that X had not been saying the truth and that he had been paying child maintenance often directly to Y.
13. On 14 April 2010 the Piran Local Court dismissed the applicant’s objection. The court held that a child maintenance debtor had no locus standi in proceedings concerning a transfer of a child maintenance claim to the Fund. Those proceedings concerned only the child’s right to financial support. The notice of a transfer of a child maintenance claim could only have affected the Fund’s right to claim reimbursement if the applicant had proved that he had fulfilled his obligation to pay child maintenance. However, the applicant had neither alleged nor shown that he had been paying child maintenance to X in accordance with the 1988 judgment (see paragraph 4 above). The bank slips submitted by the applicant indeed showed that some payments had been made to Y’s account; however there was no indication of the reason for the payments or the person who had made them.
14. The applicant appealed. On 17 September 2010 the Koper Higher Court dismissed the appeal. It acknowledged that the Fund was obliged by law to inform the applicant of the transfer of the child maintenance obligation. However, the rationale behind that obligation was simply to prevent the debtor and the Fund from paying child maintenance at the same time. If that had been the case, the applicant could have objected to the Fund’s claim and advanced his arguments that he had been correctly paying the maintenance and had not been aware of the Fund’s decision. However, the applicant had neither alleged nor shown that he had correctly met his child maintenance obligation. In particular, he alleged that he had made payments to the child’s account; however, the 1988 judgment had instructed him to pay directly to the mother in cash (see paragraph 4 above).
15. The applicant lodged a constitutional complaint, reiterating his previous claims. On 6 January 2011 the Constitutional Court dismissed the constitutional complaint, finding that it did not concern an important constitutional question or entail a violation of human rights that had serious consequences for the applicant. On 11 January 2011 the Constitutional Court’s decision was served on the applicant.
16. On 29 August 2012 the applicant also lodged an extraordinary remedy, called objection after the deadline (ugovor po izteku roka), against the enforcement order, claiming that Y, in the proceedings she had instituted against the applicant (see paragraph 19 below), had admitted to having received the maintenance payments due by March 2012. The first-instance court upheld the objection, but the Koper Higher Court overturned that decision and rejected the objection on 23 October 2012. On 7 October 2013 the Fund withdrew the enforcement request as the debt had been repaid by means of a seizure of the assets on the applicant’s bank account.
3. Other sets of proceedings
17. On 4 September 2006 the applicant instituted civil proceedings against Y claiming that his obligation to pay for Y’s maintenance should be terminated. In his claim he indicated his address in Hong Kong. Y argued in the proceedings that she had difficulties maintaining contact with the applicant and finding out his whereabouts. The court requested the parties to submit documentation related to their arguments. While Y submitted the requested documents, the applicant failed to do so. The applicant withdrew his claim on 17 April 2007.
18. On 1 June 2012 the applicant again instituted civil proceedings against Y claiming that his obligation to pay for Y’s maintenance should be terminated. On 24 January 2013 the parties reached a court settlement.
19. On 11 June 2012 Y requested enforcement of child maintenance that had not yet been paid. The applicant objected and ultimately these proceedings were discontinued.
B. Relevant domestic law
20. Section 123 of the Marriage and Family Relations Act (Official Gazette of the Socialist Republic of Slovenia no. 15/76 with further amendments; hereinafter “the MFR Act”) states that parents are obliged to support their children until they reach the age of majority by providing the living conditions needed for a child’s development, according to their abilities and capacity. If a child is engaged in full-time education, even if he or she is enrolled in ongoing part-time studies, the parents are obliged to support him or her after he or she has reached the age of majority, but only up to the age of twenty-six.
21. According to the Public Guarantee and Maintenance Fund of the Republic of Slovenia Act (Official Gazette no. 25/97 with further amendments; hereinafter “the GMF”) a child is entitled to substitute maintenance where it has been granted under a final court ruling, provided that the child is not yet eighteen years old. A child is entitled to substitute maintenance if enforcement proceedings against the child maintenance debtor have been unsuccessful or have been ongoing for over three months (Section 21c(1)).
22. The GMF further states that the right to substitute maintenance shall cease, inter alia, at the request of the child maintenance debtor, provided that he proves that he has made the maintenance payments due and that he has also made further payments of child maintenance for two months in advance (Section 21f). The child’s claim against the maintenance debtor is transferred to the Fund up to the amount granted under the GMF on the day the decision granting rights under the Act is executed (Section 28(1)). Upon transferring the claim, the Fund enters into the position of a creditor up to the amount paid under the decision to grant an entitlement under the GMF (Section 28(3)). The Fund shall inform the maintenance debtor of the transfer of the maintenance claim (Section 28(4)).
23. The Government submitted a number of civil court’s judgments indicating that the child maintenance debtor must fulfil his or her obligations in line with the terms set out in the judgment by which this obligation was determined and could not successfully claim that the obligation was fulfilled by some other means not indicated in the judgment.
24. The Government also submitted a number of the Administrative Court’s and Supreme Court’s decisions indicating that solely the child entitled to maintenance could be party to the proceedings before the Fund.
COMPLAINT
25. The applicant complained, in substance under Article 6 of the Convention, that he had not been able to participate in the proceedings before the Fund and that the domestic courts had acted arbitrarily.
THE LAW
26. The applicant complained of a violation of Article 6 § 1 of the Convention which, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
27. The Government argued that the applicant had omitted to mention several relevant facts, such as the facts relating to the domestic proceedings which continued after he had lodged his application with the Court. They submitted that the application should be dismissed on grounds of abuse of the right to petition. They also argued that the applicant had failed to exhaust domestic remedies, in particular he had not challenged the Ministry for Work and Family Matters’ decision of 23 January 2014 (see paragraph 10 above). Likewise, the applicant had not challenged the Koper Higher Court’s decision of 23 October 2012 (see paragraph 16 above) by means of a constitutional appeal.
28. Moreover, the Government argued that the obligation to pay for Y’s maintenance was established in the civil proceeding in which the applicant had fully participated. The substitute maintenance proceedings concerned only a cession of part of Y’s claim against the applicant to the Fund and did not concern the applicant’s interest. Even if the applicant had truly not known about the proceedings before the Fund until 2010, this had not impaired his chances to raise his arguments by means of an objection in the enforcement proceedings. Lastly, the Government argued that the applicant had been sent the Fund’s decision, the enforcement order and all other relevant documents, but had not picked them up as he had been living in several countries, including Russia, Hong Kong and Dubai. Thus, even if the mail were sent to his Australian address, which he indicated as a temporary work destination in 1994 while maintaining his permanent residence in Slovenia, it would have been unlikely that he receive it. In any event, the enforcement order had been properly served on the applicant in April 2010 and he had subsequently been able to lodge an objection and an appeal. The enforcement order therefore became final only after the dismissal of the applicant’s appeal.
29. The applicant argued that the proceedings before the Fund and the enforcement proceedings instituted by the Fund had been unfair, because he had not been informed in a timely manner about the Fund’s decision and the enforcement order and because the domestic courts had failed to take due account of his argument that he had paid the child maintenance. In his observations of 20 November 2016, the applicant further argued that Y had admitted in the proceedings initiated in 2012 that she had received the maintenance payments; nevertheless, the Fund had proceeded with the seizure of his assets.
30. The applicant moreover argued that he had exhausted domestic remedies as he had lodged a constitutional complaint.
31. The Court notes that an application may be rejected as an abuse of the right of application if, among other reasons, it was knowingly based on untrue facts (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014). However, in the instant case it considers that although the applicant’s submissions concerning the different sets of proceedings relating to his complaints could have been more exhaustive, they do not give rise to circumstances justifying a decision to declare the application inadmissible as an abuse of the right of individual application.
32. Turning to examine other aspects of the case, the Court notes that two issues, namely the proceedings before the Fund and the enforcement proceedings, should be considered separately.
33. As regards the proceeding before the Fund, the Court notes that the applicant, who alleged having learned of the Fund’s decision in March 2010 (see paragraph 9 above), requested, on 5 November 2013, that it be annulled (see paragraph 10 above). He had subsequently appealed against the decision rejecting his request and the Ministry for Work and Family Matters’ dismissed his appeal on 23 January 2014. The applicant, however, had not challenged the latter dismissal before the Administrative Court (see paragraphs 10 and 27 above) and gave no reasons for this failure. The Court therefore finds that he has failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention.
34. As regards the enforcement proceedings (see paragraphs 11 to 15 above), the Court observes that the applicant’s obligation to pay for Y’s maintenance and the modalities of such payments were determined in the proceedings before the Koper Basic Court (see paragraph 4 above) to which he had indisputably been a party. The enforcement proceedings instituted by the Fund, which had taken over Y’s claim against the applicant, concerned the enforcement of the aforementioned obligation. Even assuming that the applicant had truly learned of the enforcement order only in 2010, the Court notes that this had not prevented him from lodging an objection advancing his argument that he had already paid the maintenance debt (see paragraph 12 above). This objection as well as his subsequent appeal had both been examined on the merits by the domestic courts in adversarial proceedings in which he was able to submit the arguments he considered relevant to his case. The domestic courts found that the applicant had failed to show and had not even alleged to have fulfilled his obligations in accordance with the modalities set out in the 1988 judgment (see paragraphs 13 and 14 above). Domestic jurisprudence submitted by the Government and not disputed by the applicant also indicates that that the child maintenance debtor must fulfil his or her obligations in line with the requirements set out in a relevant judgment and not by some other means not provided therein (see paragraph 23 above). The Court therefore finds no appearance of arbitrariness or unfairness in the domestic courts’ decisions to reject the applicant’s objection and considers this part of the application to be manifestly ill-founded within the meaning of Article 35 §§ 3 (a) of the Convention.
35. In so far as the applicant complained in his observations about the proceeding concerning his objection after the deadline (see paragraphs 16 and 29 above), the Court notes that the final decision concerning these proceedings was issued by the Koper Higher Court on 23 October 2012, while the applicant’s observations were filed with the Court’s Registry on 20 November 2016. This complaint has therefore been filed out of time.
36. Having regard to the foregoing, the Court finds that the application should be declared inadmissible pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 20 July 2017.
Andrea TamiettiVincent A. De Gaetano
Deputy RegistrarPresident
Full & Egal Universal Law Academy