Communicated on 7 July 2014
FIFTH SECTION
Application no. 47091/10
Vanja LOMBAR
against Slovenia
lodged on 4 August 2010
STATEMENT OF FACTS
The applicant, Ms Vanja Lombar, is a Slovenian national, who was born in 1974 and lives in Kranj. She is represented before the Court by Mr B. Rejc, a lawyer practising in Ljubljana.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On an undefined date in 2002 the company A. instituted enforcement proceedings against B., the applicant’s father.
On 1 December 2003 the Ljubljana Local Court issued a writ of execution against B. concerning the amount of EUR 572 and granted enforcement on debtor’s movable property.
On 27 November 2007 the bailiff entered into the house in which the applicant and her father lived in separate households by breaking the main door and seized the applicant’s movable property, including her computer and printer, a painting, a living room couch set, exercise machine and a golden bracelet. According to the bailiff’s protocol, the value of seized property was approximately EUR 1,300. The bailiff later changed the locks on the main entrance doors to the building. This prevented the applicant from entering her apartment.
On 24 December 2007 the applicant lodged an objection as a third party (ugovor tretjega) and a motion to postpone the enforcement, claiming that the seized objects were her possessions and that there was no legal basis for their seizure.
On 6 March 2008 B. lodged a motion to annul the finality and enforceability clause (potrdilo o pravnomočnosti) in respect of the writ of execution of 1 December 2003, submitting that the decision had not been properly served on him.
On 14 March 2008 the Ljubljana Local Court dismissed the applicant’s objection and her motion to postpone the enforcement. It further ordered the applicant to institute within thirty days from the date of finality of the decision, an action to establish the impermissibility of the enforcement on her personal property. The court postponed the decision on the costs of proceedings until the expiry of the time-limit given to the applicant or until the termination of the proceedings in question.
On 17 March 2008 the Ljubljana Local Court upheld B.’s motion of 6 March 2008 and annulled the finality and enforceability clause on the writ of execution of 1 December 2003.
On 8 April 2008 the Ljubljana Local Court annulled the writ of execution in the part allowing execution on movable property.
On 25 April 2008 the applicant, in accordance with the order of the court of 14 March 2008, lodged an action to establish the impermissibility of the enforcement on her possessions and paid the court fees in the amount of EUR 147.79. She also claimed the reimbursement of the costs incurred by her in the enforcement proceedings in connection with her objection as a third party.
On 10 July 2008 the Ljubljana Local Court rectified the decision of 8 April 2008 by adding to its operative part the annulment of the enforcement acts undertaken so far. According to the applicant this order was not served on her, as she was not a party to the proceedings.
On 30 September 2008 the Ljubljana Local Court judge C., acting on her own motion within the enforcement proceedings, issued an order allowing the applicant to retrieve the seized possessions.
On 21 October 2008 the Ljubljana Local Court held a hearing in the contentious proceedings in respect of the applicant’s action to establish the impermissibility of the execution. Judge C. on her own motion, referring to the orders issued in the enforcement proceedings on 10 July and 30 September 2008 respectively, requested the applicant to specify the legal interest for obtaining a judgment. The applicant maintained that she would not withdraw the claim, since she had been ordered by the court to institute contentious proceedings and that she still had a legal interest to obtain a decision which would confirm that the enforcement on her property was not permissible in the first place. She submitted that since she was not a party to the enforcement proceedings, the latter could not have had an impact on her legal position, including the obligation to pay for the costs of proceedings.
On the same day the court rejected the applicant’s action as inadmissible. The court held that as her situation had been remedied by an order issued in the enforcement proceedings, the applicant had lost all her legal interest to obtain a decision. It further ordered the applicant to pay for the costs of the proceedings of the opposite party in the amount of EUR 789. This decision was based on the assumption that losing interest in obtaining a decision was tantamount to an unsuccessful claim.
On 12 December 2008 the applicant lodged an appeal against the decision of 21 October 2008. She maintained inter alia that she had not been served with any of the decisions issued in the enforcement proceedings and that therefore she still had a legal interest in obtaining a decision on the merits. She further submitted that the fact that the court annulled the writ of execution of 1 December 2003 issued against her father, had not remedied her situation. She maintained in this respect that the seizure of her possessions was not permissible in the first place. She alleged that even if she could now claim her possessions back the creditor still had a lien on them and could, if a new writ of execution were to be issued against her father, again seize the same objects. She also submitted that it was unreasonable that she should bear the costs of the proceedings, since at the time when she had introduced it, the action to establish the impermissibility of the enforcement was the only venue for her to retrieve her possessions. Finally, she claimed that the court had also failed to take any decision on her claim for reimbursement of costs for her objection as a third party.
On 8 April 2009 the Ljubljana Higher Court dismissed the applicant’s appeal, upholding the lower court’s decision in respect of loss of legal interest and obligation to pay for the costs of the opposite party. It did not address the applicant’s submissions in respect of the claim for reimbursement of costs incurred in the enforcement proceedings.
The applicant lodged a constitutional complaint which was dismissed by the Constitutional Court on 1 February 2010.
The applicant retrieved her possessions on 26 February 2010. She had to bear the costs of transporting the objects from the place of storage to her home.
The case between the applicant’s father and A. was later settled and the applicant’s father was required to pay A. the amount of EUR 130.
B. Relevant domestic law
The relevant provisions of the Enforcement and Securing of Civil Claims Act (Zakon o izvršbi in zavarovanju) in force at the relevant time (consolidated version published in the Official Gazette of Republic of Slovenia 3/2007) guiding the procedure on objections as a third party (ugovor tretjega) in the enforcement proceedings read, in so far as relevant, as follows.
Section 64:
“A person, who can satisfactorily demonstrate that he has a right over an object of enforcement which prevents enforcement, can lodge an objection to the enforcement order in which he requests the court to declare that enforcement in respect of that object is not permissible.
..."
Section 65:
“...
If the creditor within a given time-limit declares that he disagrees with the objection, the court dismisses the objection.
A person who lodged the objection can within thirty days from the date on which the order described in the aforementioned paragraph has become final, institute an action for the establishment of the impermissibility of the enforcement in respect of that object.
...
If the court establishes by a final judgment that the enforcement which has not yet become final or which has been postponed is not permissible in respect of a certain object, the court stays the enforcement in respect of that object and annuls the writ of execution.
...”
COMPLAINTS
1. The applicant complains under Article 1 of Protocol No. 1 to the Convention, claiming that the seizure of her possessions was unlawful and that she did not have a fair opportunity to prove that the property seized belonged to her and not to her father. She observes that her claim in the contentious proceedings was dismissed for lack of legal interest, that she had to pay for the costs of the proceedings and of the transportation of the items seized and that she was not able to retrieve her possessions for a considerable amount of time (two years and three months). In the applicant’s opinion the accumulation of these facts amounted to a disproportionate interference with her right to the peaceful enjoyment of possessions.
2. The applicant further complains under Article 6 § 1 of the Convention that the rejection of her claim for the reimbursement of costs by the Ljubljana Local Court amounted to a denial of her right to access to a court.
3. She also complains under Article 6 § 1 of the Convention that she was not afforded a fair hearing, in particular that she was put at a substantial disadvantage vis-à-vis her opponent which violated the principles of adversarial proceedings and equality of arms and that the reasoning of the court in respect of the costs was arbitrary.
4. Finally, she complains under Article 13 of the Convention that she did not have access to an effective legal remedy in respect of her complaint under Article 1 of Protocol No. 1 to the Convention.
QUESTION TO THE GOVERNMENT
Having regard to the fact that the applicant’s possessions were seized during two years and three months due to a third person’s debt, to the disproportion between the amount of the debt and the value of the seized possessions, the fact that the applicant had to pay for the costs of proceedings, including the costs of the opposite party, was there, contrary to Article 1 of Protocol No. 1 to the Convention, a disproportionate and excessive burden imposed on the applicant?
Full & Egal Universal Law Academy