THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 9296/02
by Franjica ŽAGAR
against Slovenia
The European Court of Human Rights (Third Section), sitting on 23 November 2006 as a Chamber composed of:
MrJ. Hedigan, President,
MrB.M. Zupančič,
MrC. Bîrsan,
MrV. Zagrebelsky,
MrsA. Gyulumyan,
MrDavid Thór Björgvinsson,
MrsI. Ziemele, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged on 13 February 2002,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
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
The applicant, Mrs Franjica Žagar, is a Croatian national who was born in 1955 and lives in Prezid.
The Slovenian Government (“the Government”) were represented by their Agent, Mr L. Bembič, State Attorney-General.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 20 June 1991 the Rijeka Municipal Court (Općinski sud u Rijeci), Croatia established that J.J., a Slovenian national living in Slovenia, was the father of the applicant’s son, Žan Žagar, born in 1980. The court ordered J.J. to pay child support.
At an undetermined time Franjica Žagar sought an enforcement of the Rijeka Municipal Court’s judgment with the Ljubljana Basic Court (Temeljno sodišče v Ljubljani) on behalf of her minor son.
On 19 April 1993 the Ljubljana Basic Court upheld the request and allowed the enforcement in order to collect the unpaid child support. The enforcement officer (izvršitelj) tried, on two occasions, to enforce the judgment by attachment (zaplemba) of the debtor’s personal property, but the latter evaded the enforcement.
On 15 November 1993 J.J. objected to the enforcement order. The objection was allowed on 24 May 1994.
On 22 June 1994 Franjica Žagar appealed against the decision of 24 May 1994 to the Ljubljana Higher Court (Višje sodišče v Ljubljani).
On 28 June 1994 the Convention took effect with respect to Slovenia.
On 8 November 1994 the Ljubljana Higher Court upheld the appeal and remitted the case for fresh examination.
On 1 January 1995 the Ljubljana Local Court (Okrajno sodišče v Ljubljani) gained jurisdiction in the present case due to the reform of the Slovenian judicial system.
On 26 September 1995 the court denied the debtor’s objection of 15 November 1993 and upheld the enforcement order.
On 17 October 1995 J.J. lodged an appeal with the Ljubljana Higher Court.
On 6 December 1995 the court dismissed the appeal. The enforcement order thus became final.
On 12 April 1996 the enforcement officer attempted to carry out the enforcement order, but J.J. was not to be found.
On 18 September 1996 the Ljubljana Local Court informed Franjica Žagar that the enforcement was unsuccessful and requested her to furnish the debtor’s new address. She informed the court of the debtor’s new address on 1 October 1996.
On 25 March 1997 Franjica Žagar requested the court to continue with the enforcement.
The attempt of attachment made in April 1997 was also fruitless.
On 21 August 1997, after the court had learned that the debtor had moved, the case was transferred to the Cerknica Local Cour (Okrajno sodišče v Cerknici).
On 16 September 1997, after another attempt of attachment was made, the enforcement officer informed the court that no objects suitable for attachment were found at the debtor’s new address.
On 20 November 1998 Franjica Žagar again urged the court to find a solution to the issue.
On 7 January 1999 the court made inquiries with the debtor’s bank, employer and at his address to determine how to proceed with the enforcement. As a result, the court requested Franjica Žagar to again propose the attachment of the debtor’s property.
Upon reaching the age of maturity, Mr Žan Žagar, represented by a lawyer, requested the continuation of the enforcement proceedings by attachment of debtor’s personal property or funds.
Following the changes in the legislation, the court appointed a new enforcement officer and requested Žan Žagar, on 6 February 2001, to pay an advance on the enforcement officer’s expenses within eight days. The time-limit was subsequently extended and Žan Žagar paid the advance on 19 April 2001.
On 9 May 2001 the court ordered the enforcement officer to proceed with the enforcement.
A new attempt of attachment was unsuccessful, because the debtor had moved again.
On 19 February 2003 the court requested Žan Žagar to provide the debtor’s new address. He complied the following day.
On 24 March 2003 the court appointed a new enforcement officer, since the previous one ceased to exercise his functions.
On 17 February 2004 Žan Žagar made a proposal for enforcement by new means for attachment. He also sought the re-evaluation of the payments due.
On 24 February 2004 the court dismissed the proposal for re-evaluation. However, on 11 March 2004, the court upheld the proposal for enforcement by new means for attachment.
On 8 April 2004, Žan Žagar appealed against the decision of 24 February 2004 to the Ljubljana Higher Court.
On the same day, the creditor objected to the order of 11 March 2004.
The court refused the objection on 19 April 2004.
On 20 May 2004 the debtor appealed to the Ljubljana Higher Court.
On 23 September 2004 the Ljubljana Higher Court dismissed the appeals of 8 April and 20 May 2004.
On 28 December 2004 the enforcement officer was informed of the Ljubljana Higher Court’s decision.
On 10 October 2005 the court ordered the enforcement officer to report on the progress made.
On 12 October 2005 the enforcement officer learned that the debtor had been imprisoned on 7 April 2005 for a period of one year.
The proceedings are still pending.
COMPLAINTS
The applicant complained under Article 6 § 1 of the Convention that her right to a fair trial was violated by an excessive length of proceedings. In substance, she also complained about the lack of an effective domestic remedy in respect of the excessive length of the proceedings (Article 13).
THE LAW
1. The Court must first address the issue of Mr Žan Žagar’s entitlement to pursue the application originally introduced by the applicant who died on 17 February 2005, in the course of the proceedings before the Court.
The applicant’s son Mr Žan Žagar’s has declared on 18 May 2005 that he wished to pursue his mother’s application before the Court. He was also the party to the proceedings before the domestic courts, although he was represented in these proceedings by his mother until he became of age.
The Court recalls that in various cases where an applicant died in the course of the proceedings it has taken into account the statements of the applicant’s heirs or of close members of his family who expressed the wish to pursue the proceedings before the Court (see, for example, the X. v. France judgment of 31 March 1992, Series A no. 234-C, p. 89, § 26, and Arsenić v. Slovenia, nos. 22174/02 and 23666/02, §§ 15-19, 29 June 2006).
In the present case it is the late applicant’s next of kin who wish to pursue the application before the Court.
The Court therefore considers that the conditions for striking the case out from the list of pending cases, as defined in Article 37 § 1 of the Convention, are not met and that it must accordingly continue to examine the application at Mr Žan Žagar’s request. The Court will, however, refer to Mrs Franjica Žagar as the applicant.
2. 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. She relied on Article 13 of the Convention, which 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) Article 6 § 1
The Government agreed that what was at issue in the impugned proceedings was of great importance for the applicant. They submitted that these proceedings were not complex. In the Government’s view, the domestic courts involved examined the case diligently and rendered the decisions concerning enforcement expeditiously. Nonetheless, inquiring after the debtor’s address and his property was time-consuming in the present case and the delays which occurred were the result of the debtor’s changing the address and the fact that he had no property that could have been attached. This was evident also from the seven unsuccessful attempts of attachment performed by the appointed enforcement officers.
The applicant made no response to the Government’s observations.
The period to be taken into consideration began on 28 June 1994, the day when the Convention entered into force with respect to Slovenia, and has not yet ended. The relevant period has therefore lasted over twelve years and four months for two levels of jurisdiction. Due to remittals and objections the decisions were rendered in seven instances.
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).
The Court considers that an enforcement of a judgment concerning child support is usually of considerable importance for the applicant. This makes the need for a prompt examination of the case more pressing than usually. The Court notes, in this regard, that the domestic courts rather swiftly decided on the applicant’s requests, the debtor’s objections, and their appeals. Notably, the longest period was that of eleven months which elapsed before 26 September 1995, when the Ljubljana Local Court dismissed the debtor’s objection against the enforcement order.
The Court further considers that the State cannot be held responsible for the delays resulting from scrupulous enforcement attempts which were unsuccessful because the debtor has no property which could be attached and sold with the aim of paying the sums he owed.
Having examined all the material submitted to it, and having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was not excessive. The applicant’s complaint is therefore manifestly ill-founded. It must be rejected within the meaning of Article 35 §§ 4 and 5.
b) Article 13
The Court recalls that Article 13 requires the State to provide an effective legal remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (see Sürmeli v. Germany [GC], no. 75529/01, § 98, 8 June 2006). Considering that the complaint about the excessive length of the proceedings is incompatible ratione materiae with the provisions of the Convention, the Court finds that the applicant did not have an arguable claim that his right to an effective remedy within the meaning of Article 13 was violated. Therefore, this claim does not reveal any appearance of violation of this provision.
Accordingly, this complaint is manifestly ill-founded and must be declared inadmissible in the meaning of Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Vincent BergerJohn Hedigan
RegistrarPresident
Full & Egal Universal Law Academy