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
