CASE OF ŠAKANOVIČ v. SLOVENIA
Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
Corneliu Bîrsan;David Thór Björgvinsson
6. The applicant was born in 1956 and lives in Jesenice, Slovenia. 7. On 18 February 1995 the applicant's alleged common law partner (izvenzakonski partner), S.A.K., died. 8. On 21 March 1995 the Jesenice Local Court (Okrajno sodišče na Jesenicah) received the coroner's certificate (smrtovnica). S.A.K. was survived by three daughters – one of them, K.Š., was also a daughter of the applicant. 9. On 12 June 1995 the applicant was given notice of the court's intention to hold a hearing and an invitation to attend it. The hearing took place on 28 June 1995. It appears from the records of the hearing that the applicant participated in the proceedings on her own behalf – as the potential heir – and also represented her juvenile daughter. 10. The second hearing fixed for 21 January 1998 was cancelled at the applicant's request. 11. At the third hearing, held on 28 February 1998, the court stayed the inheritance proceedings and instructed the applicant to institute separate civil proceedings with a view to determining the legal nature of her relationship with S.A.K. 12. Consequently, on 9 March 1998 the applicant lodged a claim with the Jesenice Local Court, which, due to lack of jurisdiction, referred the case to the competent Kranj District Court (Okrožno sodišče v Kranju). The first hearing, scheduled for 13 September 1999, was called off at the request of the applicant. The Kranj District Court afterwards held three hearings between 10 February 2000 and 5 December 2000. Between 13 September 1999 and 3 November 2000 the applicant lodged five preliminary written submissions. At the hearing on 5 December 2000 the court issued a judgement rejecting the applicant's claim. The court found that she could not be considered S.A.K.'s common law partner at the time of his death and thus had no inheritance rights in respect of his estate. The applicant appealed to the Ljubljana Higher Court (Višje sodišče v Ljubljani) in January 2001. On 6 March 2002 the court dismissed her appeal. The Ljubljana Higher Court's judgment was served on the applicant on an unspecifed day in March 2002. 13. Subsequently, the inheritance proceedings continued before the Jesenice Local Court. The latter issued a decree of distribution (sklep o dedovanju) on 12 February 2003. Relying on the judgments of 5 December 2000 and 6 March 2002 (paragraph 12 above), the court did not include the applicant as one of S.A.K.'s heirs. The decision was served on the parties to the proceedings on 28 February 2003. 14. Section 164 of the Inheritance Act (Official Gazette SRS, no. 15-645/1976, with amendments, – Zakon o dedovanju) provides that inheritance proceedings should begin ex officio as soon as the court learns that somebody has died or has been pronounced dead. In inheritance proceedings the court should establish the heirs, the property which is to be included in the deceased's estate and the rights of heirs, beneficiaries and others (section 162). 15. According to section 199, after receiving the coroner's certificate (a document concerning personal data about the deceased and his estate and information relevant for the inheritance, normally prepared by a registrar – matičar), the court examines whether it is competent to hold a hearing and, if not, sends the case to the competent court. According to sections 203 and 205, the court must hold a hearing if the deceased owned immovable property. It is the court's obligation to invite those who might be affected to the hearing (section 205). 16. The Act on the Protection of the Right to a Trial without undue Delay (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Journal, No. 49/2006) has been implemented since 1 January 2007. Under its sections 1 and 2, the right to a trial within a reasonable time is guaranteed for a party to court proceedings, a participant under the Act governing non-contentious proceedings and an injured party in criminal proceedings. “(1) In cases where a violation of the right to a trial without undue delay has already ceased and the party had filed a claim for just satisfaction with the international court before the date of implementation of this Act, the State Attorney's Office shall offer the party a settlement on the amount of just satisfaction within four months after the date of receipt of the case referred by the international court for the settlement procedure. The party shall submit a settlement proposal to the State Attorney's Office within two months of the date of receipt of the proposal of the State Attorney's Office. The State Attorney's Office shall decide on the proposal as soon as possible and within a period of four months at the latest. ... (2) If the proposal for settlement referred to in paragraph 1 of this section is not acceded to or the State Attorney's Office and the party fail to negotiate an agreement within four months after the date on which the party filed its proposal, the party may bring an action before the competent court under this Act. The party may bring an action within six months after receiving the State Attorney's Office reply that the party's proposal referred to in the previous paragraph was not acceded to, or after the expiry of the period fixed in the previous paragraph for the State Attorney's Office to decide to proceed with settlement. Irrespective of the type or amount of the claim, the provisions of the Civil Procedure Act concerning small claims shall apply in proceedings before a court.”