CASE OF BEGUS v. SLOVENIA
Remainder inadmissible;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska
5. The applicant was born in 1953 and lives in Ljubljana. 6. The applicant is the director and sole owner of the limited liability company Energohit d.o.o., which provides consultancy, engineering and representation services. 7. On 25 October 1996 the applicant, representing his company Energohit, instituted enforcement proceedings against another company, L., for the payment of a bill for 887,250 Slovenian tolars (SIT). On 5 November 1996 the Ljubljana Local Court, relying on a valid purchase order submitted by the applicant’s company, upheld his request. The operative part of the court’s decision stated that company L. should pay the debt to the applicant’s company and that, if not paid, this claim should be enforced. 8. Company L. lodged an objection. It argued that the purchase order to which the applicant’s company referred had not been signed by it but by another company. Following the objection, the Ljubljana Local Court, on 9 December 1996, set aside its enforcement decision and the case was transferred to the Ljubljana District Court to decide on the dispute. 9. Further to the Ljubljana Local Court’s decision of 9 December 1996, the proceedings, which were governed by legislation concerning commercial disputes, were conducted before the Ljubljana District Court. The latter held three hearings, the first one on 16 February 2000. On 20 April 2000 the court upheld the applicant’s company’s claim for SIT 523,250 and rejected the remainder finding that it had already been paid. The judgment was served on the applicant’s company on 29 August 2000. 10. Following an appeal by company L., the judgment was quashed on 19 September 2002. Subsequently, the Ljubljana District Court re-examined the case, and, after holding two hearings, rejected the applicant’s company’s claim on 28 March 2003. The judgment was served on the applicant’s company on 8 July 2003. 11. Further to the applicant’s company’s appeal, the second judgment was also quashed (on 20 May 2004) and the case was re-examined at a new hearing held by the Ljubljana District Court on 22 October 2004. On that date the court upheld the claim for the sum of SIT 523,250 in a judgment, which was served on the applicant’s company on 28 January 2005. Company L.’s appeal was rejected by the Ljubljana Higher Court on 16 June 2005. On that date the judgment of 22 October 2004 became final and enforceable. The Ljubljana Higher Court’s judgment was served on the applicant’s company on 9 July 2005. 12. On 5 October 2005 the applicant’s company lodged a request for execution of the above judgment against company L.’s monetary assets, movable and immovable property. The applicant was twice asked to supplement the request with the necessary documents. On 20 December 2005 the Ljubljana Local Court gave a decision allowing the enforcement. 13. On 23 February 2006 the court appointed an enforcement officer. 14. On 12 May 2006 the applicant’s company asked the court to order company L. to supply a list of its assets. On 22 May 2006 the court issued an order in line with the applicant’s company’s request. On 21 June 2006 company L. supplied the list. 15. On 5 January 2007 the court decided that the seizure of company L.’s immovable property should be considered in separate proceedings, which were discontinued, presumably without success, on 11 June 2008. Subsequently, the applicant’s company was requested to specify which further assets could be subject to the enforcement. 16. Further to receiving a letter from company L.’s bank noting that there were no monetary assets and no transactions on its bank account, the court, on 25 March 2009, discontinued this aspect of the enforcement. The applicant’s company lodged an appeal, which was rejected on 17 June 2009 by the Ljubljana Higher Court. 17. On 25 September 2009 the enforcement officer informed the court that company L. had moved from its address, which was brought to the applicant’s company’s attention. On 15 February 2010 the applicant’s company informed the court of the new address. 18. In the course of the proceedings the applicant’s company twice requested a review of alleged irregularities in the process of execution; however, no decision appears to have been issued in reply to these requests. 19. On 13 July 2010 company L. was removed from the register of companies following a request by the tax authorities to that effect. As a result, the enforcement proceedings were discontinued on 21 December 2010. The applicant’s company did not request that the enforcement be continued against potential active shareholders in accordance with the relevant provisions of the Financial Operations, Insolvency Proceedings and Compulsory Dissolution Act. 20. The Protection of the Right to Trial without Undue Delay Act (Official Gazette nos. 49/2006 and 58/2009 – “the 2006 Act”) entered into force on 17 May 2006. On 1 January 2007 it became operational and has been implemented since that date. It applies to parties to court proceedings, participants in proceedings conducted under the statute regulating non-contentious procedure, and injured parties in criminal proceedings. 21. According to the 2006 Act, a claimant may use a supervisory appeal and a motion for deadline in order to expedite the proceedings. In addition to these acceleratory remedies, the 2006 Act also provides for the opportunity to obtain redress by means of a compensatory remedy, namely by bringing a claim for compensation. With regard to a compensatory remedy, the 2006 Act provides that two cumulative conditions must be satisfied in order for a party to be able to lodge a claim for compensation. Firstly, during the proceedings the applicant must have successfully availed himself of the supervisory appeal or have lodged a motion for a deadline, regardless of the outcome. Secondly, the proceedings must have been terminated.