CASE OF KLINAR v. SLOVENIA
Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Rajko Pirnat
5. The applicant was born in 1943 and lives in Jesenice. 6. On 20 August 1994 the applicant’s mother, A.K., died. 7. On 7 October 1994 the Jesenice Local Court (Okrajno sodišče na Jesenicah) received the coroner’s certificate (smrtovnica). 8. On 22 March 1995 the applicant was given notice of the court’s intention to hold a hearing in the inheritance proceedings and received an invitation to attend it. 9. The court held hearings on 5 April and 25 October 1995. 10. Meanwhile, on 5 July 1995, the applicant lodged written submissions. 11. On 16 June 1997 the court issued an interim decision concerning the inheritance of A.K.’s ownership certificate (lastninski certifikat). 12. On 27 June and 5 September 2000 hearings were held. They were adjourned so as to allow the heirs to reach an agreement in respect of the inheritance. The subsequent negotiations were apparently unsuccessful. 13. On 8 November 2000 the applicant lodged written submissions. 14. At the hearing held on 14 November 2000 the court decided to stay the proceedings and instructed the parties to institute separate contentious proceedings with a view to determining the extent of A.K.’s estate which was disputed by the heirs. 15. On 5 February 2001 one of the heirs lodged a civil claim with the Kranj District Court (Okrožno sodišče v Kranju) in accordance with the Jesenice Local Court’s instructions (paragraph 14 above). On 27 October 2003 the civil proceedings ended with an agreement between the heirs and the inheritance proceedings subsequently continued. 16. In the meantime, on 19 December 2000 the Jesenice Local Court rejected the applicant’s request for interim measures. In addition, on 15 March 2001 the Jesenice Administrative Unit (Upravna enota Jesenice) issued a decision indicating that the farmland which was part of A.K.’s estate was not under the special protection which would prevent its division. The Jesenice Local Court received that decision on 18 May 2001. 17. On 28 November 2003 the Jesenice Local Court issued a decree of distribution (sklep o dedovanju) dividing the remainder of A.K.’s estate (see paragraph 11 above) between her four daughters. The decree was served on the applicant on an unspecified date in December 2003. 18. 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). 19. 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). 20. 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. 21. Section 25 lays down the following transitional rules in relation to applications already pending before the Court: “(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.”