CEDH · CASELAW;COMMUNICATEDCASES;ENG — 18 mai 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both }   Communicated on 18 May 2016   FOURTH SECTION Application no. 41920/11 Rado ANTOLOVIĆ against Slovenia lodged on 4 July 2011 STATEMENT OF FACTS The applicant, Mr Rado Antolović, is a Slovenian national who was born in 1959 and lives in Sydney. He is represented before the Court by Mr   E.   Dokič, a lawyer practising in Piran. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant was married to X. They had a daughter, Y, born in 1987. By a judgment issued on 30 September 1988, the Koper Basic Court (a)   granted a divorce between the applicant and X; (b) awarded X the custody of Y; (c) granted the applicant contact rights; and (d) ordered the applicant to make regular child maintenance payments of 500,000 Yugoslav dinars from 1 October 1988 in cash directly to X. Subsequently, the applicant moved to Australia. On 30 November 1994 he notified the Piran Administrative Unit of his new address in Australia. On an unspecified date X lodged a substitute child maintenance claim on behalf of Y with the Public Guarantee and Maintenance Fund of the Republic of Slovenia (hereinafter “the Maintenance Fund”). By a decision of 11   July 2001 the Maintenance Fund granted substitute child maintenance to Y of 14,860 Slovenian tolars (approximately 62 euros (EUR)) from 1   November 2001. On 12 October 2001 the decision became enforceable. By a letter of 15 November 2001 sent to the applicant’s address in Piran the Maintenance Fund informed the applicant about the first payment of the substitute child maintenance. On 12 November 2004 the Maintenance Fund initiated enforcement proceedings against the applicant requesting the reimbursement of 683,712   Slovenian tolars (approximately 2,853 EUR) in respect of the substitute child maintenance it had paid from 1   November 2001 to 31   October 2004. On 1 April 2005 the Piran Local Court issued an enforcement order. According to the applicant, the enforcement order was sent only to his address in Piran. On 6 April 2010, after being informed of the enforcement proceedings, the applicant lodged an objection. He complained that the enforcement order had not been served on him as he no longer lived in Piran. Moreover, he had not been informed of the transfer of the child maintenance claim to the Maintenance Fund. The applicant stressed that he had communicated his new address in Australia to the Piran Administrative Unit and that the Maintenance Fund could have easily obtained it. The applicant submitted that X had unlawfully obtained the decision on the substitute child maintenance and that it had been made despite the fact that he had been paying child maintenance and had even exceeded his child maintenance obligation. The applicant maintained that he had made the following payments: on 27   January 2003 EUR 5,000; on 14 March 2003 EUR 9,993; on 4   February 2004 EUR 49,950; on 5   February   2004 EUR 4,990; and on 26   June 2006 EUR 5,000. The applicant pointed out that he had been making payments even before 2003. For example, in 2002 he had given EUR 12,000 in cash to the child. In order to prove those submissions, the applicant submitted bank slips showing that the above-mentioned payments had been made to Y’s bank account. He also requested to be heard and for Y’s bank account to be checked. On 14 April 2010 the Piran Local Court dismissed the applicant’s objection. The court held that a child maintenance debtor had no locus standi in proceedings concerning a transfer of a child maintenance claim to the Maintenance Fund. Those proceedings concerned only the child’s right to financial support. The notice of a transfer of a child maintenance claim could only have affected the Maintenance Fund’s right to claim reimbursement if the applicant had proved that he had fulfilled his obligation to pay child maintenance. However, the applicant had neither alleged nor shown that he had been paying child maintenance to X in accordance with the 1988 judgment. The bank slips submitted by the applicant indeed showed that payments had been made to Y’s account, however, there was no indication of the reason for the payments or the person who had made them. On 28 October 2010 the applicant appealed. Firstly, he pointed out that the Maintenance Fund’s decision of 11 July 2001 had never been served on him so he had had no opportunity to prove that he had fulfilled his obligation. Moreover, according to the applicant, the bank slips submitted to the court clearly proved that he had been paying child maintenance. By refusing to admit the evidence proposed by the applicant, the court had violated procedural rules. It had further prevented the applicant from objecting effectively and had violated his right to a remedy. Lastly, the applicant submitted that proceedings for enforcement should have been instituted against X as she had deceived the Maintenance Fund by claiming that the applicant had not been paying child maintenance. On 17 September 2010 the Koper Higher Court dismissed the appeal. It acknowledged that the Maintenance Fund was obliged by law to inform the applicant of the transfer of the child maintenance obligation. However, the rationale behind that obligation was simply to prevent the debtor and the Maintenance Fund from paying child maintenance at the same time. If that had been the case, the applicant could have objected to the Maintenance Fund’s claim. However, the applicant had alleged that he had made payments to the child’s account, not directly to the mother in cash as determined in the 1988 judgment. Since the applicant had neither alleged nor shown that he had correctly performed his child maintenance obligation, the local court had not been obliged to admit the evidence he had proposed. On 28 October 2010 the applicant lodged a constitutional complaint, reiterating his previous complaints. He further complained about the arbitrariness of the Higher Court’s reasoning that he had not fulfilled his obligation properly by not making cash payments to his former wife. The applicant stressed that his daughter’s bank account had been administered by X as her legal guardian. Therefore, even if the payment had not been made strictly in accordance with the judgment of 1988, X had indeed received child maintenance. Section 280(1) of the Obligations Act clearly stated that an obligation had to be performed to the creditor or a person designated by law, a court ruling or contract between the creditor and debtor, or a person designated by the creditor alone. That provision gave the applicant the possibility to pay child maintenance either to the child or to the mother. On 6 January 2011 the Constitutional Court dismissed the constitutional complaint, finding that it did not concern an important constitutional question or entail a violation of human rights that had serious consequences for the applicant. On 11 January 2011 the Constitutional Court’s decision was served on the applicant. B.     Relevant domestic law Section 123 of the Marriage and Family Relations Act (“the MFR Act”) states that parents are obliged to support their children until they reach the age of majority by providing the living conditions needed for a child’s development, according to their abilities and capacity. If a child is engaged in full-time schooling, even if he or she is enrolled in ongoing part-time studies, the parents are obliged to support him or her after he or she has reached the age of majority, but only up to the age of twenty six. The MFR Act further states that minors shall be represented by their parents (Section 107(1)). Minors who have reached the age of fifteen can themselves conclude legal transactions, unless otherwise determined by law. The approval of the parents is required to make such transactions valid if they are of such an importance as to influence the life of the minor in its essentials, or if they are such that they may also influence their life after reaching the age of majority (Section 108). A child’s property is to be administered by the parents in the child’s interests until the child’s full legal age (Section 109). A minor who has reached the age of fifteen and is employed may dispose of his or her own personal income, being at the same obliged to contribute to his or her subsistence and education (Section 112). According to the Public Guarantee and Maintenance Fund of the Republic of Slovenia Act (Official Gazette no. 10/98 of 12 February 1998 with further amendments; “the GMF”) a child is entitled to substitute maintenance where it has been granted under a final court ruling, provided that the child is not yet eighteen years old and is a national of the Republic of Slovenia and permanently resident there, or is a foreigner permanently resident in Slovenia and covered by an appropriate bilateral international agreement or reciprocal arrangement (Section 21a). A child is entitled to substitute maintenance if enforcement proceedings have been unsuccessful or have been ongoing for over three months (Section   21c(1)). The GMF further states that the right to substitute maintenance shall cease, inter alia , at the request of the child maintenance debtor, provided that he proves that he has made the maintenance payments due and that he has also made further payments of child maintenance for two months in advance (Section 21f). The child’s claim against the maintenance debtor is transferred to the Maintenance Fund up to an amount granted under the GMF on the day the decision granting rights under the Act is executed (Section 28(1)). Upon transferring the claim the Fund enters into the position of a creditor up to the amount paid under the decision to grant an entitlement under the GMF (Section 28(3)). The Fund shall immediately inform the maintenance debtor of the transfer of the maintenance claim (Section 28(4)). Section 280 of the Obligations Act (Official Gazette no. 83/01 of 25   October 2001) provides that an obligation must be performed to the creditor or a person designated by law, a court ruling or contract between the creditor and debtor, or as designated by the creditor alone. Performance will also be considered valid when made for a third person if the creditor subsequently approves of such performance or makes use of it. COMPLAINTS The applicant complains in substance under Article 6 of the Convention that he was unable to effectively present his case as the 2001 decision on substitute child maintenance and the 2004 enforcement order were never served on him and consequently he was unable to prove that he had been paying child maintenance. The applicant further complains that the evidence he proposed was rejected without a valid justification. He also contests the domestic courts’ interpretation that he had not adequately fulfilled his obligation by making payments in cash directly to the mother of his child as arbitrary and unfounded, considering that the mother had accepted the payments.     QUESTIONS TO THE PARTIES 1.     Did the failure to inform the applicant in due time of the decision on the transfer of the maintenance claim and of the enforcement order deprive him of effective access to a court, in breach of Article 6 § 1 of the Convention? 2.     Having regard to the domestic courts’ refusal to admit the evidence proposed by the applicant in the enforcement proceedings, was his main argument to the effect that he had been paying child maintenance for his daughter properly examined, as required by Article 6 § 1 of the Convention, and were the proceedings “fair” within the meaning of this provision?