CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 24 septembre 2019

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size: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 } .s7E985A65 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; font-size:1pt } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .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 } .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 } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s5F897A7E { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .s2DED9654 { width:26.12pt; display:inline-block } .s8D893B61 { width:152.77pt; display:inline-block } .sAFF36EC2 { width:18.78pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     SECOND SECTION DECISION Application no. 36013/16 Srečko DENŽIČ against Slovenia   The European Court of Human Rights (Fourth Section), sitting on 24   September 2019 as a Committee composed of:   Valeriu Griţco, President,   Egidijus Kūris,   Darian Pavli, judges, and Hasan Bakırcı, Deputy Section Registrar, Having regard to the above application lodged on 17 June 2016, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Mr Srečko Denžič, is a Slovenian national who was born in 1969 and lives in Brežice. He was represented before the Court by Mr D. Medved, a lawyer practising in Krško. 2.     The Slovenian Government (“the Government”) were represented by their Agent, Ms A. Grum, State Attorney. A.     The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. 4.     The applicant is the father of X, who was born on 18 October 1990. 5 .     On 15 October 1998 the K. District Court ended the marriage between the applicant and X’s mother and entrusted her with custody of X. The court also gave a judgment determining how much child maintenance the applicant was to pay for X each month (hereinafter “the 1998 judgment”). 6 .     Following an application by the applicant for the amount of maintenance to be reduced, by a final and enforceable judgment of 21   September 2005, the L. Higher Court reduced the amount which he was obliged to pay for X’s maintenance (hereinafter “the 2005 judgment”). 7 .     Upon reaching the age of majority, X started receiving a disability benefit and an assistance and attendance allowance, in accordance with the Social Care of Mentally and Physically Disabled Persons Act (hereinafter “the Care Act”). Her parents’ parental rights were extended beyond her reaching the age of majority, owing to her severe disability. 1.     Enforcement proceedings 8 .     On 19 March 2014 X, represented by her mother as her statutory representative, applied for enforcement of the 2005 judgment (see paragraph   6 above) and requested the payment of due and unpaid maintenance instalments for the period from September 2009 to March 2014 – a total amount of 6,641.47 euros (EUR) plus statutory default interest. 9 .     On 16 April 2014 the L. Local Court allowed the enforcement application and issued an enforcement order against the applicant. 10.     The applicant objected to the enforcement order, arguing that X had reached the age of majority in 2008 and had been receiving social benefits under the Care Act (see paragraph 7 above). He argued that the Constitutional Court’s decision of 13 December 2007 (see paragraph 17 below) had not been implemented in relation to its instruction that the legislature should remedy the Care Act’s non-compliance with the Constitution, and that he should not bear the burden of the State’s inactivity. He maintained that he had believed that his maintenance obligation had ceased, as had the welfare authorities, which had not informed him of annual adjustments to the amount of maintenance. 11 .     On 11 August 2014 the court dismissed the applicant’s objection, holding that his maintenance obligation as determined by the 1998 judgment and the 2005 judgment (see paragraphs 5 and 6 above) had not ceased. It could only be cancelled in the same way that it had been established, this is by way of a final and enforceable judgment adopted in contentious proceedings. Moreover, the fact that the welfare authorities had not sent him information on adjustments had not had any effect on his maintenance obligation. The applicant appealed. 12 .     On 24 September 2014 the Higher Court granted the applicant’s appeal in so far as it related to some default statutory interest, but dismissed the rest of the appeal, emphasising that the judgments which had imposed the maintenance obligation on him had remained in force and had been enforceable during the period at issue. 13 .     On 15 December 2015 the Constitutional Court refused to accept a constitutional complaint lodged by the applicant for consideration. 2.     Contentious proceedings 14 .     On 17 November 2016 the applicant lodged an action to either cancel his maintenance obligation or, alternatively, reduce the amount of maintenance which he was obliged to pay, arguing that X was receiving social benefits which were sufficient for her subsistence, and that he did not have sufficient means to support her financially. On 16 February 2018 the K. District Court reduced his maintenance obligation. The applicant lodged an appeal. According to the most recent information received from the applicant on 4 July 2018, the proceedings were pending before a higher court. B.     Relevant domestic law and practice 1.     Relevant domestic law 15 .     Until 1 May 2004 the Marriage and Family Relations Act (hereinafter “the Family Act”) provided that the parents of a disabled adult who did not have sufficient means of subsistence were obliged to support the child according to their means and with assistance from the State (section 123). On 1 May 2004 this maintenance obligation was abolished for the parents of adult disabled children who were not in education after they had reached the age of majority (section 26 of the Act Amending the Family Act). 16 .     In accordance with section 132 of the Family Act, a court may, at the request of a beneficiary or person subject to an obligation, reduce or cancel maintenance determined by an enforceable instrument if the needs of the beneficiary or the resources of the person subject to an obligation have changed. 2.     Decision no. U-I-11/07 of the Constitutional Court 17 .     On 13 December 2007 the Constitutional Court found that the Care Act was non-compliant with the Constitution, and it instructed the legislature to remedy this non-compliance within one year. The court noted that in abolishing the maintenance obligation of parents (see paragraph 15 above), the legislature should have provided for a system of social benefits that would cover the basic needs of disabled persons and ensure that they had a standard of living which respected their dignity. By not including in the Care Act mechanisms that would allow the special needs of disabled persons to be taken into account, the legislature had failed to ensure an adequate level of social security for some of them. In view of the vulnerability of the disabled individuals concerned, the court determined that until this unconstitutional legislative lacuna was filled, parents should continue to provide for their disabled adult children in accordance with the Family Act, as in force before the 2004 amendment. COMPLAINTS 18 .     The applicant complained under Article 1 of Protocol No. 1 and Articles 6 and 13 of the Convention about his obligation to pay maintenance for his adult disabled daughter. He argued, inter alia , that the Constitutional Court’s decision of 13   December 2007 (see paragraph 17 above) should have been implemented in relation to its instruction that the legislature should remedy the Care Act’s non-compliance with the Constitution, and thus he would have been relieved of his maintenance obligation. 19 .     The applicant complained under Article 1 of Protocol No. 1 taken together with Article   14 of the Convention and under Article 1 of Protocol No.   12 that the obligation on him to pay for the maintenance of his adult disabled daughter had been discriminatory, given that the parents of healthy adult children were not subject to such an obligation. THE LAW 20.     The Court notes that the applicant complained under Article 1 of Protocol No. 1 and Articles 6 and 13 of the Convention about his obligation to pay maintenance for his adult disabled daughter. The Court, being master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), will examine these complaints from the standpoint of Article 1 of Protocol No. 1 alone, which reads as follows: Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 21.     The applicant also complained under Article 14 of the Convention and Article 1 of Protocol No.   12, which read as follows: Article 14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Article 1 of Protocol No.   12 “1.     The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. 2.     No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.” A. The parties’ submissions 1.     The Government 22 .     The Government submitted that the applicant had failed to exhaust domestic remedies. They argued that, like the amended Family Act in 2004, the Constitutional Court’s decision of 13   December 2007 had been published in the Official Gazette almost a year before the applicant’s daughter had come of age, so he should have been aware of his continuing maintenance obligation and should have lodged an action to cancel his maintenance obligation or reduce the amount of maintenance which he was required to pay. 23 .     Moreover, the Government objected to the applicant’s victim status, arguing that the implementation of the Constitutional Court’s decision would not have changed his legal position. They argued that his complaint under Article 1 of Protocol No. 12 was inadmissible ratione temporis . 2.     The applicant 24 .     The applicant contested the Government’s arguments. He argued that he had not been under an obligation to pursue any proceedings (see paragraph 22 above), since he had legitimately believed that his maintenance obligation had ceased ipso jure once his daughter had come of age, as a result of the amended Family Act, and that in any event he would not have had to pay maintenance had decision no. U-I-11/07 2007 of the Constitutional Court been implemented in a timely manner. B. The Court’s assessment 25.     The Court does not find it necessary to examine the Government’s objections concerning incompatibility ratione temporis and the applicant’s victim status (see paragraph 23 above), because the application is in any event inadmissible for the following reasons. 26 .     The Court reiterates that pursuant to Article 35 of the Convention, a complaint intended to be made subsequently to the Court must first have been made – at least in substance – to the appropriate domestic body, and in compliance with the formal requirements and time-limits laid down in domestic law (for a summary of the general principles concerning non-exhaustion of domestic remedies, see Vučković and Others v. Serbia [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014). 27.     The Court notes that the applicant in the present case essentially complained about his obligation to pay for his child’s maintenance after she had reached the age of majority and had left education. Pursuant to decision no. U-I-11/07 of the Constitutional Court (see paragraph 17 above), which had been delivered before X came of age, the parents of adult disabled children continued to be obliged to provide for them if the means provided by the State were insufficient. It follows that the applicant was obliged to continue paying for his disabled daughter’s maintenance after she had reached the age of majority only in so far as her needs were not sufficiently covered by the social benefits to which she had become entitled (see paragraph 7 above). 28.     The Court further notes that in the impugned enforcement proceedings the applicant was ordered to pay the outstanding maintenance instalments on the basis of final and enforceable judgments which had established his maintenance obligation before X had reached the age of majority and become a beneficiary of social benefits under the Care Act (see paragraphs 5 and 6 above). Once X had become a beneficiary under that Act, the applicant could have lodged an action to cancel the maintenance obligation (see paragraphs 11 and 16 above) and argued that, in view of X’s other means of subsistence, he was no longer obliged to provide for her. 29.     The Court observes that the applicant did not lodge such an action once X reached the age of majority. However, he has not argued, let alone shown, that X’s social benefits were insufficient and that consequently his maintenance obligation could not be lifted. It was only in November 2016 that the applicant initiated contentious proceedings seeking the cancellation of his maintenance obligation on the basis of his daughter’s entitlement to social benefits as a disabled adult (see paragraph 14 above). On 4 July 2018 those proceedings were still pending before the second-instance court, and the Court is not in a position to speculate as to their outcome. 30.     As regards the applicant’s argument that he did not lodge an action because he believed that his maintenance obligation had ceased to exist ipso   jure once his daughter had turned eighteen, as a result of the amended Family Act (see paragraph 24 above), the Court observes that decision no.   U-I-11/07 of the Constitutional Court (see paragraph 17 above), which had reintroduced a maintenance obligation for the parents of adult disabled children, had been published in the Official Gazette and had come into force several months before the applicant’s daughter reached the age of majority. Moreover, in that decision, the Constitutional Court identified an unconstitutional legislative gap as regards the financial status of disabled adults, but left the question of how to regulate that specific matter in the future to the discretion of the legislature. The decision also contains nothing which could reasonably have led the applicant to believe that his maintenance obligation had ceased to exist merely as a result of that decision (see paragraph 24 above). Therefore, the Court finds that the applicant could and should have known, if necessary following advice from a lawyer, that under the law in force at the time when his daughter came of age, his maintenance obligation would not automatically cease to exist, and that therefore he should have lodged an action to cancel his maintenance obligation if he considered that he should no longer be responsible for X’s maintenance. 31.     Having regard to the foregoing, the Court does not consider it appropriate to deal with the issue of the applicant’s obligation to pay maintenance for his adult disabled daughter without the domestic authorities having an opportunity to examine the issue in the domestic proceedings available to the applicant (see paragraph 26 above). The same goes for his complaint concerning the alleged discrimination (see paragraph 19 above), which is intrinsically linked to the above-mentioned issue. Accordingly, the Court finds the application inadmissible under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 17 October 2019.   Hasan Bakırcı   Valeriu Griţco   Deputy Registrar   President