Varuh človekovih pravic

Enforcement of claims in times of emergency due to the declared virus epidemic

The Ombudsman’s office was contacted by a debtors' counsel regarding the enforcement case Ref No I 52/2020 conducted by the Kamnik Local Court. In his main argument he stressed that, on the basis of the enforcement order, the debtors timely and fully settled the claim and the notice thereof was sent to the enforcement court on the next day after the payment was made (19 March 2020), however, the court has (yet) not issued the decision to stay the enforcement. The seizure of funds held in the account of a payment institution of both debtors was permitted as an enforcement instrument. Because both debtors are retired persons, their subsistence depends exclusively on their pension benefits.

On 12 March 2020, Slovenia officially declared a SARS-CoV-2 (COVID-19) epidemic, which affected the operation and work of courts. On the basis of the order of the President of the Supreme Court of the Republic of Slovenia No Su 315/2020 of 30 March 2020 on special measures due to the occurrence of grounds referred to in paragraph one of Article 83a of the Courts Act (ZS) and grounds referred to in paragraph one of the Act on provisional measures for judicial, administrative and other public matters to cope with the spread of infectious disease SARS-CoV-2 (COVID-19) (ZZUSUDJZ), the operation of courts (including enforcement courts) has been limited (to urgent matters only) as of 16 March 2020. The debtors' counsel alleged that, in spite of his efforts, the Kamnik Local Court refused to issue the decision to stay the enforcement.

Certain solutions concerning enforcement proceedings in times of emergency due to the SARS-CoV-2 (COVID-19) epidemic were introduced in the Act Determining the Intervention Measures to Contain the COVID-19 Epidemic and Mitigate its Consequences for Citizens and the Economy (ZIUZEOP) published in the Official Gazette of the Republic of Slovenia [Uradni list RS], No 47/2020, on 10 April 2020. In accordance with Article 93 of this Act, the execution of enforcement orders that are subject to enforcement proceedings conducted under the Claim Enforcement and Security Act (ZIZ) shall be postponed as of the entry into force of this Act. However, under paragraph three of the same Article, the foregoing shall not apply if the enforcement applies to the claims for child maintenance and compensation for lost child maintenance due to the death of the maintenance payer.

We have sent an enquiry to the Ljubljana District Court (that has jurisdiction over the Kamnik Local Court) regarding the continuation of enforcement proceedings in spite of the claims that the debt was fully settled. At the same time, we proposed that, given the debtor's situation and considering the principle of proportionality and weighing the effects that the continuation of enforcement proceedings would have on the debtors in spite of the debt settlement on the one hand and the effects of the decision to stay the enforcement (not) being issued on the other hand, all available legal options should be reviewed (given the prerequisite that the debt is fully settled and considering the current situation in the state due to the epidemic and the adopted (provisional) measures in this regard) to stay the enforcement permitted by the decision of 9 March 2020 or to suitably limit the effects of the enforcement order execution. In this regard, we also pointed out that, in its judgment Ref. No Ips 401/2006 of 30 November 2006, the Supreme Court has already warned that "... Even if this was no urgent matter and the court would decide on the matter during court holidays, this would not render the contested final decision illegal".

The President of the Ljubljana District Court explained that on 1 April 2020, the debtors' counsel submitted to the President of the Kamnik Local Court's Office an e-mail request to intervene in case No I 52/2020, because the continuation of enforcement proceedings would create an unbearable situation threatening the subsistence of debtors. He received a reply that until the decision to stay the enforcement has been issued, this matter does not qualify as an urgent matter in the sense of the order of the President of the Supreme Court of the Republic of Slovenia No Su 315/2020 of 30 March 2020 on special measures due to the occurrence of grounds referred to in paragraph one of Article 83a of the Courts Act (ZS) and grounds referred to in paragraph one of the Act on provisional measures for judicial, administrative and other public matters to cope with the spread of infectious disease SARS-CoV-2 (COVID-19) (ZZUSUDJZ).

Notwithstanding the above, the presiding judge reviewed the file and established that no records exist as to the full settlement of the claim. The party has also been advised to notify the creditor of the settlement if the claim was settled, so that the creditor may file a proposal to withdraw the request for enforcement. In spite of this advice, on 6 April 2020 the debtors' counsel again proposed to stay the enforcement without submitting any proof that the claim has actually been fully settled.

Considering the clarifications received from the court, no grounds existed for our further intervention, therefore the case was closed. We could not consider their initiative as justified, because the debtors failed to prove that their debt was fully settled and that they have notified the creditor thereof, so that the creditor would file a proposal to withdraw the request for enforcement. The enforcement case in question also did not qualify as an urgent matter in the sense of the aforementioned order of the Presidents of Supreme Court of the Republic of Slovenia of 30 March 2020. 15.3–48/2020


*Decree on declaration of contagious disease SARS-CoV-2 (COVID-19) in the territory of the Republic of Slovenia (Official Gazette of the Republic of Slovenia [Uradni list RS], No 19/20)

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