U-I-171/16, Up-793/16

Reference no.:
U-I-171/16, Up-793/16
Objavljeno:
Official Gazette RS, No. 53/2019 and OdlUS XXIV, 13 | 11.07.2019
ECLI:
ECLI:SI:USRS:2019:U.I.171.16
Abstract:
[The text published below is a summary prepared for the annual report.]
 
Enforcement by the Seizure of One’s Home and the Aspect of Human Dignity
 
By Decision No. U-I-171/16, Up-793/16, dated 11 July 2019 (Official Gazette RS, No. 53/19), the Constitutional Court reviewed, on the basis of a petition (filed together with a constitutional complaint), a part of the second paragraph of Article 71 of the Enforcement and Securing of Claims Act (ESCA), which allows for the postponement of enforcement due to particularly justified reasons upon the debtor’s proposal for a maximum of three months and only once. The Constitutional Court limited its assessment of the challenged part of the mentioned provision to reviewing the enforcement by eviction and the seizure of residential real property that is the debtor’s home.

The purpose of the postponement of enforcement referred to in the second paragraph of Article 71 of the ESCA is to ensure the protection of the debtor when the execution of approved enforcement by eviction and the seizure of residential real property that is the debtor’s home would entail for the debtor, due to particularly justified reasons, an inadmissible hardship that would be inconsistent with the attained values of society and might be contrary to the obligation to observe human dignity and would deny individuals any manner of care. However, the postponement of granting a creditor’s claim that follows from a final judicial decision can only be allowed exceptionally. By the second paragraph of Article 71 of the ESCA, the legislature allowed the courts to balance the positions of the creditor and the debtor. It was left to the courts, taking into account all the circumstances of the concrete case, to seek a fair balance between the right of the creditor to judicial protection and the right to physical integrity of the debtor. The assessment of the court regarding the postponement of enforcement was to a significant degree rendered impossible due to statutory regulations, namely: (1) the period for which enforcement can be postponed (a maximum of three months) and (2) postponement is possible only once. In this manner, the law in reality prevented the court from carrying out an assessment by taking into consideration all the circumstances of the case.
 
The Constitutional Court assessed the challenged part of the provision as if it concerns the formation of the manner of exercise of rights in collision in a judicial procedure. When assessing a statutory regulation that in conformity with the second paragraph of Article 15 of the Constitution only regulates the manner of implementation of human rights, the Constitutional Court is reserved. In this framework, it only assesses whether the challenged regulation is reasonable. In this respect, the reasonableness of the grounds must be understood as the connection between the regulation and the objective, i.e. as the requirement that there exists an objective connection between the regulation at issue and the subject matter. The Constitutional Court assessed that the challenged part of the provision undermines the realisation of the objective of the postponement of enforcement – i.e. to enable the protection of the debtor’s position in those exceptional cases where the invasiveness of eviction and the seizure of real property would be contrary to the attained values of society and the obligation to observe human dignity and would deny individuals any manner of care. Thus, the challenged part of the second paragraph of Article 71 of the ESCA was contrary to the purpose of the postponement of enforcement due to particularly justified reasons. Therefore, the Constitutional Court held that there is no objective connection between the regulation at issue and the subject matter and that, as such, the regulation is not reasonable. It held that in the part in which the second paragraph of Article 71 of the ESCA allows the postponement of enforcement for a maximum of three months and only once, insofar as it refers to enforcement by eviction and the seizure of residential real property that is the debtor’s home, that provision is inconsistent with the right to physical integrity determined by Article 35 of the Constitution.
 
In the constitutional complaint, the orders issued in the enforcement procedure were challenged in the part in which the courts dismissed the motion for the postponement of enforcement for more than three months. Since the two challenged orders were based on the second paragraph of Article 71 of the ESCA, which was partially abrogated by the Constitutional Court, the challenged judicial decisions violated the complainant’s right determined by Article 35 of the Constitution.
Note:
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Document in PDF:
Type of procedure:
review of constitutionality and legality of regulations and other general acts constitutional complaint
Type of act:
statute individual act
Applicant:
Marjetka Podgoršek, Ljubljana
Date of application:
21.09.2016
Date of decision:
11.07.2019
Type of decision adopted:
decision
Outcome of proceedings:
annulment or annulment ab initio annulment or annulment ab initio
Document:
AN03985