According to the Human Rights Ombudsman of the Republic of Slovenia, the fact that different interpretations of the legal bases between the authorities in the Republic of Slovenia hinder or prevent the quick and efficient recovery of child support from abroad constitutes an infringement of the child's right from Article 3 of the Convention on the Rights of the Child. The Ministry of Justice agreed with the Ombudsman's position and the problem was properly resolved.

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The Human Rights Ombudsman of the Republic of Slovenia (Ombudsman) received a complaint for consideration, which drew attention to the difficulties in collecting alimony for supporting a minor child from abroad, namely on the basis of Council Regulation (EC) no. 4/2009 of 18 December 2008 on the jurisdiction of the law applicable to the recognition and enforcement of court decisions and cooperation in maintenance matters (Regulation).

The complainant had turned to the Public Scholarship, Development, Disability and Maintenance Fund of the Republic of Slovenia (the Fund) for help. Paragraph 1 of Article 41 of the Regulation stipulates, among other things, that a court decision issued in a Member State and enforceable in the Member State of enforcement shall be enforced under the same conditions as a court decision issued in this Member State of enforcement. Pursuant to Article 48 of the Regulation, the same requirements also apply to court settlements and other public documents. The enforceability of the court decision and court settlement is demonstrated in the requested country by an official certificate of the public institution or court that issued the court decision, court settlement, or public document equated to a court decision. The enforceability clause of the issued court decision is equated with the enforceability certificate. Therefore, when reviewing the documentation for the initiation of maintenance recovery proceedings abroad, the Fund is obliged to check whether the court decision or court settlement is equipped with an enforceability clause, and if there is no such clause in the court decision or court settlement, it is also obliged to ask the court for confirmation of enforceability. The Fund also pointed out that Article 42a of the Enforcement and Insurance Act (ZIZ) expressly requires courts, notaries, and other bodies that decide on a claim to issue a certificate of enforceability of a decision, settlement or public document, at the request of the client, if it concerns the enforcement of claims abroad/another EU Member State, whereby the Regulation is also specifically and explicitly stated.

In the process, the Fund tried to obtain a certificate of the enforceability of the court settlement from the competent district court.

The court responded to the Fund with a detailed explanation that, given the nature of the court settlement, it does not issue certificates of finality and enforceability, as it is not a court decision. The court settlement becomes enforceable when the claim falls due, and this can be proven by the record of the court settlement, in which the time limit for obligation is specified. The court also states that it does not follow from the Regulation that a certificate of legal validity and enforceability would be an integral part of the documentation for the initiation of the procedure for the recovery of alimony from abroad, as this court determines and confirms by issuing the form "Appendix I, Extract of the court decision/court settlement on the maintenance case, which is not subject to the recognition procedure or the procedure to declare the enforceability of the court decision" (Appendix I), which is issued if the court decision or the court settlement enforceable in the Member State of origin. The court issued the above-mentioned form in the case in question and does so on a regular basis. It further explained to the Fund its assessment that the court's clause on the enforceability of the court settlement is not necessary for the recovery of alimony from abroad, and also asked the Fund to inform it of the specific requirements of the foreign country, if it explicitly requests the said clause in the court settlement. The Fund did not respond to the latter.

The Fund explained to the Ombudsman that all other courts in the Republic of Slovenia issue certificates of enforceability in comparable cases.

According to the Ombudsman, it was indisputable in the case in question that the court settlement was concluded and that it is also enforceable. It was also indisputable that there was a delay in the specific procedure for the recovery of alimony, as this means that the minor child is without the sufficient resources he needs to support himself. The Ombudsman did not judge what the cause was and who was responsible for the problem, but it was undeniably necessary that the problem be solved immediately. The Ombudsman assessed that the case in question was an unnecessary complication that affects the child's right to support, so he suggested to all those involved, as well as the Ministry of Justice (MP), to resolve this problem immediately and ensure that similar problems do not recur in the future.

In its response, the MP provided a non-binding explanation regarding some of the provisions of the Regulation, namely that Article 17 of the Regulation stipulates that a court decision issued in a Member State bound by the 2007 Hague Protocol is also recognised in another Member State, without the need to initiate a special procedure and without the possibility of objecting to its recognition. A court decision issued in a Member State that is bound by the 2007 Hague Protocol and is also enforceable in that Member State is also enforceable in another Member State without having to be declared enforceable. Recital 13 of the Regulation stipulates that, for the reasons stated, this Regulation should also ensure the recognition and enforcement of court settlements and public documents, without prejudice to the right of any of the parties to such court settlement or such document to challenge such instruments before the court of the Member State of origin. A court settlement is defined in point 2 of Paragraph 1 of Article 2 of the Regulation as a settlement in alimony matters, which was either approved by the court or was concluded during court proceedings. Chapter VI refers to the application of the Regulation also to court settlements and public documents. Regarding the application of the Regulation to court settlements and public documents, Article 48 of the Regulation stipulates that court settlements and public documents that are enforceable in the Member State of origin are, in accordance with Chapter IV, recognised and enforceable in another Member State as court decisions – Article 48 therefore specifies: (1) the condition of enforceability of the settlement under the law of the country of origin; (2) that the provisions of this regulation also apply to court settlements and public documents, if necessary, and (3) that the competent authority of the Member State of origin issues, at the request of each interested party, an extract of the court settlement or public document on the form in Annexes I and II or III and IV. Paragraph 1 of Article 20 of the Regulation further specifies the documents that the applicant must submit to the authorities responsible for enforcement, namely: (1) a copy of the court decision that meets the conditions necessary to establish its authenticity; (2) an extract of the court decision issued by the competent authority of the Member State of origin on the form Annex I; (3) if necessary, a document on the status of late payments with an indication of the date of calculation; (4) if necessary, transliteration or translation of the content of the form from the item into the official language of the Member State of enforcement.

Regarding the form from Annex I, the MP adds that the court confirms enforceability by issuing the Annex I form. The annex form itself also specifically states that it should be issued only if the court decision or court settlement is enforceable in the Member State of origin. In the Republic of Slovenia, the effect of a court settlement (lat. res transacta) is the same as the effect of a final judgment (lat. res iudicata). A court settlement is therefore equal to a final judgment. It ends the procedure on that part of the disputed object, which was concluded in the settlement. It becomes legally binding when the parties sign it, or when they sign the court record on which they declare it (Paragraph 2 of Article 307 and all of Article 308 of the ZPP). The concluded court settlement has both the effect of finality and the effect of enforceability. According to national law, the condition for the enforceability of a court settlement is the due date of the claim, and not the finality of the court settlement, as no appeal is possible against it.

In the opinion of the MP, the certificate of enforceability issued in the Republic of Slovenia is therefore not a condition for allowing enforcement in the case where the enforcement title is a court settlement. In accordance with Article 20 of the ZIZ, the enforceability and thus the due date of a court settlement are not proven by a certificate of enforceability, but by a record of the settlement, a public document, or a legally certified document, if the due date cannot be proven in this way, by a final decision issued in a legal proceeding. Regardless of this, the MP believes that other rules or European acts in the field of cross-border enforcement apply in connection with the confirmation of the enforceability of court settlements executed in another EU Member State.

Regarding the ZIZ, the MP explains that – in Paragraph 2 of Article 42a, as a general provision that regulates the authority to issue a certificate of enforceability based on several EU regulations and in one place regulates the authority to issue certificates for both court decisions and public documents as well as for court settlements – it specifies that the certificate of enforceability based on the Maintenance Regulation and other EU regulations is issued at the request of the client either by the court or the authority that decided on the claim at first instance, or the notary who drew up the public document. Article 42a of the ZIZ therefore determines the jurisdiction of the court to, at the request of a party, issue a certificate of the enforceability of a court settlement on the basis of (or as a result of) the implementation of the Regulation, even though the court does not confirm the enforceability of a court settlement according to national regulations. Article 42.a of the ZIZ otherwise does not specify the method of confirming enforceability. The court can also confirm enforceability by filling in the form from Annex I of the Regulation, since without filling in this form we cannot consider that the court's work has been completed and the enforceability of the court settlement has been confirmed. The key from the client's point of view is that, in accordance with the Regulation, the court settlement is also enforceable in another Member State. The MP proposed that – if the Fund, as part of its role as a central authority, received information from foreign authorities from the Member State in which the court settlement is being executed, that the certificate of enforceability is, despite everything mentioned, a condition for enforcement – this information should be shared with the courts, so that the procedures could be carried out in the shortest possible time.

The Ombudsman accepted the MP's explanations as adequate, as well as the MP's proposal from the previous paragraph, which follows the need for the fastest possible provision of maintenance for the child, even if this is achieved by carrying out activities that are not otherwise required by the regulations, since only such behaviour is consistent with the provision of Article 3 of the Convention on the Rights of the Child, which commands the child's benefit as a guide in all procedures in which decisions are made about his rights.

In this particular case, after the Ombudsman's intervention, the case was properly resolved and the process of recovering alimony from abroad led to the fulfilment of the alimony obligation. 21.2-1/2024