CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 18 octobre 2010

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sE5273FBD { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:center; font-size:10pt } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s8378218E { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s32C36DF3 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:center } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s6599CFFE { font-family:Arial; color:#252525 } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s507451D6 { width:4.53pt; display:inline-block } .s4A0CEAF8 { width:194.77pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } FIRST SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 35838/08 by Snježana DELIĆ against Croatia The European Court of Human Rights (First Section), sitting on 18   October   2010 as a Chamber composed of:   Christos Rozakis, President,   Nina Vajić,   Anatoly Kovler,   Khanlar Hajiyev,   Dean Spielmann,   Giorgio Malinverni,   George Nicolaou, judges, and Søren Nielsen, Section Registrar, Having regard to the above application lodged on 5 May 2008, 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 The applicant, Mrs Snježana Delić, is a Croatian national who was born in 1964 and lives in Split. She was represented before the Court by Mr   S.   Štimac, an advocate practising in Split. The Croatian Government (“the Government”) were represented by their Agent, Mrs   Š.   Stažnik. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was working as a music teacher in M. Primary School in Split between 1 February and 28 June 1996. She was dismissed following a decision taken by the school's principal on 14 June 1996. On 23 July 1996 the applicant brought a civil action in the Split Municipal Court ( Općinski sud u Splitu ) against her former employer challenging her dismissal and seeking reinstatement. At a hearing held on 16 May 1997 the applicant submitted a power of attorney which authorised Mr M.B. (“M.B.”), who was not an advocate but a teacher in the respondent school, to represent her in the proceedings. The power of attorney read as follows: “I, Snježana Delić, from Split, ..., authorise M.B. to represent me in the dispute with M. Primary School, Split. ” On 15 April 1999 the Municipal Court dismissed the applicant's action. Following an appeal by the applicant, on 14 April 2000 the Split County Court ( Županijski sud u Splitu ) quashed the first-instance judgment and remitted the case. In the resumed proceedings, on 19 April 2001 the Split Municipal Court again dismissed the applicant's action. Following an appeal by the applicant, on 19 April 2002 the Split County Court again quashed the first-instance judgment and remitted the case. In the resumed proceedings, on 27 June 2003 the Split Municipal Court dismissed the applicant's action for a third time. On 19 February 2004 the Split County Court dismissed an appeal by the applicant and upheld the first-instance judgment. Throughout the first and the second-instance proceedings, pursuant to section 138(1) of the Civil Procedure Act, the court decisions and other documents were served on the applicant's representative and not on her personally. All the decisions stated that the applicant was represented by her “representative, M.B.”. After having received the second-instance judgment of 19 February 2004, the applicant herself drafted and lodged an appeal on points of law ( revizija ) with the Supreme Court ( Vrhovni sud Republike Hrvatske ). On 13 June 2006 the Supreme Court dismissed the applicant's appeal on points of law. The Supreme Court's judgment stated that the applicant was represented by “M.B., an advocate from Split”. Under the Civil Procedure Act, all decisions in a case must be served through the first-instance court. So, on 8 November 2006, the Split Municipal Court served the Supreme Court's judgment on M.B. as the applicant's representative. On 12 June 2007 the applicant lodged a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ) against the Supreme Court's judgment. In her constitutional complaint the applicant wrote, inter alia : “Even though I had personally drafted my appeal on points of law and other submissions and had indicated my address, the Supreme Court sent the reply [that is, the judgment of 13 June 2006] to professor M.B. who did not serve the decision on me until a long time had passed because he did not want to make me sad. I consider that the Supreme Court was obliged to reply to the person who had sent [lodged] the appeal [on points of law]. ” On 3 July 2007, of its own motion, the Supreme Court issued a decision rectifying its judgment of 13 June 2006 so as to specify that the applicant had not been represented in the proceedings before that court. The decision on rectification in its relevant part read as follows: “Judgment no.   Revr-831/05-2 of 13 June 2006 of the Supreme Court of the Republic of Croatia in Zagreb is hereby rectified. In the fourth line of its header ... the words “ represented by M.B., an advocate from Split ” shall be deleted. The judgment remains unaltered in the remaining part. Reasons On 13 June 2006 judgment no. Revr-831/05-2 was rendered by this court, dismissing as unfounded an appeal of points of law by the plaintiff, Snježana Delić . By a clerical error in the header of the judgment it was stated that the plaintiff was represented by her representative, M.B., an advocate from Split. During the proceedings before the lower-instance courts, the plaintiff was represented by her representative, M.B., who is not an advocate. However, the plaintiff lodged the appeal on points of law herself. Therefore, it was necessary ... to rectify the judgment of this court in the fourth line of its header by omitting the reference to the plaintiff's representation. ” The decision on rectification, but not the judgment of 13 June 2006, was served on the applicant personally on 20 February 2008. On 19 March 2008 the Constitutional Court declared the applicant's constitutional complaint inadmissible as being lodged outside the statutory time-limit of thirty days, and on 8 April 2008 served its decision on the applicant personally. In so deciding, it held that the statutory time-limit for lodging a constitutional complaint had started running on the date that the Supreme Court's judgment of 13 June 2006 had been served on M.B. as the applicant's representative in the civil proceedings which had ended with that judgment. The relevant part of the Constitutional Court's decision read as follows: “The complainant received the Supreme Court's judgment of 13 June 2006 through her representative M.B., an advocate from Split, on 8   November 2006 ... The constitutional complaint was lodged on 12 June 2007, that is, after the expiry of the time-limit of thirty days. The time-limit for lodging a constitutional complaint in the present [case] expired on Friday, 8 December 2006.” On 28 April 2008 the applicant sent a letter to the Constitutional Court asking it to reconsider her case. She enclosed the Supreme Court's decision on rectification of 3 July 2007 with her letter. The applicant wrote, inter alia : “In my case, the Supreme Court made a serious error by serving the decision [that is, the judgment of 13 June 2006] to M.B. whom they call an advocate from Split. The role of M.B. was [as follows]: When I instituted the proceedings against M. Primary School in Split, it was my first encounter with a judicial process. As an unemployed girl I could not even think of hiring an advocate. M.B. had been an experienced teacher for many years, who described my case as unheard of in school history, thus persuading me that the case would end in my favour. He attended most of the hearings, and at one of the hearings, I signed the power of attorney to him. I wrote all submissions myself and indicated my name and address. I also did so with [my submissions to] the Supreme Court. Despite that, the Supreme Court served the decision [that is, its judgment of 13 June 2006] to M.B. That gentleman kept secret from me the fact that he had received the decision. Why, I do not know. As soon as I learned of the decision [that is, the Supreme Court's judgment of 13 June 2006] I addressed you [that is, lodged a constitutional complaint] as my last hope for justice. The Supreme Court admits that it sent the decision [that is, the Supreme Court's judgment of 13 June 2006] to the wrong address by [its] rectification of 3 July 2007. I therefore enclose a copy thereof [that is, a copy of the decision on rectification of 3   July 2007] and am asking you to consider once again the injustice that was done to me.” It would appear that, on 20 May 2008, the Constitutional Court requested the case file from the Split Municipal Court, which sent it on 9   March 2009. However, the Constitutional Court never replied to the applicant's letter. The Government submitted that, after receiving the applicant's letter, the Constitutional Court had consulted the case file and established that the service of the Supreme Court's judgment of 13 June 2006 to M.B. constituted the proper service because the applicant had never revoked the power of attorney which she had given to him. Moreover, all decisions adopted during the civil proceedings had been served on him as her representative. B.     Relevant domestic law and practice 1.     Relevant legislation (a)     The Constitutional Court Act The relevant part of the 1999 Constitutional Act on the Constitutional Court of the Republic of Croatia ( Ustavni zakon o Ustavnom sudu Republike Hrvatske , Official Gazette of the Republic of Croatia no.   99/1999 of 29 September 1999 – “the Constitutional Court Act”), as amended by the 2002 Amendments ( Ustavni zakon o izmjenama i dopunama Ustavnog zakona o Ustavnom sudu Republike Hrvatske , Official Gazette of the Republic of Croatia no. 29/2002 of 22 March 2002), which entered into force on 15 March 2002, reads as follows: Section 34 “Unless provided otherwise by this Constitutional Act, in the proceedings before it, the Constitutional Court shall apply mutatis mutandis the provisions of the relevant procedural laws of the Republic of Croatia as ancillary rules.” Section 62 “1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the decision of a state authority, local or regional self-government, or a legal person invested with public authority, on his or her rights or obligations, or as regards suspicion or accusation of a criminal offence, has violated his or her human rights or fundamental freedoms, or right to local or regional self-government, guaranteed by the Constitution (“constitutional right”)... 2. If another legal remedy is available in respect of the violation of the constitutional rights [complained of], the constitutional complaint may be lodged only after this remedy has been exhausted. 3. In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law [ revizija ] are available, remedies shall be considered exhausted only after the decision on these legal remedies has been given.” Section 64 “A constitutional complaint may be lodged within the time-limit of thirty days which begins on the day that the [contested] decision is received.” Section 72 “The Constitutional Court shall ... declare inadmissible a [belated] constitutional complaint ....”   (b)     The Civil Procedure Act The relevant part of the Civil Procedure Act ( Zakon o parničnom postupku , Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980, 69/1982, 58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991, and Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 58/1993, 112/1999, 88/2001, 117/2003, 88/2005, 2/2007, 84/2008 and 123/2008) as in force at the material time provided as follows: C h a p t e r f i v e REPRESENTATIVES Section 96 “If in the power of attorney the party did not specify the powers of the representative, the representative who is not an advocate, may, on the basis of such a power of attorney, undertake all actions in the proceedings, but shall always need an explicit authorisation to ... lodge extraordinary legal remedies [that is, an appeal on points of law or a petition for reopening of the proceedings].” C h a p t e r e l e v e n SERVICE OF DOCUMENTS AND CONSULTATION OF CASE FILES Method of service Section 138(1) “When a party has ... a representative, court documents shall be served on the representative, unless this Act provides otherwise.” C h a p t e r t w e n t y t h r e e JUDGMENT Res judicata Section 334(2) “A judgment shall not take effect on the parties until the day it is served on them.” (b)     The Enforcement Act The relevant part of the Enforcement Act ( Ovršni zakon , Official Gazette of the Republic of Croatia, nos. 57/1996, 29/1999, 42/2000, 173/2003, 194/2003, 151/2004, 88/2005, 121/2005 and 6720/08), as in force at the material time, provided as follows: Certificate of enforceability Section 33(2) and (3) “(2)     A certificate of enforceability shall be issued by the court or [another] authority which adjudicated the claim in the first instance (3)     A certificate of enforceability for the issuance of which the statutory conditions were not met, shall be cancelled by a decision of the same court or [another] authority, at the request [of a party] or sua sponte .” 2.     The relevant practice Under the Supreme Court's case-law (see, for example, decision no.   Rev 1458/1997-2 of 30 September 1997 adopted in the context of civil proceedings, decision no. Uzz 2/1998-2 of 9 June 2000 adopted in the context of administrative proceedings, and decision no. I Kž 905/1995-3 of 13 March 1996 and decision no. IV Kž 45/1993-5 of 29 July 1993 adopted in the context of criminal proceedings), if a party was not properly served with a decision, the time-limit for lodging remedies against it does not start to run and the decision cannot acquire the force of res judicata in respect of that party. In such cases, the date on which the party to whom the decision had not been properly served learned of the existence of the decision (decision no. Rev 969/01-2 of 23   May 2001) is irrelevant. If such a decision nevertheless bears a stamp attesting that it acquired the force of res judicata , that is, the so-called certificate of finality ( potvrda o pravomoćnosti , klauzula pravomoćnosti ), a party to whom the decision had not been properly served may request the court which adjudicated the case in the first instance to cancel that certificate and serve the decision on that party in accordance with the law (see, for example, the Supreme Court's judgment no. Rev 673/05-2 of 8 February 2006). Such a request may be lodged at any time (see, for example, judgment no.   Gž   1155/96 of Rijeka County Court of 30 December 1996). A request to restore the proceedings to their previous position ( restiutio in integrum ob terminem elapsum , povrat u prijašnje stanje ) may not be used in such a situation because it presupposes that a party missed a time-limit for undertaking a procedural action, whereas in a situation where a decision had never been properly served on a party, the time-limit for lodging a remedy against that decision had never started to run and thus could not have been missed (see the above cited Supreme Court's decision no. I Kž 905/1995-3 of 13 March 1996). The rules for cancelling the certificate of enforceability provided in legislation governing enforcement proceedings shall apply mutatis mutandis to cancelling the certificate of finality (see, for example, the Supreme Court's decisions nos. Gzz-6/1990-2 of 27 June 1990, Gž   19/1994-2 of 4 October 1994, Gž 14/1994-2 of 13 October 1994, Gr1   582/05-2 of 20 December 2005 and Gž 9/07-2 of 11 October 2007). COMPLAINTS 1.     The applicant complained under Article 6 § 1 of the Convention about the outcome of the above-mentioned civil proceedings concerning her dismissal and that they had been unfair. 2.     She also complained that she had lacked access to the Constitutional Court, which had wrongly found her constitutional complaint to have been lodged out of time. THE LAW A.     Alleged violation of Article 6 § 1 of the Convention on account of the lack of access to a court The applicant complained that, by declaring inadmissible her constitutional complaint as lodged out of time, despite the fact that the decision contested by that complaint had never been served on her, the Constitutional Court had violated her right of access to a court. She relied on Article   6 § 1 of the Convention, the relevant part of which reads as follows:   “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” The Government contested that argument. 1.     The arguments of the parties (a)     The Government The Government stressed first that, under section 138(1) of the Civil Procedure Act, court documents in civil proceedings should be served on a party's representative if that party to the proceedings is being represented. The applicability of this provision did not depend on whether the representative or the party drafted the relevant submission to, or otherwise communicated with, the court. In the present case, on 16 May 1997 the applicant had given the power of attorney to M.B., authorising him to represent her in the above-described civil proceedings concerning her dismissal. Given that there was no indication that the applicant had ever revoked that power of attorney nor informed the domestic courts thereof, the Split Municipal Court continued serving their decisions on M.B. as her representative, in accordance with section 138(1) of the Civil Procedure Act. The Government further noted that every relationship between a party and his or her representative was of a private law nature and based on confidentiality and good faith. In the present case, M.B. had failed to inform the applicant of the Supreme Court's judgment of 13 June 2006 in time, that is, he had not acted in her best interest. However, given the contractual nature of their relationship, that was strictly a matter between the applicant and her representative. Unless the exercise of powers granted to a representative constituted the criminal offence of unlicensed legal practice, the State had no authority to intervene in such a relationship. Relying on the Court's case-law (see Tripodi v. Italy , 22 February 1994, Series A no.   281 ‑ B; Milone v. Italy (dec.), no. 37477/97, 23 March 1999; and Ozgur-Karaduman v. Germany (dec.), no. 4769/02, 26 June 2007), the Government argued that the State could not be held responsible for the misconduct of representatives in civil proceedings. In this connection the Government further argued that the applicant had knowingly given the power of attorney to a person who was not an advocate, and thus had accepted the consequences which such a choice might entail. In addition, if the applicant had been dissatisfied with her representative's work, she could have revoked the power of attorney and hired another representative. As regards the rectification of the Supreme Court's judgment, the Government noted that it merely deleted the indication that the applicant had been represented in the proceedings before the Supreme Court. This however had not changed the fact that the applicant had had a representative in the civil proceedings at issue and that therefore section   138(1) of the Civil Procedure Act had continued to apply. The Constitutional Court's decision to declare inadmissible the applicant's constitutional complaint had therefore been in accordance with the law. The Government further argued that, even assuming that the Supreme Court's judgment of 13 June 2006 had not been properly served on the applicant, she had never told the Constitutional Court (nor the European Court of Human Rights) the date on which she had actually learned about that judgment. Had she done so, the Constitutional Court would have taken that date as the date on which the statutory time-limit of thirty days for lodging a constitutional complaint had started to run. In the absence of that information, the Constitutional Court had had no alternative but to take into account the date on which the applicant's representative had received the contested judgment of the Supreme Court. In the light of the foregoing, the Government argued that the applicant's right of access to a court had not been breached in the present case. (b)     The applicant The applicant noted first that M.B., who had represented her in the civil proceedings at issue, was a retired history teacher and not an advocate. She then referred to section 96 of the Civil Procedure Act, according to which a representative who was not an advocate always needed explicit authority to lodge an extraordinary legal remedy such as an appeal on points of law. Given that she had never given specific authorisation to lodge an appeal on points of law to M.B. but had done it herself, it was not possible to consider that M.B. was her representative in the proceedings before the Supreme Court. Accordingly, because she had had no representative in the proceedings following her appeal on points of law, the Supreme Court's judgment of 13   June 2006 should have been served personally on her. However, even though on 3 July 2007 the Supreme Court had rectified that judgment after realising that the applicant had not been represented in the proceedings before that court, it served her only with the decision on the rectification but not with the original judgment. The applicant stressed that the judgment of 13   June 2006 had actually never been served on her. The applicant further argued that, as soon as she had come into possession of the Supreme Court's judgment of 13   June 2006, she had lodged her constitutional complaint. In the applicant's view, to declare her constitutional complaint inadmissible as lodged out of time in those circumstances, as the Constitutional Court had done, amounted to a breach of her right of access to a court. 2.     The Court's assessment The Court notes that the applicant in substance complained that she had not had access to the Constitutional Court because her constitutional complaint against the Supreme Court's judgment of 13 June 2006 had never been decided on the merits. The Court further observes that on 3 July 2007 the Supreme Court rectified its judgment of 13   June 2006 so as to specify that the applicant had not been represented before that court. It also notes that the applicant had been served only with the decision on rectification but not with the rectified judgment. In this connection the Court notes that under Croatian law a judgment has no effect on the parties until it is properly served on them. Consequently, until the proper service of a judgment, the time-limits for lodging remedies to contest it do not start to run. What is more, a party on whom a judgment was not served in accordance with the law may ask the first-instance court to serve the judgment properly and, where applicable, cancel the certificate attesting that the judgment acquired the force of res judicata . It follows that the Croatian legal system provides adequate safeguards for persons who, like the applicant in the present case, through no fault of their own, were prevented from complying with statutory time-limits (see, mutatis mutandis , Batt v. Austria , no. 16487/90, Commission decision of 8 January 1992; Hennings v. Germany , 16   December 1992, Series A no. 251 ‑ A). That being so, the Court considers that, after she learned of the Supreme Court's judgment of 13   June 2006, the applicant could have lodged a request to the Split Municipal Court and asked to be personally served with the Supreme Court's judgment. Once that judgment had been properly served on her, the time-limit for lodging a constitutional complaint against it would have started to run and the applicant would have been able to resubmit her constitutional complaint. The Court considers that the State cannot be held responsible for the applicant's failure to lodge such a request, which she can still do because it may be lodged at any time. In these circumstances, it cannot be said that the applicant was denied access to the Constitutional Court (see, for example and mutatis mutandis , Hennings v. Germany , cited above, §§ 26-27). It follows that this complaint is inadmissible under Article   35   § 3 as manifestly ill-founded and must be rejected pursuant to Article   35   §   4 of the Convention. B.     Alleged violation of Article 6 § 1 of the Convention on account of the unfairness of the proceedings The applicant further complained about the outcome of the above-mentioned civil proceedings, also alleging that they had been unfair. The Court refers to its above findings concerning the applicant's access-to-a court complaint, according to which the applicant still has a possibility to lodge a constitutional complaint against the Supreme Court judgment of 13   June 2006, and have it examined by the Constitutional Court. In these circumstances, the Court considers that it would be premature to take a position on the substance of this complaint. It follows that this complaint is inadmissible as premature and must be rejected pursuant to Article   35   § 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   Søren Nielsen   Christos Rozakis   Registrar   President