Communicated on 13 December 2018
FIRST SECTION
Application no. 61953/16
Marie BUCKOVÁ
against the Czech Republic
lodged on 20 October 2016
STATEMENT OF FACTS
The applicant, Ms Marie Bucková, is a Czech national, who was born in 1938 and lives in Prague. She is represented before the Court by Mr V. Vlk, a lawyer practising in Prague.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 6 October 2010 the Prague 2 District Court (obvodní soud) dismissed a claim brought by the applicant concerning a dispute about payment of a certain sum of money. Its decision was confirmed on appeal by the Prague Municipal Court (městský soud) on 26 May 2011.
According to the applicant, her representative had lodged an appeal on points of law (dovolání) with the Prague 2 District Court on 6 October 2011. It had been submitted via email and had included the applicant’s representative’s secure electronic signature.
On 22 April 2014 the applicant’s representative enquired about the status of the appeal on points of law that had been submitted. The District Court replied that there was no record of the applicant’s appeal in the court’s database. The applicant therefore resubmitted the appeal on 30 May 2014 and this time it was properly delivered.
On 4 July 2014 the District Court rejected the appeal on points of law as having been filed late. Upon a further appeal, on 22 August 2014, the Municipal Court quashed the decision of 4 July 2014 on the basis that the court should have dealt with the question whether the appeal on points of law had been submitted, not whether it had been registered in the court’s database.
In the subsequent procedure, on 26 January 2015 the District Court requested that the applicant prove that the appeal on points of law had been dispatched between 9 August and 10 October 2011. The applicant submitted an expert opinion which confirmed that on 6 October 2011, at 1.08 p.m., the applicant’s representative had sent an email with his secure electronic signature to the court’s email address (posta@). The email contained a pdf attachment (“Dovolání – definitivní 4.10.2011.pdf”). The applicant’s representative did not receive confirmation of receipt.
On 28 July 2015 the Supreme Court (Nejvyšší soud) rejected the appeal as being out of time. The court confirmed that the appeal had been sent, but noted that it could not conclude that it had also been delivered. Furthermore, it stated that the applicant’s representative should have been more diligent and when he had not received confirmation of the delivery of the email, he should have enquired about the submission.
The applicant lodged a constitutional appeal on 7 October 2015, which was dismissed by the Constitutional Court (Ústavní soud) on 10 May 2016, referring to the reasons given by the Supreme Court.
B. Relevant domestic law and practice
1. Code of Civil Procedure (Act no. 99/1963)
Under Article 42 § 1 of the Code of Civil Procedure, an application may be submitted in writing or orally. Written submissions can be made in hard copy or in electronic form via a public data network, telegraph or fax.
Article 42 § 3 provides, inter alia, that an application containing a petition submitted in telegraphic form must be finalised by filing a hard copy within three days of the telegraphic submission at the latest; if a written application is submitted by fax or in electronic form, it must be finalised within the same time-limit by filing an original hard copy or a hard copy of a further written submission containing the same text.
Under Article 42 § 5, if the application is submitted in electronic form with a secured electronic signature based on an authenticated certificate issued by an accredited certification service provider, the submission of the original document in accordance with paragraph 3 is not required.
2. The Constitutional Court’s judgment no. ÚS 137/15 of 18 March 2015
In judgment no. I. ÚS 137/15 of 18 March 2015, the Constitutional Court, mentioning its previous judgments, stated, inter alia:
“Undoubtedly, the question of the timely delivery of an application to a court may become relevant from the point of view of constitutional law, particularly with regard to the constitutionally guaranteed right of access to a court (as an aspect of the right to a fair trial within the meaning of Article 36 § 1 of the Charter).
...
In judgment no. IV. ÚS 2446/11 of 14 November 2011, the Constitutional Court stated that where a document is filed by electronic mail, for the assessment of its timeliness, the time of its delivery to the electronic registry office, specifically to its server, is decisive. Since, in the course of that case, the Ostrava Regional Court assessed the timeliness of the application on the basis of data noted by the court registry, which did not correspond to reality, the Constitutional Court concluded that the applicant’s rights guaranteed by Article 36 § 1 of the Charter had been violated. ...
In judgment no. II. ÚS 1911/11 of 29 March 2012 the Constitutional Court dealt with a situation where the applicants had electronically sent their complaints against a compulsory payment order in a form of bill, using an electronic form available on the Internet site . ... The Constitutional Court reproached the general courts on the basis that despite the obvious uncertainty about the scope and content of the application, they had not carried out a [proper] investigation ... [in order] to find out whether there had been any defects in the electronic transmission of data. ... The Constitutional Court ... also stated:
‘If the law allows a party to the proceedings to proceed through a public data network ..., it is not conceivable that possible malfunctions inside the delivery mechanism should be to the detriment of [that party]. The party to the proceedings, in accordance with the law - and rightly so -, will rely on the fact that the regime allowed by the law for performing a procedural step ensures the reliable consequences of the submission [of its application], and that its procedural responsibility will not be associated with anything other than what it is actually able to influence.’
...
The [applicant] ... drew attention to the above-mentioned opinion of the Constitutional Court, according to which it is not conceivable that errors in the delivery mechanism would be for the [applicant] to remedy. The Constitutional Court again refers to the circumstances of the cases in which it drew those conclusions. In judgment no. II. ÚS 1911/11 [of 29 March 2012], there was an error in the processing of a filing made directly through the portal , where it had clearly been documented when the filing was effected and what it contained. Moreover, the filed documentation was delivered to the court but in an incomplete form. On the contrary, in judgment no. II. ÚS 2560/13 ... the Constitutional Court highlighted that the materials filed before the end of the time-limit had been delivered to the court merely a couple of minutes after the expiry of that time-limit, which had also been considered to be a crucial point in judgment I. ÚS 829/14. It is therefore clear that the conclusions referred to by the applicant must be applied in the light of the specific circumstances of the case, correcting the interpretation of the general courts, according to which, for the assessment of the timeliness of email filings, it is the time of their delivery that is is decisive and not the time when they were sent. The specific circumstances of the [applicant]’s case as described above, in the opinion of the Constitutional Court, indicate that the failure to comply with the time-limit for bringing an action was caused by the [applicant]’s lack of care in exercising her own rights, and that allowing the application would, in view of the time elapsed, significantly interfere with the function and purpose of the institution of time-limits.”
COMPLAINT
The applicant complains under Article 6 § 1 of the Convention that her right of access to court was violated by the approach of the domestic courts handling her appeal on the points of law in the manner leading to its rejection as having been lodged out of time.
The applicant also complains, under Article 13 of the Convention, that due to the rejection of her appeal on points of law, she was denied an access to an effective domestic remedy in connection with the original proceedings concerning a dispute about payment of a certain sum of money.
QUESTIONS
Did the applicant have a fair hearing in the determination of her civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, has there been a violation of the applicant’s right of access to a court by the approach of the domestic courts handling her appeal on the points of law in the manner leading to its rejection as having been lodged out of time?
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