FIRST SECTION
DECISION
Application no. 31779/08
Nada ČOKO
against Croatia
The European Court of Human Rights (First Section), sitting on 17 March 2015 as a Chamber composed of:
Elisabeth Steiner, President,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Paulo Pinto de Albuquerque,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković, judges,
and André Wampach, Deputy Section Registrar,
Having regard to the above application lodged on 16 June 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
1. The applicant, Ms Nada Čoko, is a Croatian national, who was born in 1969 and lives in Šibenik. She was represented before the Court by Mr Ž. Čogelja and Ms D. Čogelja, advocates practising in Šibenik.
2. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 4 June 1997 the applicant was dismissed from her employment at company B.
1. The principal proceedings
5. On 8 July 1997 she brought a civil action in the Šibenik Municipal Court (Općinski sud u Šibeniku), seeking to have the company’s decision to dismiss her reversed. Company B. had two representatives in the proceedings, Ms B. and Mr K.
6. By a judgment of 17 September 1997 (hereafter “the principal judgment”) the Šibenik Municipal Court ruled for the applicant and ordered her reinstatement.
7. By a judgment of 15 June 1998 the Šibenik County Court (Županijski sud u Šibeniku) dismissed an appeal by the defendant company and upheld the principal judgment. The applicant’s representative was served with a copy of the second-instance judgment of the Šibenik County Court on 5 February 1999. Mr K. was served with a copy of it on 17 March 1999 and Ms B. on 25 February 2000.
8. On 7 March 2000 the Šibenik Municipal Court stamped the applicant’s copy of the principal judgment with certificates of finality and enforceability. Those certificates indicated that the judgment had become (a) final on 15 June 1998 and (b) enforceable on 7 March 2000.
9. On 6 March 2002 the defendant company applied to the Šibenik Municipal Court seeking to have the certificate of the enforceability of the principal judgment set aside. In so doing it argued that the certificate wrongly indicated that the judgment in question had become enforceable on 7 March 2000 whereas it had actually become enforceable earlier. That error was due to the fact that the Municipal Court, when determining the date of enforceability, had mistakenly taken into account the date on which judgment had been served on Ms B. instead of the date on which it had been served on Mr K.
10. On 29 May 2006 the Šibenik Municipal Court set aside the certificate of enforceability of 7 March 2000. The Municipal Court held that, as the principal judgment had been served on Mr K. on 17 March 1999, it had therefore already become enforceable on 26 March 1999, after the eight-day grace period for voluntary compliance had expired (see paragraphs 23-25 below). The relevant part of the decision reads as follows:
“The certificate of enforceability of the [principal] judgment of the Šibenik Municipal Court... is hereby set aside.
...
The judgment... became final on 15 June 1998, the date of the judgment of the Šibenik County Court..., by which the defendant’s appeal was dismissed.
The judgment of the Šibenik County Court... was served on one of two representatives of the defendant on 17 March 1999, meaning that the eight-day time-limit for voluntary compliance with the final judgment began on 18 March 1999, after the expiry of which the judgment became enforceable.
The fact that the second-instance judgment was served on the second defendant’s representative on 25 February 2000 has no significance for the enforceability of [that] judgment...
Since this court has linked the issuance of the certificate of enforceability to the date of service on the defendant’s second representative... without bearing in mind that the defendant was duly served through the first representative... the certificate of enforceability is hereby set aside.”
11. On 26 July 2006 the applicant appealed against that decision, arguing that since 5 February 1999, the date on which the principal judgment had been served on her, she had made daily enquires about the enforceability of the judgment with the Municipal Court’s Registry, but had only been able to obtain a certificate of enforceability on 7 March 2000. The applicant also argued that this date should not be changed, even if only the date on which the principal judgment was served on the first of the defendant’s two representatives was taken into account, as the time-limit had been properly calculated from the date on which the acknowledgement of acceptance of service had been returned to the Municipal Court.
12. On 16 April 2007 the Šibenik County Court dismissed the applicant’s appeal and upheld the first-instance decision. It held that the principal judgment had indeed been served on Mr K. on 17 March 1999 and had become enforceable eight days later.
13. On 18 July 2007 the applicant lodged a constitutional complaint arguing that the decisions of the Šibenik Municipal Court and the Šibenik County Court had deprived her of the ability to have the final judgment entitling her to reinstatement enforced, as they had retroactively created a situation in which her application for enforcement had been lodged outside of the thirty-day statutory time-limit provided in section 238 of the Enforcement Act (see paragraph 28 below). The applicant complained about the significant gap between the date when the defendant’s first representative Mr K. had signed the acknowledgement of acceptance of service and the date when he had returned it to the Šibenik Municipal Court.
14. On 29 November 2007 the Constitutional Court (Ustavni sud Republike Hrvatske) declared the applicant’s constitutional complaint inadmissible because the contested decisions were not susceptible to constitutional review as they could not be regarded as decisions referred to in section 62(1) of the Constitutional Court Act (see paragraph 21 below) against which a constitutional complaint could be lodged.
2. Enforcement proceedings
15. Meanwhile, on 7 March 2000 the applicant applied for enforcement of the principal judgment to the Šibenik Municipal Court. She also sought payment of salary arrears in the period between 1 June 1997 and 11 February 1998.
16. By a decision of 23 May 2000 the Šibenik Municipal Court issued a writ of execution (rješenje o ovrsi) ordering the defendant company to reinstate the applicant within eight days. It however dismissed her claim for salary arrears.
17. Both the applicant and the defendant company appealed against that decision. In its appeal, the defendant company claimed that the applicant had failed to comply with the thirty-day statutory time-limit for seeking the enforcement set forth in section 238 of the Enforcement Act (see paragraph 28 below) because she had been served with the second-instance judgment of 15 June 1998 already on 5 February 1999 but had applied for enforcement only on 7 March 2000 (see paragraphs 7-8 and 15 above).
18. On 22 October 2001 the Šibenik County Court dismissed the defendant company’s appeal. It found that the applicant had applied for the enforcement of the principal judgment on the same day that judgment had become enforceable and thus complied with the statutory time-limit provided in section 238 of the Enforcement Act (see paragraphs 8 and 15 above and paragraph 28 below). At the same time, the court allowed the applicant’s appeal and quashed the part of the first-instance decision dismissing the applicant’s claim for salary arrears and remitted the case.
19. In the resumed enforcement proceedings, the Šibenik Municipal Court held hearings on 6 March and 3 April 2002. These hearings were adjourned after the defendant company asked the court to wait for a decision on its application to have the certificate of enforceability of the principal judgment set aside (see paragraph 9 above). Another hearing was held on 7 May 2002. It was adjourned due to the possibility of the parties reaching an out-of-court settlement. At a hearing held on 3 April 2003 the court decided to forward the entire case file to its President with a view to deciding on the defendant company’s application to set aside the certificate of enforceability.
20. By a decision of 22 August 2007 the Šibenik Municipal Court, relying on section 67(1) of the Enforcement Act (see paragraph 27 below) discontinued the enforcement proceedings because a certificate of enforceability had in the meantime been set aside (see paragraphs 10 and 12 above). The applicant did not appeal against that decision.
B. Relevant domestic law
1. The Constitutional Court Act
21. 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 no. 99/99 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 no. 29/2002 of 22 March 2002), which entered into force on 15 March 2002, reads as follows:
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 government, or a legal person invested with public authority, on his or her rights or obligations, or as regards a suspicion or accusation of a criminal offence, has violated his or her human rights or fundamental freedoms, or the right to local or regional 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] is available, remedies shall be considered exhausted only after the decision on these legal remedies has been given.”
2. Civil Procedure Act
22. The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia no. 4/77 with subsequent amendments, and Official Gazette of the Republic of Croatia no. 53/1991 with subsequent amendments), which has been in force since 1 July 1977, provides as follows:
Section 138
“If a party has several legal representatives or agents, it shall be sufficient to serve a decision on one of them.”
Section 333(1)
“A judgment which can no longer be contested by an appeal shall become final where it decides on the plaintiff’s claim or on a counter-claim.”
Section 334(2)
“A judgment shall not take effect in respect of the parties until the day it is served on them.”
23. Section 328 provides for a time-limit within which a judgment debtor can voluntarily comply with (execute) the judgment (paricijski rok – “the grace period”). The lodging of an appeal suspends the running of the grace period. The provision reads as follows:
“When a judgment debtor has been ordered to do something by the judgment, the court shall set a time-limit for performance.
Unless special legislation provides otherwise, the time-limit for performance shall be fifteen days. However, if the performance does not entail payment of money the court may set a longer time-limit. ...
The time-limit for performance shall start running on the first day after the service of a copy of the judgment on the judgment debtor.”
24. Section 436 provides that in employment disputes the grace period is eight days.
3. The Enforcement Act
(a) Relevant provisions
25. The relevant part of the Enforcement Act of 1996 (Ovršni zakon, Official Gazette of the Republic of Croatia, no. 57/96 with subsequent amendments), which was in force between 11 August 1996 and 14 October 2012, at the material time provided as follows:
Enforceability of a [court] decision
Section 23(1)
“A court decision ordering [the judgment debtor] to give or do something shall be enforceable if it has become final and if the time-limit for voluntary performance [that is, the grace period – paricijski rok] has expired. The time-limit for voluntary performance runs from the date the decision is served on the enforcement debtor [the judgment debtor], unless the law provides otherwise.”
Certificate of enforceability
Section 33(1) and (2)
“(1) If an application for enforcement is lodged with a court which did not decide on the claim at first instance, the application must be accompanied by the original or a copy of the enforcement title having the certificate of enforceability ...
(2) A certificate of enforceability shall be issued by the court or [other] authority which adjudicated on the claim at first instance.”
(3) Any certificate of enforceability that was issued without the necessary statutory requirements shall be set aside by the court or [other] authority by a decision, upon request or of its own motion.”
26. Section 37(5), as in force at the material time, provided that the enforcement court was not entitled to dismiss of its own motion an application for enforcement based on a court judgment which, by the time the application was being decided upon, had become final but had not yet become enforceable. Section 37(5) read as follows:
“The court shall not of its own motion declare inadmissible an application for enforcement based on a final judicial decision [notably, a judgment], in-court settlement or notarial deed solely on the ground that those documents have not been stamped with a certificate of enforceability or because [they] have not become enforceable at the time the application for enforcement is being decided upon ...”
27. Section 67(1) of the Enforcement Act, as in force at the material time, stated grounds on the basis of which the enforcement court could discontinue the enforcement. That provision read as follows:
“Unless this Act provides otherwise, the court shall of its own motion discontinue enforcement proceedings if the enforcement title was finally quashed, reversed, annulled, repealed or otherwise deprived of its effect, or if the certificate of enforceability was set aside.”
28. Chapter 21 of the Enforcement Act regulated the enforcement of judgments ordering the reinstatement of employees. The relevant provision of that Chapter read as follows:
The time-limit for lodging an application for enforcement
Section 238
“An application for enforcement [on the basis of an enforcement title ordering an employer to reinstate an employee ...] may be lodged within a time-limit of thirty days from the date the enforcement creditor acquires the right to lodge such application.”
(b) The doctrine
29. Croatian legal scholars have expressed the opinion that setting aside the certificate of enforceability did not automatically lead to discontinuation of the enforcement proceedings, as the text of section 67(1) of the Enforcement Act (see paragraph 27 above) appeared to suggest. This was especially so in the situations such as the one referred to in section 37(5) of the same Act, namely, where the judgment sought to be enforced had become final but had not yet become enforceable (see paragraph 26 above). In such situations the enforcement court was not entitled to discontinue the enforcement proceedings. In particular (see Dika, Mihajlo: Građansko ovršno pravo [Civil Enforcement Law], Narodne novine, Zagreb, 2007, p. 416):
“If the certificate of enforceability was set aside on the grounds which do not prevent [the enforcement creditor from] seeking enforcement without such certificate (section 37(5) [of the Enforcement Act]), the fact that the certificate of enforceability was set aside cannot be a ground for discontinuation of the [enforcement] proceedings.”
30. As regards the issue how the time-limit provided for in section 238 of the Enforcement Act (see paragraph 28 above) was to be calculated the same author expressed the following view (see Dika, Mihajlo: op.cit., p. 718):
“The time-limit [in question] should in principle be calculated from the moment the enforcement title [for example, a judgment] becomes enforceable. However, given that the enforcement creditor has to exercise his or her right within that time-limit, the moment when that time-limit starts to run has to correspond to the moment when the enforcement creditor learns that [the judgment sought to be enforced] has become enforceable. One often has to wait some time to find out whether and [, if so] when the enforcement debtor [the judgment debtor] has received the first-instance [judgment] and whether he or she has appealed against it [, and if so] when the second-instance [judgment] dismissing the appeal and upholding the first-instance judgment was served on the enforcement debtor and when the grace period for voluntary compliance which started to run from the service of that [second-instance judgment] expired. Therefore, it should be understood that the thirty-day time-limit should start to run from the day the court was able to issue the certificate of enforceability.
...
Given that the court is not entitled to declare inadmissible of its own motion an application for enforcement based on a final court judgment ... simply because [the judgment sought to be enforced] has not been stamped with a certificate of enforceability at the time the application for enforcement is being decided upon, or to dismiss such application because the judgment to be enforced has not become enforceable (section 37(5) [of the Enforcement Act], it should be understood that the employee would be entitled to apply for enforcement even before [the judgment sought to be enforced] became enforceable ...”
COMPLAINT
31. The applicant complained under Article 6 § 1 of the Convention that by setting aside the certificate of enforceability of the principal judgment, the domestic courts had deprived her of the possibility to have that judgment enforced.
THE LAW
32. The applicant complained that she had been unable to enforce the principal judgment ordering her reinstatement because the domestic courts had unjustifiably set aside that judgment’s certificate of enforceability. She relied on Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
33. The Government disputed the admissibility of the application on three grounds. They argued that the applicant had failed to comply with the six-month rule and exhaust domestic remedies, and that her application was, in any event, manifestly ill-founded.
Non-exhaustion of domestic remedies
(a) The parties’ submissions
34. The Government argued that the applicant had failed to exhaust available domestic remedies, inter alia, because she had not appealed against the Šibenik Municipal Court’s decision of 22 August 2007 (see paragraph 20 above) whereby that court had discontinued the enforcement proceedings.
35. The applicant replied that such an appeal would not have been effective since, under section 67 of the Enforcement Act (see paragraph 27 above), setting aside of a certificate of enforceability had automatically resulted in the discontinuation of enforcement proceedings.
(b) The Court’s assessment
36. The Court notes that according to Croatian legal scholars section 67 (see paragraph 27 above) could not be viewed in isolation but in conjunction with other provisions of the Enforcement Act, namely section 37(5) thereof (see paragraph 26 above). In particular, in their view the enforcement court was not under the Enforcement Act entitled to discontinue the enforcement proceedings if the enforcement certificate had been set aside solely because the judgment sought to be enforced had not (yet) become enforceable (see paragraph 29 above). It would therefore appear that, a fortiori, the enforcement court was not entitled to do so either in the situation such as the one in the present case where the only reason why the certificate of enforceability had been set aside was that the judgment sought to be enforced had become enforceable earlier than the certificate indicated. Indeed, in such situations it would be inexpedient to discontinue the enforcement since the enforcement creditor could at any time obtain a new certificate of enforceability with the correct date and apply for enforcement again.
37. For these reasons the Court cannot accept the applicant’s argument (see paragraph 35 above) that lodging an appeal against the Šibenik Municipal Court’s decision of 22 August 2007 to discontinue the enforcement proceedings would not have offered her any prospects of success. Had she done so the applicant would have given the domestic courts a chance to quash that decision whereupon they would have had an opportunity to examine whether, despite setting aside of the certificate of enforceability, the applicant nevertheless applied for enforcement of the principal judgment within the thirty-day time-limit provided in section 238 of the Enforcement Act (see paragraph 28 above). According to that provision the time-limit in question started to run from the date “the enforcement creditor acquired the right to apply for enforcement”, which date did not necessarily have to correspond to the date on which the judgment had become enforceable (see paragraph 30 above).
38. Since it therefore appeared possible to have the principal judgment enforced even if the certificate of enforceability had been set aside, the applicant was, in order to comply with Article 35 § 1 of the Convention, primarily required to pursue remedies in the enforcement proceedings. However, she did not do so as she failed to appeal against the Šibenik Municipal Court’s decision of 22 August 2007.
39. In so far as any doubts remain as to the effectiveness of that remedy, the Court refers to its constant-case-law according to which the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress (see, for example, Vučković and Others v. Serbia [GC], no. 17153/11, §§ 74 and 84, 25 March 2014).
40. It follows that the present application is inadmissible under Article 35 § 1 of the Convention for non-exhaustion of domestic remedies and must therefore be rejected pursuant to Article 35 § 4 thereof.
41. In view of this conclusion the Court does not find it necessary to address the Government’s remaining inadmissibility objections (see paragraph 33 above).
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 9 April 2015.
André WampachElisabeth Steiner
Deputy RegistrarPresident
Full & Egal Universal Law Academy