FIRST SECTION
Application no. 31779/08
Nada ČOKO against Croatia
lodged on 16 June 2008
STATEMENT OF FACTS
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, lawyers practising in Šibenik.
The application was lodged with the Court on 16 June 2008.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 1997 the applicant was dismissed from her employment at company B.
On an unspecified date in 1997, the applicant brought a civil action in the Šibenik Municipal Court (Općinski sud u Šibeniku) asking that the decision on her dismissal be annulled.
On 17 September 1997 the Šibenik Municipal Court granted the applicant’s claim and ordered her reinstatement. On 15 June 1998 that judgment became final when it was upheld by the Šibenik County Court (Županijski sud u Šibeniku).
On 7 March 2000 the Šibenik Municipal Court issued a stamped confirmation that the judgment had become final and enforceable on that same day, and on the same day the applicant requested that the judgment be enforced by the Šibenik Municipal Court.
On 23 May 2000 the Šibenik Municipal Court issued an enforcement order.
Company B. lodged an appeal with the Šibenik County Court claiming that the applicant had failed to comply with the statutory time-limit for seeking the enforcement.
On 22 October 2001 the Šibenik County Court dismissed company B.’s appeal.
On 29 May 2006 the Šibenik Municipal Court, without a hearing and in absence of the parties, quashed its decision that the judgment had become final and enforceable on 7 March 2000 on the ground that the judgment had been served on one of company B.’s two representatives on 17 March 1999 and that therefore the judgment had already become enforceable on 26 March 1999.
On 26 July 2006 the applicant appealed against that decision, arguing that her representative had made daily inquires about the enforceability of the judgment with the registry of the Šibenik Municipal Court since 5 February 1999, when the judgment had been served on him, but had received the stamped confirmation that the judgment had become final and enforceable only on 7 March 2000.
On 16 April 2007 the Šibenik County Court dismissed the applicant’s appeal and upheld the first-instance decision.
On 18 July 2007 the applicant lodged a constitutional complaint arguing that the decisions of the Šibenik Municipal Court and the Šibenik County Court deprived her of the possibility to have the final judgment which entitled her to reinstatement enforced, since they created a situation in which her request for enforcement had been lodged outside of the thirty-day statutory time-limit.
On 22 August 2007 the Šibenik Municipal Court terminated the enforcement proceedings. It found that without the stamped confirmation that the judgment had become final, grounds for enforcement ceased to exist.
On 29 November 2007 the Constitutional Court (Ustavni sud Republike Hrvatske) declared the applicant’s constitutional complaint inadmissible.
B. Relevant domestic law
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) as in force at the material time, provided 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.”
The relevant provisions 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), as in force at the material time, provided as follows:
Section 23
“(1) A court decision ... is enforceable if it has become final and if the term for voluntary fulfilment has expired. The term for voluntary fulfilment runs from the date of delivery of the decision to the execution debtor, unless provided otherwise by law.”
Section 46
“(1) The execution debtor may lodge an appeal against the execution order:
...
5. if the period during which execution can be demanded in accordance with the law has expired
...”
Section 238
“A request for enforcement [on the basis of enforcement title by which an employer is ordered to resume a contract of employment] can be lodged within 30 days from the day the execution creditor obtained the right to lodge such a request.”
COMPLAINT
The applicant complains under Article 6 § 1 of the Convention that the enforcement proceedings were unfair, in that the domestic courts, in revising the previously determined issue of the enforceability of the judgment in the applicant’s favour, deprived her of the possibility to have that judgment enforced.
QUESTION TO THE PARTIES
Were the enforcement proceedings fair, in accordance with Article 6 § 1 of the Convention? In particular, did the applicant have access to court in order to have the final judgment of 15 June 1998 enforced and was the principle of legal certainty respected?
The Government are invited to submit all case files concerning the applicant’s case in two copies.
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