FOURTH SECTION
DECISION
Application no. 54213/12
Danica LORGER
against Slovenia
The European Court of Human Rights (Fourth Section), sitting on 26 January 2016 as a Chamber composed of:
András Sajó, President,
Vincent A. De Gaetano,
Boštjan M. Zupančič,
Nona Tsotsoria,
Paulo Pinto de Albuquerque,
Krzysztof Wojtyczek,
Gabriele Kucsko-Stadlmayer, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 17 August 2012,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Danica Lorger, is a Slovenian national who was born in 1955 and lives in Ljubljana. She was represented before the Court by Odvetniška Pisarna Tine Šnajder Paunović, a law firm practising in Ljubljana.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. On 22 December 2009, following her dismissal from work, the applicant brought a claim against her former employer in the Ljubljana Labour Court, requesting that the dismissal be declared unlawful and that she be reinstated to her previous position. She alleged, inter alia, that her previous employer had transferred its entire printing business to another company, and that this company (by virtue of the applicable labour law) had a duty to assume the contractual obligations of her previous employer.
4. On 29 November 2010 the Ljubljana Labour Court dismissed the applicant’s claim, having established that her employer had in fact closed its printing business and terminated the employment contracts of all its employees in the printing department. The court found that the termination was justified, having regard to the circumstances. Moreover, it held that the applicant’s previous employer had not transferred its printing business, but had merely sold the printing equipment to another company.
5. The first-instance judgment included information on legal remedies and drew the applicant’s attention to the fact that the provisions of the Civil Procedure Act concerning the amendment and perfection of pleadings did not apply to appeal proceedings.
6. On 14 January 2011 the applicant lodged an appeal with the Higher Labour Court.
7. On 6 September 2011 the Higher Labour Court dismissed the applicant’s appeal, finding that the first-instance judgment did not contain any error of fact or law. The court confirmed that the sale of the printing equipment had not constituted a transfer of the business, and that the applicant was therefore not entitled to continue her employment with the new owner of the equipment.
8. On 9 November 2011 the applicant lodged an appeal on points of law. The appeal document was submitted with a power of attorney, which was given for the specific purpose of lodging the appeal in the applicant’s case. The power of attorney was signed by the applicant and her lawyer. The appeal document itself bore the lawyer’s stamp, but was not signed by either the applicant or her lawyer.
9. On 6 February 2012 the Supreme Court rejected the applicant’s appeal on points of law as inadmissible for failure to meet the formal requirements. The court explained that sections 335 and 383 of the Civil Procedure Act set down minimum requirements for appeals on points of law: identification of the judgment which was subject to appeal and a signature of either the appellant or the lawyer. The Supreme Court noted that the appeal on points of law was not signed by either the applicant or her lawyer, rendering it incomplete. According to the rules of civil procedure, an incomplete appeal on points of law was to be rejected forthwith, without a party being given the opportunity to perfect it.
10. On 19 April 2012 the applicant lodged a constitutional complaint with the Constitutional Court, alleging that one of the component parts of the appeal on points of law was the original power of attorney signed by both herself and her lawyer. The applicant was of the view that the sanction of rejecting her appeal on points of law constituted an excessive interference with her right to judicial protection and her right of appeal. The applicant pointed out that the Supreme Court’s rejection had precluded her right to appeal, as the time-limit for lodging an appeal had meanwhile expired. In her opinion, in labour dispute cases such as her own, where workers, as the weaker parties, were aiming to protect their socioeconomic status, they should not be made to suffer such grave consequences. In this connection, the applicant claimed that the interference complained of was disproportionate to the aim pursued by the legislature. According to a parliamentary bulletin containing draft laws and explanatory commentary, the 2008 amendment to the Civil Procedure Act – which had, inter alia, removed the possibility of amending or perfecting incomplete pleadings in appeal proceedings – had been passed with a view to tackling the backlog of cases pending before the higher courts, thereby guaranteeing a party’s right to trial within a reasonable time. The applicant, however, pointed out that the rule on the immediate rejection of incomplete pleadings did not affect an appellant’s duty to pay court fees. While the higher courts continued to call upon appellants to pay fees instead of rejecting their applications forthwith, the applicant had not been afforded the possibility of remedying the procedural defect in her appeal on points of law. Having regard to the unchanged rules regarding the payment of fees, the applicant maintained that the rule in question did not in fact pursue the legitimate aim of accelerating proceedings.
11. On 12 June 2012 the Constitutional Court dismissed the applicant’s constitutional complaint, finding that it did not concern an important constitutional question or entail a violation of human rights which would have serious consequences for the applicant.
B. Relevant domestic law
12. The relevant provisions of the Civil Procedure Act (Official Gazette no. 73/07, with a further amendment passed on 9 May 2008, Official Gazette no. 45/08) state:
Chapter 5 – Representatives
Section 86
“...
In extraordinary judicial review proceedings, a party may only perform procedural steps through a representative who is a practising lawyer.”
Chapter 7 - Pleadings
Section 108
“If pleadings are unclear or do not contain all of the information necessary for proceeding with the case, the court shall request the person submitting the pleadings to amend or perfect them. ...
Upon ordering the amendment or perfection of pleadings, the court shall fix a time-limit for such changes.
...
If the pleadings are not amended or perfected so as to be capable of being dealt with, the court shall reject them.
...”
Chapter 25 – Ordinary legal remedies
Section 335
“An appeal shall contain
1. a reference to the decision which is subject to appeal;
2. a statement as to whether the decision is being challenged in whole or in part;
3. the grounds of appeal; and
4. the signature of the appellant.”
Section 336
“In appeal proceedings, the provisions of section 108 of this Act concerning the amendment or perfection of incomplete pleadings are not applicable.
...”
Section 343
“An out-of-time, incomplete or inadmissible appeal shall be rejected by order of the presiding judge of the court of first instance without a hearing.
...
An appeal is incomplete if it does not contain the elements referred to in the first and fourth points of section 335 of this Act.
...”
Section 346
“When the case file for the appeal arrives at the court of second instance, the reporting judge shall decide whether the appeal is ... complete ... An incomplete ... appeal shall be rejected by order of the reporting judge, if the presiding judge of the panel of the court of first instance has not already done so (section 343).
...”
Chapter 26 – Extraordinary legal remedies
Section 367
“An appeal on points of law may be lodged against a final judgment of a court of second instance within thirty days of service of a transcript of the judgment (in the case of a statutorily permitted appeal), or within fifteen days of service of a Supreme Court decision granting leave to appeal (in cases of leave to appeal).
An appeal on points of law shall be permitted if the value of the subject of the part of the final judgment which is in issue exceeds EUR 40,000 (statutorily permitted appeal).
If an appeal on points of law is not permitted under the provisions of the preceding subsection, it may only be lodged if leave to appeal is granted by the court under section 367.a of this Act.
...”
Section 370
“An appeal on points of law may be lodged:
1. on the grounds of a violation of the essential requirements of civil procedure referred to in the second subsection of section 339 of the present Act, except where the violation concerns an issue of territorial jurisdiction ... or arbitration agreement ..., or if the judge of the court of first instance has given a judgment without hearing the case ..., or if the court has adjudicated upon a claim which is subject to another action which is pending ..., or if the public has been wrongfully excluded from the substantive hearing ...;
2. on the grounds of a violation of the essential requirements of civil procedure referred to in the first paragraph of section 339 of this Act in the proceedings before the court of second instance; or
3. on the grounds of a violation of substantive law.
...
An appeal on points of law may not be lodged on the grounds of erroneous or incomplete determination of the facts.
...”
Section 383
“If not otherwise provided for in sections 367-382, the provisions of this Act concerning appeals against judgments (sections ... 335, 336) ... shall be applicable mutatis mutandis to proceedings concerning appeals on points of law.”
COMPLAINT
13. The applicant complained under Articles 6 and 13 of the Convention that the rejection of her appeal on points of law constituted a disproportionate interference with her right of access to the Supreme Court. According to the applicant, the separate sheet containing the signed power of attorney should have sufficed to render her appeal complete, especially since the Civil Procedure Act did not specify exactly where the appellant’s signature should be placed in the appeal document.
THE LAW
14. Invoking Articles 6 and 13 of the Convention, the applicant complained that her right of access to a court had been infringed as a result of the Supreme Court’s excessive formalism in examining her appeal on points of law. The applicant reiterated the complaints she had made before the Constitutional Court. Having regard to the nature and substance of this complaint, the Court considers that it falls to be examined solely under Article 6, the relevant part of which reads:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
15. At the outset, the Court reiterates that Article 6 of the Convention does not compel Contracting States to set up courts of appeal or cassation (see, among other authorities, Delcourt v. Belgium, 17 January 1970, §§ 25‑26, Series A no. 11). However, where such courts do exist, Article 6 guarantees must be complied with, for instance the guarantee to litigants of an effective right of access to the courts for the determination of their “civil rights and obligations”.
16. The “right to a court”, of which the right of access is one aspect, is not absolute; it is subject to limitations permitted by implication, in particular where the conditions of admissibility of an appeal are concerned, since by its very nature it calls for regulation by the State, which enjoys a certain margin of appreciation in this regard. However, these limitations must not restrict or reduce a person’s access in such a way or to such an extent that the very essence of the right is impaired; lastly, such limitations will not be compatible with Article 6 § 1 if they do not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see, among other authorities, Brualla Gómez de la Torre v. Spain, 19 December 1997, § 33, Reports of Judgments and Decisions 1997‑VIII, and Edificaciones March Gallego S.A. v. Spain, 19 February 1998, § 34, Reports 1998‑I).
17. The manner in which Article 6 § 1 applies to courts of appeal or cassation depends on the special features of the proceedings concerned, and account must be taken of the entirety of the proceedings conducted in the domestic legal order and the court of cassation’s role in them. In this connection, the Court has recognised that the conditions of admissibility of an appeal on points of law may be stricter than those relating to an ordinary appeal (see, among other authorities, Levages Prestations Services v. France, 23 October 1996, §§ 44–45, Reports 1996‑V).
18. Furthermore, the Court’s task is not to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to or affected the applicant gave rise to a violation of the Convention (see, mutatis mutandis, Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 70, 20 October 2011, and Padovani v. Italy, 26 February 1993, § 24, Series A no. 257‑B).
19. Turning to the present case, the Court notes that, under the rules of domestic civil procedure, an appeal to the Supreme Court on points of law is an extraordinary legal remedy which can be lodged on the grounds of a violation of essential procedural requirements or substantive law, but not on the grounds of erroneous or incomplete determination of the facts. The Supreme Court’s supervisory role is therefore limited to reviewing whether the law was correctly applied. Given the special nature of its role, the Court accepts, as it has in a number of similar cases, that the procedure in the Supreme Court may be more formal, especially as the parties are required to be represented by a lawyer (see section 86 of the Civil Procedure Act in paragraph 12 above).
20. The Court further notes that, according to the explanatory commentary in the draft amendment to the Civil Procedure Act, upon which the applicant relied (see paragraph 10 above), the legislature’s aim in amending the provisions concerning proceedings before the Supreme Court was to ensure that the court in question was presented with complete and sufficiently reasoned applications which facilitated effective and timely decision-making, and that it was protected from an excessive caseload and therefore able to focus on examining important legal issues, thereby strengthening and developing its case-law. To this end, the requirement in section 335 of the Civil Procedure Act that appeals must include, inter alia, the signature of the appellant (a provision that, in practice, appears to be interpreted as requiring either the appellant’s or his or her lawyer’s signature) was followed by a new section 336, removing the opportunity for the parties to perfect incomplete pleadings in appeal proceedings. Read in conjunction with section 383 of the same Act, which provides that sections 335 and 336 apply to proceedings involving an appeal on points of law, the above-mentioned provisions specify in a sufficiently clear and explicit manner the formal requirements that appellants must comply with, and, in the Court’s opinion, render the consequences of incomplete appeals foreseeable (see Levages Prestations Services, cited above, § 42, and Berger v. France, no. 48221/99, § 32, ECHR 2002‑X (extracts)). In any event, the Court notes that the applicant made no allegations to the effect that the relevant provisions of the Civil Procedure Act, or their interpretation and application in her case, lacked the necessary foreseeability.
21. Neither did the applicant question the reasonableness of the principle of requiring that pleadings including appeals on points of law be signed. Indeed, in the Court’s opinion, the procedural rule requiring pleadings to be signed shows that a party, or a lawyer entitled to represent him or her in judicial proceedings, assumes responsibility for the content of a particular document submitted to the court. The signature thus confirms the authenticity of such a document and should be regarded as an important means of ensuring the proper administration of justice and, in particular, compliance with the principle of legal certainty. The Court is therefore unable to agree with the applicant that the lawyer’s stamp, together with the signatures appearing on the separate power of attorney, ought to have been accepted as a valid replacement for the handwritten signature.
22. Further, as regards the consequences of the applicant’s failure to sign the appeal on points of law, it is true that it resulted in her being deprived of the opportunity to have her appeal on points of law examined on the merits. However, neither can it be overlooked that the merits of the applicant’s case had been examined at two levels of jurisdiction prior to being submitted to the Supreme Court (see Levages Prestations Services, cited above, § 48), which, in the Court’s opinion, considerably mitigates the negative effects of the rule providing for the immediate rejection of incomplete appeals. More importantly, the negative consequences could have been avoided altogether by using the reasonable diligence required when submitting written pleadings to the court. In this connection, the Court is particularly mindful of the fact that the formal requirements for lodging an appeal on points of law include obligatory representation by a lawyer, a legal professional who is expected to know the applicable procedural rules in appeal proceedings (see, mutatis mutandis, Schmid v. Switzerland, no. 49396/07, § 31, 22 July 2014, and Tourisme d’affaires v. France, no. 17814/10, § 32, 16 February 2012). Lastly, the Court observes that the applicant was explicitly warned in the first-instance judgment that incomplete pleadings in appeal proceedings were not sent back to be perfected (see paragraph 5 above).
23. Having regard to the above considerations, the Court is unable to conclude that the procedural rule in question prevented the applicant’s appeal on points of law from being examined on the merits; rather, the rejection is to be attributed to an avoidable mistake on the applicant’s part. Lastly, in the Court’s opinion, the limitations placed on the applicant’s access to the Supreme Court were proportionate to the legitimate aim of strengthening the effectiveness of the Supreme Court’s functioning, an aim which was pursued by the introduction of the rule on the immediate rejection of incomplete pleadings. Accordingly, the essence of the applicant’s right of access to a court under Article 6 § 1 was not impaired.
24. It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and must be rejected in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 18 February 2016.
Fatoş AracıAndrás Sajó
Deputy RegistrarPresident
Full & Egal Universal Law Academy