Communicated on 16 December 2013
FIRST SECTION
Application no. 39070/11
SPALLDI D.O.O.
against Croatia
lodged on 15 June 2011
STATEMENT OF FACTS
The applicant company Spalldi d.o.o., is a limited liability company with its registered office in Zadar. It is represented before the Court by Ms T. Gregov, a lawyer practising in Zadar.
A. The circumstances of the case
The facts of the case, as submitted by the applicant company, may be summarised as follows.
1. Background to the case
On 4 May 2003 a contract was entered into whereby the applicant company engaged M. as the main contractor for the construction of two blocks of flats in Zadar.
As M. failed to meet a number of its contractual obligations, the applicant company decided to lodge a claim against it for 5.5 million Croatian kunas. The parties held several meetings to try and settle their outstanding dispute.
2. Enforcement proceedings against the applicant company
On 22 August 2006 M. instituted enforcement proceedings against the applicant company with a notary public, V., claiming around 3.5 million Croatian kunas in respect of outstanding invoices (ovrha na temelju vjerodostojne isprave).
On 23 August 2006 the notary public issued an enforcement order, ordering the applicant company to settle the outstanding invoices and the costs and expenses of the enforcement proceedings within eight days of the date of service. The applicant company was informed that it could lodge an appeal against the enforcement order within the same time-limit.
The applicant company was unaware of the enforcement proceedings against it until M.’s director informed its representatives that he was in possession of a final enforcement order.
On 21 September 2006 the applicant company’s director went to the notary public’s office. He was presented with an acknowledgment of service (dostavnica), which appeared to have been signed by the applicant company on 5 September 2006. He then alleged that the acknowledgment had not been signed by any of the company’s employees or stamped with its official seal. The notary public proceeded to serve the enforcement order on him in person and he signed a new acknowledgment of service.
On 27 September 2006 the applicant company appealed against the enforcement order.
On 16 October 2006 the Zadar Commercial Court (Trgovački sud u Zadru) declared the applicant company’s appeal inadmissible as lodged out of time, arguing that the enforcement order had been served on the applicant company on 5 September 2006.
On an unspecified date the applicant company appealed against that decision. It argued that none of its employees had signed the acknowledgment of service on 5 September 2006, that it had not been stamped with its official seal, and that the enforcement order definitely had not been served on anyone on its business premises. It submitted examples of signatures of all eight of its employees. It alleged that the postman might have effected service on someone at the construction site 80 meters away from its office, which would mean that the order had actually been served on one of M.’s employees instead.
On 17 April 2007 the High Commercial Court (Visoki trgovački sud Republike Hrvatske) dismissed the applicant’s appeal and upheld the Zadar Commercial Court’s decision. It found certain irregularities with the acknowledgment of service of 5 September 2006, but argued that the applicant company could institute separate proceedings disputing its validity. The relevant part of that judgment reads as follows:
“Given that the acknowledgment of service is a public document that proves what is acknowledged by it (section 230(1) of the CPA [Civil Procedure Act]), the enforcement debtor can bring a separate action and dispute its authenticity ... in accordance with section 187(1) of the CPA in conjunction with section 230(3) of the CPA, and seek damages from the public authority in charge of delivery for its error, under the general rules of tort law.”
On an unspecified date the applicant company lodged a constitutional complaint against that decision, arguing that the actual date of service had been 21 September, not 5 September 2006. It further argued that the notary public had spoken to the postman, who had confirmed that he had served the enforcement order on someone at the construction site. It invoked the practice of the Supreme Court (Vrhovni sud Republike Hrvatske) that in cases where there is doubt as to the acceptance of service of documents, they should be deemed as not served. Lastly, it relied on its rights under Articles 18 (effective remedy) and 29 (access to court) of the Constitution.
On 9 December 2010 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant company’s constitutional complaint.
On 14 April 2011 the Zadar Commercial Court ordered that the enforcement order be executed against the applicant company by seizure and sale of its real property and a yacht.
3. Proceedings concerning the validity of the acknowledgment of the acceptance of service
Meanwhile, the applicant company brought a civil action against M. in the Zadar Commercial Court, seeking that the acknowledgment of service be declared invalid and that the certificate of the enforcement order’s finality be quashed.
On 19 December 2007 the Zadar Commercial Court ruled in the applicant company’s favour, declaring the acknowledgment of service invalid (nema svojstvo javne isprave) and quashing the certificate of finality.
Upon an appeal by M., on 3 January 2012 the High Commercial Court quashed the Zadar Commercial Court’s judgment and remitted the case for fresh consideration. The relevant part of that decision reads as follows:
“...the impugned acknowledgment of service forms part of the [enforcement] proceedings ... before the Zadar Commercial Court. It is therefore not possible to institute a separate set of proceedings as to its validity. Its validity could only be questioned in the same set of proceedings in respect of which it was issued ...
In the fresh set of proceedings the first-instance court shall bear in mind the above-mentioned reasoning of this court and render a new decision based on law.
...
The first-instance court must also bear in mind that the certificate of finality cannot be quashed upon a separate action, as it was issued in the given set of [enforcement] proceedings...”
It appears that the proceedings are still pending.
COMPLAINTS
The applicant company complains, under Article 6 § 1 of the Convention, that it was denied access to a court, as it was unable to contest the validity of the acknowledgment of service.
The applicant company also complains, under Article 13 of the Convention, that it was deprived of an effective remedy against the enforcement order.
QUESTIONS TO THE PARTIES
1. Did the applicant company have access to court, as required under Article 6 § 1 of the Convention?
2. Did the applicant company have at its disposal an effective domestic remedy for its Convention complaint, as required by Article 13 of the Convention?
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