Communicated on 14 October 2014
FIFTH SECTION
Application no. 37242/14
Marinka TENCE
against Slovenia
lodged on 13 May 2014
STATEMENT OF FACTS
1. The applicant, Ms Marinka Tence, is a Slovenian national, who was born in 1950 and lives in Nova Gorica. She is represented before the Court by Ms A. Jug, a lawyer practising in Nova Gorica.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. On 29 October 2002 the applicant lodged a civil claim with the Nova Gorica Local Court. On 24 May 2011 her claim was rejected and on 13 June 2011 the judgment was served on her attorney. The deadline for appealing the judgment expired at midnight on 28 June 2011. On 28 June 2011 the applicant’s attorney lodged an appeal by fax. The next day she sent the appeal also by registered mail. On 12 July 2011 the Local Court rejected the appeal as belated. It held that the applicant had lodged her appeal on 29 June 2011 and that, therefore, it had been lodged out of time.
4. On 30 July 2011 the applicant appealed against this decision complaining that she had lodged the appeal against the first-instance judgment within the prescribed period by fax. In this regard, she submitted a fax confirmation report according to which on 28 June 2011 a document of six pages had been sent to the Local Court’s telephone number at 6.54 p.m.
5. On 14 November 2011 the Koper Higher Court dismissed the appeal. It held that the appeal lodged on 28 June 2011 would have only been regarded as being lodged within the prescribed period if it had been delivered to the court before the expiry of the period. The burden of proof that the appeal had been lodged in due time was on the applicant. According to the Higher Court, the fax confirmation report submitted by the applicant indeed showed that on 28 June 2011 the applicant had sent a document of six pages by fax. However, it made no reference to the type of document sent, its content and to which case it referred to. The court had received only the appeal that had been lodged by mail on 29 June 2011.
6. On 5 June 2012 the applicant lodged an appeal on points of law. She argued that the Local Court had received the relevant document by fax in due time, but then most probably failed to print it out and, consequently, the document was automatically deleted from the fax memory. According to her, Section 112 of the Civil Procedure Act allowed the submission of an application by fax and the date when the fax was sent should have been deemed as the date of lodging of the appeal. She could not bear the burden of proof in case the document had not been printed out by the court. Moreover, when using such media the confidentiality of documents should also be protected. The applicant alleged that on 29 July 2011, the day following the sending of the fax, she had lodged the relevant document and proved the content of the fax. She further argued that, following enquiries addressed to a telecommunication company and a fax producer, she was informed that it was not possible to prove the content of a document sent by fax the transmission being encrypted.
7. On 20 June 2013 the Supreme Court dismissed the appeal on points of law. It held that under Section 112 of the Civil Procedure Act an application was deemed to have been filed in time only if delivered to the competent court before the prescribed period had elapsed. This is equally applicable to regular mail and applications filed directly to the court. The Supreme Court referred to its decision of 4 April 2013 (II Ips 603/2009 and II Ips 718/2009) according to which proof that the fax was sent did not necessarily mean proof of receipt of the document sent by fax. There was a possibility that the court would not receive the relevant document in due time due to errors in the telecommunication network or similar technical reasons (lack of paper, empty cartridge, the shutting down of the machine etc.). Such a risk was borne by the applicant in the same manner as if the application was sent by regular mail; also in such case the risk of a late receipt of an application was borne by the applicant.
8. On 18 October 2013 the applicant lodged a constitutional complaint. On 11 November 2013 the Constitutional Court rejected the constitutional complaint as inadmissible. On 15 November 2013 this decision was served on the applicant.
B. Relevant domestic law and practice
9. The relevant provisions of the Civil Procedure Act state:
“Section 105.b
Motions shall be submitted in writing. A motion in writing shall be a motion which has been written, or printed, and signed in person (motion in physical form), or a motion submitted in electronic form and signed by a secure electronic signature certified by a qualified certificate. A motion in writing shall be submitted by mail, by electronic means, by use of means of communication technology, delivered directly to the authority, or by a person, who is engaged in serving motions as his/her activity (business supplier). A motion in electronic form shall be submitted by electronic means to the information system. Receipt of the motion shall be confirmed automatically by the information system.
A motion can also be made on a prescribed or otherwise prepared form. Irrespective of any provisions of other regulations, forms in electronic form shall have the same contents as the forms prescribed in physical form only.
A uniform information system shall be set up for courts by the competent authority.
The Minister of Justice shall prescribe the conditions and the manner for submission of motions in electronic form, or by electronic means, the form of the motion in electronic form, and the organization and performance of the information system.
Irrespective of provisions of the first and second paragraphs of the present Section, the Minister of Justice shall specify the motions that can also be made by phone, or by electronic means without a secure electronic signature certified by a qualified certificate, and the means of identification of the parties in any such case.
...
Section 112
If the filing of a motion is limited by a time period such pleading shall be deemed to have been filed in time if delivered to the competent court before the prescribed time period has elapsed.
If a motion is dispatched by registered mail or by telegraph, the date of delivery to the post office shall be deemed to be the day of delivery to the court which is designated as the addressee.
If a motion is submitted by electronic means, the time when it has been received by the information system shall be regarded as the time of submission of the motion to the court that the motion is addressed to.
...”
10. The Court Rules (Official Gazette no. 17/1995 in force from 26 March 1995, as amended) state, as far as relevant:
“Section 99
The court shall take into account the motions of the parties which were sent by telegraph or fax under the procedural rules.
Telegraph messages and motions of the parties may not derogate from the deadlines as defined by the procedural rules.
Section 100
Messages and motions of the parties sent by fax shall be regarded as written motions if they are in conformity with the procedural rules and if it can be established from the fax the time of delivery and the identity of the sender.”
11. In its decision of 4 April 2013 (II Ips 603/2009 and II Ips 718/2009) the Supreme Court held:
“... In determining whether a motion sent by means of telecommunication was lodged in due time the first paragraph of Section 112 of the Civil Procedure Act ... shall be applicable. The defendant erroneously argues that the second-instance court failed to apply this provision. The second-instance court had applied precisely this provision stressing that the second paragraph of Section 112 of the Civil Procedure Act contained a distinct regulation (according to which the date of delivery of the application shall be taken into account) which applies only to mail expressly indicated therein. This is also the view taken by the well-established jurisprudence ... and theory ... The same follows from the attached decision of the ... Higher Court to which the defendant referred to showing that the court had received the fax on the last day of the deadline (at 10.58 p.m.). In the present case the defendant is clearly of the view that proof of sending of the fax is also proof of receipt of the document sent by fax to the addressee. However, this is not always the case because there is a possibility that the court would not receive the relevant document in due time due to errors in the telecommunication network or similar technical reasons. Such a risk is borne by the applicant.
...
13. The working of the court by telephone, telegraph and fax is regulated by the Court Rules. Thus, Section 99 states that the court shall take into account the motions of the parties which were sent by telegraph or fax under the procedural rules and that in case of telegraph messages and motions of the parties a derogation from the deadlines as defined by the procedural rules is not possible. Even though from the following Section 100 of the Court Rules ... it may be inferred that the relevant time is the time of delivery, Section 99 of the Court Rules is unambiguous and clearly refers to the application of the procedural rules as regards the time-limits. Moreover, a regulation cannot amend a statutory provision.
...”
COMPLAINT
The applicant complains under Article 6 § 1 of the Convention that by rejecting her appeal as belated the domestic courts had deprived her of access to a court. She argues that the interpretation of the domestic courts in this regard is arbitrary and unlawful.
QUESTION TO THE PARTIES
Did the rejection of the applicant’s appeal lodged by fax as belated amount to a disproportionate interference with the applicant’s right of access to court under Article 6 § 1 of the Convention?
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