ČOKO v. CROATIA
Inadmissible
Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković
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. 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. 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. 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. 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: “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.” 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. 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.” 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 ...”