CASE OF ŠIMECKI v. CROATIA
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković
5. The applicant was born in 1981 and lives in Mirkovci. 6. On 7 July 2004 the Krk Municipal Court (Općinski sud u Krku) issued an enforcement order (hereinafter “the first enforcement order”) against the applicant’s movable assets for unpaid mobile telephone bills in the period between 5 July and 6 October 2003. This decision was served on a certain M.K. on 22 October 2004, and subsequently became final. 7. At the plaintiff’s request, on 7 July 2006 the Krk Municipal Court ordered the enforcement (hereinafter “the second enforcement order”) by way of attachment of the applicant’s earnings. This decision was served on the applicant on 27 November 2006. 8. On 4 December 2006 the applicant lodged an appeal against both enforcement orders. She argued that she could not have made the said telephone calls, because she had been in prison between 14 August 2003 and 26 October 2004 and the police seized her mobile telephone. She enclosed a receipt to show that her mobile telephone and SIM cards had been taken from her. 9. She further argued that the first enforcement order had never been served on her as she was in prison at the time. 10. Finally, the applicant requested the quashing of the certificate of enforceability (klauzula ovršnosti) of the first enforcement order. 11. The recipient of the applicant’s submission of 4 December 2006 was the Krk Municipal Court, which forwarded it to the Koprivnica County Court (Županijski sud u Koprivnici) as an appeal against the second enforcement order. 12. On 29 August 2007 the Koprivnica County Court declared the applicant’s appeal inadmissible as lodged out of time, finding that the last day for lodging an appeal was 5 December 2006, whereas the appeal had been lodged on 6 December 2006. 13. On 17 September 2007 the applicant asked the County Court to rectify its decision, as in fact she had lodged her appeal on 4 December 2006. 14. On 12 October 2007 the Koprivnica County Court dismissed the applicant’s request for rectification. The relevant part of that decision reads as follows: “... the Court can rectify mistakes in names and numbers and other obvious mistakes... and flaws... In this case, the complaint was indeed erroneously declared inadmissible as out of time... Nevertheless, a mistake of this sort is not an obvious mistake... which can be rectified, but it is an erroneous decision binding the Court after its service on the parties, notwithstanding its invalidity... It should be mentioned, however, that the enforcement debtor did not suffer any disadvantage as a result of such a decision. The enforcement debtor in fact appealed against the enforcement order... of 7 July 2006 on the grounds of a serious breach of procedural rules, arguing that the enforcement order was not served on her. Since the enforcement order in question was merely a decision changing the means of enforcement, and a decision of such nature can be appealed against only if it orders enforcement of objects and rights exempted from enforcement (section 46 (2) of the Enforcement Act)... the enforcement debtor’s appeal should have been dismissed. If the enforcement debtor’s claim that the initial enforcement order was never served on her were true, that decision could not have become final and the enforcement debtor should, in the view of this Court, have asked the first-instance court to duly serve the enforcement order on her, so that she could appeal against it...” 15. The applicant subsequently made a constitutional complaint, following which the Constitutional Court (Ustavni sud Republike Hrvatske) separated that complaint into a complaint against the decision of the Koprivnica County Court to declare the applicant’s appeal inadmissible and a complaint against the refusal of the Koprivnica County Court to rectify its previous decision. The Constitutional Court declared both complaints inadmissible on 26 October 2009, on the grounds that they did not concern decisions on the merits of the case and as such were not susceptible to constitutional review. 16. Meanwhile, on 30 November 2007 the applicant lodged a complaint with the Supreme Court (Vrhovni sud Republike Hrvatske) about the length of the enforcement proceedings. 17. On 10 December 2007 the Supreme Court ruled that it lacked jurisdiction, and forwarded the case to the Rijeka County Court (Županijski sud u Rijeci). 18. On 29 January 2009 the Rijeka County Court found a violation of the applicant’s right to a hearing within a reasonable time, awarded her 4,500 Croatian kunas (HRK) in compensation, and ordered the Krk Municipal Court to complete the enforcement proceedings within six months of service of its decision. 19. It appears that the Krk Municipal Court failed to meet that deadline.