CASE OF MIKULOVA v. SLOVAKIA
Violation of Art. 6-1 (access to court);Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
Nicolas Bratza
4. The applicant was born in 1952 and lives in Prešov. 5. In 1993 the applicant was dismissed from her job. On 16 November 1995 the Prešov District Court found that the dismissal had been unlawful. On 20 November 1995 it issued a supplementary judgment in which, inter alia, it dismissed the applicant’s claim that her employment with the defendant still continued. The parties did not appeal against this conclusion and it thus became final. 6. On 18 August 1997 the Prešov District Court delivered a decision approving a settlement agreement under which the defendant undertook to pay compensation to the applicant for the above unlawful termination of her employment. The period for which compensation was to be paid ended by the date on which the judgment of 16 November 1995 had become final, that is 3 June 1997. 7. On 10 October 1997 the employer asked the applicant to sign a document indicating that she was being compensated for lost income in the context of the above judicial decisions and the subsequent settlement agreement. The document further indicated that the applicant had refused to resume her job, agreed to the termination of her employment with effect from 31 May 1997, and waived any further claims in this respect. 8. On 22 November 1997 the applicant challenged the second termination of her employment before the Prešov District Court. She alleged that she had been obliged to sign the above document. 9. In the course of 1998 the District Court held six hearings, and on 10 September 1998 it found that the termination of the applicant’s employment as from 31 May 1997 had been unlawful. The court heard witnesses and took further evidence. It established that the applicant had not agreed to the termination of her employment of her own free will as the relevant document had been typed in advance and the payment of compensation under the earlier judicial decisions was made subject to the applicant’s agreement to the termination of her employment. 10. On 29 October 1998 the defendant appealed. On 13 November 1998 the applicant submitted her observations in reply. 11. On 28 June 1999 the Prešov Regional Court overturned the first instance judgment and dismissed the applicant’s action. It noted that in the first set of proceedings terminated by the Prešov District Court’s judgments of 16 and 20 November 1995, the applicant’s claim concerning the duration of her contract employment had been dismissed as the applicant had expressly stated at a hearing that she did not wish to return to her job. That decision had become final. As a result, the applicant’s contract of employment had been terminated in accordance with the relevant law. The Regional Court concluded that, when the above document had been signed on 10 October 1997, the applicant had no longer been entitled to be employed by the defendant. 12. The appellate court’s judgment was to be served on the parties through the intermediary of the District Court. It was sent by registered mail and the delivery slip indicates that the post officer unsuccessfully attempted to serve the document at the address of the applicant’s advocate on 3 and 4 August 1999. The delivery slip further indicates that the envelope was deposited at the post office on the latter date. 13. The advocate representing the applicant was on leave abroad between 30 July 1999 and 14 August 1999. The employee authorised to receive mail addressed to the advocate fell ill on 30 July 1999. A medical certificate indicates that she was on sick leave until 13 August 1999. A different employee of the advocate was on leave from 2 to 6 August 1999. She came back to work on 9 August 1999. On that day the advocate’s employee received the appellate courts’ judgment and signed the delivery slip to that effect. The applicant’s advocate explained that other employees had been present in the premises on 3 and 4 August 1999. However, they were assigned to work in the context of bankruptcy proceedings entrusted to the advocate and they were not authorised to receive mail on his behalf. 14. On 23 August 1999 the District Court’s Registry put a stamp on the appeal judgment indicating that it had become final on 13 August 1999. 15. On 8 September 1999 the applicant filed an appeal on points of law against the Regional Court’s judgment. She argued that the appellate court had failed to establish the relevant facts and that its decision was arbitrary. 16. The Prešov District Court submitted the appeal on points of law to the Supreme Court on 15 November 1999. The accompanying letter stated that the appellate court’s judgment had become final on 13 August 1999 and that the appeal on points of law had been filed within one month from that date as required by the law. 17. On 22 February 2000 the Supreme Court rejected the appeal on points of law as having been lodged belatedly. The Supreme Court, with reference to the file, held that an attempt to serve the Regional Court’s judgment on the parties’ lawyers had been made on 3 August 1999. However, the addressees could not be reached at their respective address. A second attempt to serve the judgment on 4 August 1999 had failed notwithstanding that the addressees had been staying at the places of service. The envelopes with the judgment had therefore been deposited at the post office and the addressees had been notified thereof. As the addressees had not withdrawn the mail at the post office within three days from the moment of its deposit there, the third day of this period, that is 7 August 1999, was to be considered as the date of service in accordance with Article 47(2) of the Code of Civil Procedure. The one-month timelimit for filing an appeal on points of law had therefore expired on 7 September 1999. 18. On 4 April 2000 the applicant requested the Prosecutor General to file an extra-ordinary appeal on points of law on her behalf. She argued that the Supreme Court had proceeded arbitrarily when concluding that the appeal on points of law had not been filed in time. In particular, the applicant submitted that her lawyer had been abroad on leave from 30 July 1999 to 14 August 1999 and that his employee authorised to receive the mail had been on sick leave between 30 July 1999 and 13 August 1999. The judgment had been received on 9 August 1999 and no notification of its deposit at the post office had been found in the lawyer’s office. The applicant argued that the requirement making service by default of a judgment subject to the addressee’s presence at the place of service had not been met in her case. 19. On 26 July 2000 the Office of the Prosecutor General informed the applicant that an extra-ordinary appeal on points of law was not available in the case. 20. Subsequently the applicant complained to the Supreme Court that the name of the defendant company was incorrectly indicated in the decision of 22 February 2000. On 22 June 2004 the Supreme Court issued a decision by which it rectified that mistake. 21. On 19 February 2002 the applicant claimed compensation from the advocate who had represented her in the above proceedings. She maintained that, as a result of the advocate’s failure to file the appeal on points of law in time, she had been prevented from recovering compensation for lost salary which had been the subject-matter of those proceedings. 22. On 31 March 2003 the Prešov District Court dismissed the action. The Regional Court in Prešov upheld this judgment on 10 December 2003. The courts held that the applicant had not shown that she would have succeeded in the proceedings had the cassation court quashed the appellate judgment. 23. On 5 April 2004 the applicant filed a complaint to the Constitutional Court. She claimed that the Supreme Court’s decision of 22 February 2000 was void as the defendant had been incorrectly indicated in it. The applicant also complained under Article 6 § 1 of the Convention that her claim for compensation filed against the advocate had not been determined in an appropriate manner. 24. On 28 April 2004 the Constitutional Court rejected the applicant’s complaints about the Supreme Court’s decision of 22 February 2000 and the Prešov District Court’s judgment of 31 March 2003 as they had been filed beyond the statutory two months time-limit from the delivery of those decisions. The Constitutional Court further held that the Prešov Regional Court’s judgment of 10 December 2003 was not arbitrary. 25. Article 47(2) provides that, where a document is to be notified to an addressee in person and the addressee has not been reached notwithstanding that he or she is staying at the place of service, the person delivering the document shall inform the addressee in an appropriate manner that a second attempt to deliver it will be made at a time indicated in the notification. Where such a new attempt to serve the document fails, the person in charge of the delivery shall deposit the document at the post office or with a municipal body and shall notify the addressee thereof in an appropriate manner. Where the addressee fails to withdraw such a document within three days from its deposition, the last day of this term is considered as the day of service even if the addressee did not learn that the document had been deposited with the post office or a municipal authority. 26. Pursuant to Article 158(2), a certified copy of a judgment is to be served on the parties or, as the case may be, on their representatives in person. 27. Under paragraph 4 of Article 158, a judgment with reasons is to be prepared in writing and dispatched to the parties within 30 days from its oral delivery unless the president of the court decides otherwise for important reasons. 28. Article 159(1) provides that a judgment which cannot be challenged by means of an appeal is final. 29. Pursuant to Article 238(1), an appellate court’s judgment modifying a first instance judgment on the merits of a case can be challenged by means of an appeal on points of law. 30. Article 240(1) provides that a party can file an appeal on points of law within one month from the final effect of an appellate court’s decision. An appeal on points of law is to be filed with the court which decided the case at first instance. Under paragraph 2 of Article 240, there can be no exemption from the time-limit laid down in paragraph 1. Where, however, an appeal on points of law is filed with the court of appeal or court of cassation within one month from the final effect of the appellate court’s decision, the time-limit is deemed to have been complied with. 31. A document to be served on a party in person is not deemed to have been served by default under Article 47(2) of the Code of Civil Procedure where the addressee was not residing at the place of delivery at the time when the attempt to deliver the document to him or her was made (Collection of opinions, conclusions, analyses and assessments of judicial practice, No. IV, p. 1087 and also Supreme Court’s Collection 42/1999). 32. Where the requirements of Article 47(2) of the Code of Civil Procedure for service by default of a document have been complied with, such a document is considered to have been served on the third day from the moment when it was deposited with the competent authority regardless of the date when the addressee actually received it (Supreme Court’s Collection 3/1996 and 24/1998). 33. In a judgment of 27 August 2002 the Supreme Court, in the context of proceedings under the Administrative Proceedings Act, clarified the requirements for service by default of a document which was to be delivered to the addressee in person. It held, in particular, that the requirement that the addressee should reside at the place where the document was to be served was not met where the addressee was either outside that place, for example on leave or a business trip, or where his or her health condition prevented the addressee in an objective manner from coming to the place of delivery of the document (Supreme Court’s Collection 50/2003).