LORGER v. SLOVENIA
Inadmissible
András Sajó;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
1. The applicant, Ms Danica Lorger, is a Slovenian national who was born in 1955 and lives in Ljubljana. She was represented before the Court by Odvetniška Pisarna Tine Šnajder Paunović, a law firm practising in Ljubljana. 3. On 22 December 2009, following her dismissal from work, the applicant brought a claim against her former employer in the Ljubljana Labour Court, requesting that the dismissal be declared unlawful and that she be reinstated to her previous position. She alleged, inter alia, that her previous employer had transferred its entire printing business to another company, and that this company (by virtue of the applicable labour law) had a duty to assume the contractual obligations of her previous employer. 4. On 29 November 2010 the Ljubljana Labour Court dismissed the applicant’s claim, having established that her employer had in fact closed its printing business and terminated the employment contracts of all its employees in the printing department. The court found that the termination was justified, having regard to the circumstances. Moreover, it held that the applicant’s previous employer had not transferred its printing business, but had merely sold the printing equipment to another company. 5. The first-instance judgment included information on legal remedies and drew the applicant’s attention to the fact that the provisions of the Civil Procedure Act concerning the amendment and perfection of pleadings did not apply to appeal proceedings. 6. On 14 January 2011 the applicant lodged an appeal with the Higher Labour Court. 7. On 6 September 2011 the Higher Labour Court dismissed the applicant’s appeal, finding that the first-instance judgment did not contain any error of fact or law. The court confirmed that the sale of the printing equipment had not constituted a transfer of the business, and that the applicant was therefore not entitled to continue her employment with the new owner of the equipment. 8. On 9 November 2011 the applicant lodged an appeal on points of law. The appeal document was submitted with a power of attorney, which was given for the specific purpose of lodging the appeal in the applicant’s case. The power of attorney was signed by the applicant and her lawyer. The appeal document itself bore the lawyer’s stamp, but was not signed by either the applicant or her lawyer. 9. On 6 February 2012 the Supreme Court rejected the applicant’s appeal on points of law as inadmissible for failure to meet the formal requirements. The court explained that sections 335 and 383 of the Civil Procedure Act set down minimum requirements for appeals on points of law: identification of the judgment which was subject to appeal and a signature of either the appellant or the lawyer. The Supreme Court noted that the appeal on points of law was not signed by either the applicant or her lawyer, rendering it incomplete. According to the rules of civil procedure, an incomplete appeal on points of law was to be rejected forthwith, without a party being given the opportunity to perfect it. 10. On 19 April 2012 the applicant lodged a constitutional complaint with the Constitutional Court, alleging that one of the component parts of the appeal on points of law was the original power of attorney signed by both herself and her lawyer. The applicant was of the view that the sanction of rejecting her appeal on points of law constituted an excessive interference with her right to judicial protection and her right of appeal. The applicant pointed out that the Supreme Court’s rejection had precluded her right to appeal, as the time-limit for lodging an appeal had meanwhile expired. In her opinion, in labour dispute cases such as her own, where workers, as the weaker parties, were aiming to protect their socioeconomic status, they should not be made to suffer such grave consequences. In this connection, the applicant claimed that the interference complained of was disproportionate to the aim pursued by the legislature. According to a parliamentary bulletin containing draft laws and explanatory commentary, the 2008 amendment to the Civil Procedure Act – which had, inter alia, removed the possibility of amending or perfecting incomplete pleadings in appeal proceedings – had been passed with a view to tackling the backlog of cases pending before the higher courts, thereby guaranteeing a party’s right to trial within a reasonable time. The applicant, however, pointed out that the rule on the immediate rejection of incomplete pleadings did not affect an appellant’s duty to pay court fees. While the higher courts continued to call upon appellants to pay fees instead of rejecting their applications forthwith, the applicant had not been afforded the possibility of remedying the procedural defect in her appeal on points of law. Having regard to the unchanged rules regarding the payment of fees, the applicant maintained that the rule in question did not in fact pursue the legitimate aim of accelerating proceedings. 11. On 12 June 2012 the Constitutional Court dismissed the applicant’s constitutional complaint, finding that it did not concern an important constitutional question or entail a violation of human rights which would have serious consequences for the applicant. 12. The relevant provisions of the Civil Procedure Act (Official Gazette no. 73/07, with a further amendment passed on 9 May 2008, Official Gazette no. 45/08) state: “... In extraordinary judicial review proceedings, a party may only perform procedural steps through a representative who is a practising lawyer.” “If pleadings are unclear or do not contain all of the information necessary for proceeding with the case, the court shall request the person submitting the pleadings to amend or perfect them. ... Upon ordering the amendment or perfection of pleadings, the court shall fix a time-limit for such changes. ... If the pleadings are not amended or perfected so as to be capable of being dealt with, the court shall reject them. ...” “An appeal shall contain 1. a reference to the decision which is subject to appeal; 2. a statement as to whether the decision is being challenged in whole or in part; 3. the grounds of appeal; and 4. the signature of the appellant.” “In appeal proceedings, the provisions of section 108 of this Act concerning the amendment or perfection of incomplete pleadings are not applicable. ...” “An out-of-time, incomplete or inadmissible appeal shall be rejected by order of the presiding judge of the court of first instance without a hearing. ... An appeal is incomplete if it does not contain the elements referred to in the first and fourth points of section 335 of this Act. ...” “When the case file for the appeal arrives at the court of second instance, the reporting judge shall decide whether the appeal is ... complete ... An incomplete ... appeal shall be rejected by order of the reporting judge, if the presiding judge of the panel of the court of first instance has not already done so (section 343). ...” “An appeal on points of law may be lodged against a final judgment of a court of second instance within thirty days of service of a transcript of the judgment (in the case of a statutorily permitted appeal), or within fifteen days of service of a Supreme Court decision granting leave to appeal (in cases of leave to appeal). An appeal on points of law shall be permitted if the value of the subject of the part of the final judgment which is in issue exceeds EUR 40,000 (statutorily permitted appeal). If an appeal on points of law is not permitted under the provisions of the preceding subsection, it may only be lodged if leave to appeal is granted by the court under section 367.a of this Act. ...” “An appeal on points of law may be lodged: 1. on the grounds of a violation of the essential requirements of civil procedure referred to in the second subsection of section 339 of the present Act, except where the violation concerns an issue of territorial jurisdiction ... or arbitration agreement ..., or if the judge of the court of first instance has given a judgment without hearing the case ..., or if the court has adjudicated upon a claim which is subject to another action which is pending ..., or if the public has been wrongfully excluded from the substantive hearing ...; 2. on the grounds of a violation of the essential requirements of civil procedure referred to in the first paragraph of section 339 of this Act in the proceedings before the court of second instance; or 3. on the grounds of a violation of substantive law. ... An appeal on points of law may not be lodged on the grounds of erroneous or incomplete determination of the facts. ...” “If not otherwise provided for in sections 367-382, the provisions of this Act concerning appeals against judgments (sections ... 335, 336) ... shall be applicable mutatis mutandis to proceedings concerning appeals on points of law.”