CASE OF GASPARI v. SLOVENIA
Remainder inadmissible;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
5. The applicant was born in 1947 and lives in Ljubljana. 6. On 6 January 1992 the applicant and her then husband F.B., who had decided to get divorced, entered into an agreement on the partition of their joint property. The agreement stipulated, inter alia, that F.B. would transfer to her, within one year, the ownership of premises on Zaloška Street, unless they agreed on a different location. The agreement further stipulated that if the stated obligations were not fulfilled, the applicant could terminate the agreement and claim a share of the joint property in accordance with the relevant domestic law. On 24 April 1992 the applicant and F.B. divorced. 7. Subsequently, F.B. did not transfer the ownership of premises on Zaloška Street to the applicant. However, on 24 September 1992 the applicant accepted the keys of certain premises on Trubarjeva Street. After F.B. had bought the latter premises, on 6 November 1992, he offered the applicant the possibility of signing a supplement to the agreement. According to the supplement, the applicant would receive forty per cent of the premises on Trubarjeva Street as a form of alternative performance of the relevant part of the agreement. The applicant refused to sign the supplement to the agreement. 8. On 3 May 1993 she instituted proceedings in the Ljubljana Basic Court (Temeljno sodišče v Ljublani) seeking termination of the agreement and partition of the joint property. 9. On 16 November 1993 F.B. died and his heirs, J.B.J, B.E.B. and M.B., took over his capacity in the proceedings. 10. On 9 November 1995 the court issued a partial judgment terminating the relevant agreement and rejecting the counter-claim lodged by J.B.J, B.E.B. and M.B (“the heirs”). 11. On 11 April 1996 the Ljubljana Higher Court (Višje sodišče v Ljubljani) quashed the first-instance court’s judgment and remitted the case for re-examination. The applicant then challenged that decision in an appeal on points of law, but that was rejected by the Supreme Court on 22 May 1997. 12. In the re-examination proceedings, on 14 September 1998, the (renamed) Ljubljana District Court (Okrožno sodišče v Ljubljani) issued a new judgment rejecting the applicant’s claim. The court considered that the relevant agreement was not a “fixed contract” (fiksna pogodba) which could be terminated without allowing additional time for its performance. Moreover, from F.B.’s conduct it had not been apparent that he was not going to honour his obligation. The applicant should therefore have offered an additional time-limit to F.B. In addition, the court found that F.B. had in large part fulfilled his obligations and that the applicant, by accepting the keys to the premises on Trubarjeva Street, had agreed to an alternative performance of the agreement. 13. On 31 March 1999 the Ljubljana Higher Court upheld the first-instance court’s judgment. It, however, amended certain parts concerning the payment of costs and expenses. 14. On 13 May 1999 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče). She supplemented the appeal on 25 May 1999. 15. On 19 April 2000 the Supreme Court upheld the applicant’s appeal to the extent that it concerned the application of law by the lower courts, but dismissed the remainder. The Supreme Court considered that the interpretation of the relevant agreement concerned the application of the law. It then concluded that F.B. had not fulfilled his obligations by offering the applicant only a share of the premises on Trubarjeva Street. In addition, the applicant had not consented to the alternative performance nor had F.B. showed an intention to fulfil his obligations. The Supreme Court consequently varied the lower courts’ judgments and terminated the relevant agreement. As far as the partition of the joint property was concerned, the Supreme Court remitted the case to the first-instance court. 16. Two of the heirs (J.B.J. and B.E.B.) lodged a constitutional appeal complaining, inter alia, of the arbitrariness of the Supreme Court’s judgment and of a breach of the provision guaranteeing equal protection of rights (Article 22 of the Constitution). On 30 January 2001 the Constitutional Court (Ustavno sodišče) accepted the appeal for consideration, which is equivalent to declaring it admissible. On 10 May 2001 it upheld the appeal by five votes to three, quashed the Supreme Court’s judgment and remitted the case to the Supreme Court for re-examination (decision no. Up-232/00). It would appear that the applicant was informed of that decision (see paragraph 22 below), but there is no document in the case file certifying as to when. 17. The Constitutional Court found that the Supreme Court’s decision was based on the interpretation of the parties’ motivation and of the content of the agreement. In its view, such interpretation constituted an interference with the facts established by the lower courts. However, according to the domestic legislation, the Supreme Court, when deciding on an appeal on points of law, had jurisdiction only for the determination of legal issues. The Constitutional Court found that the Supreme Court’s decision was obviously erroneous and therefore arbitrary. This, and the fact that the Supreme Court had exceeded its jurisdiction, represented an interference with the appellants’ right to equal protection of rights. 18. In the re-examination proceedings, the Supreme Court, on 17 December 2001, again varied the lower courts’ judgments by terminating the relevant agreement and remitting the case to the first-instance court to determine the partition of the joint property. 19. After accepting for consideration the relevant part of the heirs’ further constitutional appeal on 17 June 2002, the Constitutional Court, on 12 December 2002, quashed the Supreme Court’s judgment, dismissed the applicant’s appeal on points of law and upheld the Ljubljana Higher Court’s judgment of 31 March 1999. The decision was adopted by six votes to two (decision no. Up-140/02). 20. The Constitutional Court found that the Supreme Court had again dealt with questions of fact – a matter over which it had no jurisdiction; that it had failed to provide reasons for its decision, which was different from previous decisions adopted in other cases concerning the same issue; and that it had disregarded the instructions given by the Constitutional Court. The latter therefore again found a violation of the right to equal protection of rights. Using the special power afforded in section 60 of the Constitutional Court Act and because of the already lengthy duration of the proceedings, the Constitutional Court, in order to secure effective judicial protection, decided on the merits of the case itself and upheld the Higher Court’s judgment of 31 March 1999. 21. The Constitutional Court’s decisions of 10 May 2001 and 12 December 2002 noted, under paragraph 3, as follows: “in accordance with the provisions of sections 6 and 56 of the Constitutional Court Act, the Constitutional Court served the constitutional appeal on the Supreme Court, on the opposite party (plaintiff) to the proceedings [the applicant] and on the third defendant in the proceedings. None of them replied to the constitutional appeal.” 22. According to the applicant, she had not received a copy of the first constitutional appeal. On 4 July 2001, a note was prepared by an official in this connection on the Constitutional Court’s premises. The note, which appeared to be part of the file no. Up 232/00, mentioned that the constitutional appeal and admissibility decision of 30 January 2001 had been handed over to the applicant. 23. In addition, the applicant submitted to the Court copies of receipts relating to the attempt to serve the process by the Constitutional Court, concerning the file no. Up 140/02. It would appear that this process included a copy of the second constitutional appeal, the admissibility decision and a letter informing the applicant that the constitutional appeal had been accepted for consideration and that that the applicant should submit her comments within eight days. It transpires from the receipts that the process was sent by the Constitutional Court on 21 June 2002 but had not been served on the applicant. The address referred to in the receipts and the letter is different from the applicant’s address as mentioned in her claim and in the decisions issued in the domestic proceedings, including in the last Supreme Court judgment. According to the applicant, the address used to serve the process was actually the address of one of the other parties to the proceedings. 24. The Constitutional Court Act (Zakon o Ustavnem sodišču, Official Gazette no. 15/94) provides, in so far as relevant, as follows: “For procedural questions which are not governed by this Act, the Constitutional Court shall apply the relevant provisions of legislation concerning [ordinary] court proceedings, taking into consideration the nature of the matter.” “After being accepted, a constitutional appeal shall be referred to the body which issued the decision against which the constitutional appeal is lodged, in order for that body to reply to the constitutional appeal within a given time-limit.” “1. If the Constitutional Court quashes a decision, it may also decide on a relevant right or freedom if such procedure is necessary in order to bring to an end consequences that have already occurred on the basis of the quashed decision, or if so required by the nature of the constitutional right or freedom, and provided that a decision can be given on the basis of information in the file. ....” 25. On 30 May 2007 the Slovenian Parliament adopted amendments to the Constitutional Court Act (Official Gazette no. 51/2007). Section 56 was amended to read: “1. If the Constitutional Court accepts a constitutional appeal for consideration, it shall inform the body which issued the decision against which the constitutional appeal is lodged accordingly. A Constitutional Court judge .... can request the body ... to submit information or an explanation necessary for the decision on the constitutional appeal. 2. In the above circumstances, the constitutional appeal should be sent to the persons who participated in the proceedings leading to the decision challenged in the appeal if that decision concerned one of their rights, obligations or legal interests, so that they can reply to it within a certain time-limit.” 26. Paragraph 3 of section 370 of the Civil Procedure Act (Zakon o pravdnem postopku, Official Gazette no. 26/1999, in force since 14 July 1999) provides that an appeal on points of law is not allowed in respect of an alleged erroneous or insufficient establishment of the facts. 27. Under section 394 of the Civil Procedure Act, proceedings which have been finally concluded by a court decision (pravnomočno končan) can be reopened at the request of a party to the proceedings, if, inter alia, that party did not have an opportunity to give testimony in court, due to some illegality, in particular lack of service. The final conclusion of the proceedings in principle refers to the final decision against which no ordinary appeal lies; that would normally be a decision of a first-instance court, or if an appeal has been lodged, that of a second-instance court. 28. Section 142 of the same act provides that certain documents (such as statements of claim, notices of extraordinary remedies or judgments which can be appealed against) should be served on parties in person. If the party is not found at his or her address, the server should leave a note informing him or her of a new date on which he or she is to be served with the process. If the party is not found at his or her address on that date, the server will serve the process on, inter alia, an adult family member, who will be required to accept the process. If that is not possible, the server will return the process to the court or leave it at a local post office. The server will leave a note at the party’s address informing him or her of the process and the fifteen-day deadline for its collection. The note shall also state the reasons why the process was left at the post office or the court and the date of that event. Under the above conditions and, as the case may be, after the expiry of the deadline, the process will be considered to have been effectively served on the addressee (sections 140-142). 29. The Government submitted six decisions by which the Constitutional Court had decided on requests for reopening of the proceedings before it. Two of them (decision no. U-I-18/99 of 4 October 2001 and decision no. U-I-217/02 of 17 March 2005) concern proceedings by which the constitutionality and legality of a statutory act were being challenged (postopek za oceno ustavnosti in zakonitosti). In both of them, the Constitutional Court found that neither the Constitutional Court Act nor any other legislation provided for the possibility of reopening such proceedings. 30. In the oldest of the remaining four decisions concerning proceedings in which a constitutional appeal had been dismissed (decision no. Up-95/95 of 26 February 1998), the panel of three members of the Constitutional Court (that is a formation in which a decision on admissibility is normally taken) dismissed the request for reopening. It explained that the appellant had not invoked any of the grounds which would justify reopening under the relevant provision of the Civil Procedure Act and section 6 of the Constitutional Court Act. Likewise, in all the remaining decisions (decision no. Up-189/01 of 21 November 2001, decision no. Up-524/01 of 13 January 2003 and decision no. Up-550/02 of 7 March 2006) the Constitutional Court found that the appellants had not demonstrated any grounds which could justify reopening under section 6 of the Constitutional Court Act and the relevant provisions of the legislation concerning court proceedings. It therefore rejected the requests, but added that this decision was taken “without considering the issue whether the reopening of the proceedings before the Constitutional Court was actually possible”.