CASE OF TENCE v. SLOVENIA
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano
5. The applicant was born in 1950 and lives in Nova Gorica. 6 7. On 29 October 2002 the applicant lodged a civil action against company X, her former employer, seeking payment of 3,285.89 euros (EUR) and statutory default interest in respect of contributions made by her into the employee share scheme (trajne vloge delavca). On 24 May 2011 the Nova Gorica Local Court (“the Local Court”) dismissed her claim and on 13 June 2011 the judgment was served on her lawyer. 8. The time-limit for appealing against the judgment expired at midnight on 28 June 2011. At 6.54 p.m. on that day the applicant’s lawyer sent a document of six pages by fax to the Local Court. The next day, after the expiry of the time-limit, the applicant’s lawyer sent the appeal against the first-instance judgment, consisting of six pages, by registered mail. On 12 July 2011 the Local Court rejected the appeal as out of time. It held that the applicant had lodged her appeal on 29 June 2011, which was after the time-limit. 9. On 30 July 2011 the applicant appealed against this decision, arguing that she had lodged her appeal by fax within the prescribed period. In this connection, she submitted a fax confirmation page according to which on 28 June 2011 at 6.54 p.m. her lawyer had sent a six-page document to the Local Court’s fax number. 10. On 12 August 2011, at the request of the Koper Higher Court (“the Higher Court”), the competent judge of the Local Court enquired about the faxes received by the registry of that court on 28 June 2011 from 6 to 7 p.m. The confirmation page showed that the Local Court had received a document of six pages from the applicant’s lawyer at 6.59 p.m. On 24 August 2011 the competent judge was informed that the fax from the applicant’s lawyer had been saved in the fax machine’s memory, but had not been printed out. Subsequently, this information was sent to the Higher Court. 11. On 14 November 2011 the Higher Court dismissed the appeal, noting that the Local Court had received the documentation that had been lodged by mail only on 29 June 2011. It held that the appeal allegedly lodged on 28 June 2011 by fax would have been regarded as within the prescribed time-limit only if it had been delivered to the court before its expiry. The burden of proof that the appeal had been lodged in due time was on the applicant. The Higher Court acknowledged that the confirmation page submitted by the applicant indeed showed that on 28 June 2011 the applicant had sent a document of six pages by fax. However, the confirmation page made no reference to the type of document sent, its content and to which case it referred. 12. On 5 June 2012 the applicant lodged an appeal on points of law. She pointed out that section 112 of the Civil Procedure Act allowed the submission of an application by fax and that according to the existing case-law of the Supreme Court an application was deemed to be submitted in due time if delivered to the competent court before the expiry of the time-limit regardless of how it was subsequently handled by the court, which was a matter of the court’s internal organisation. The applicant submitted that the Local Court had received her appeal by fax in due time but then most probably failed to print it out and the document had automatically been deleted from the fax machine’s memory. Hence, she argued that the date when the fax had been sent should be considered as the date the appeal had been lodged and that she should not be made to bear the burden of proof in a case where the document had not been printed out by the court. She further emphasised that a timely delivery should not have any negative consequences for the parties to the proceedings. Furthermore, as regards her failure to prove the content of the fax that had been sent to the Local Court on 28 June 2011, the applicant submitted: firstly, that the confirmation page from her lawyer’s fax machine had showed the date of the transmission, the number of pages sent and the time it had taken to deliver the document to the receiving machine; secondly, on the following day, 29 June 2011, the applicant had lodged the relevant document by registered mail which, according to her, proved that the document in question was in fact the appeal against the judgment of 24 May 2011. The applicant added that, according to information given to her by a telecommunications company and a fax-machine manufacturer, it was not possible to prove the content of a document sent by fax as those transmissions were encrypted. 13. On 20 June 2013 the Supreme Court dismissed the applicant’s appeal on points of law. It referred to its decision of 4 April 2013 (II Ips 603/2009 and II Ips 718/2009) in which it had held that proof that a fax was sent did not necessarily mean proof of receipt of the document. In the Supreme Court’s opinion, there was a possibility that the court would not receive the relevant document in due time because of faults in the telecommunications network or similar technical reasons (lack of paper, an empty ink cartridge, the machine shutting down, and so on). Such a risk was borne by the applicant in the same manner as if the document were sent by regular – as opposed to registered – mail, whereby the risk of late receipt of a motion was borne by the sender. Since the applicant had failed to prove the content of the document sent by fax on 28 June 2011, the Supreme Court confirmed that the Higher Court had correctly taken into consideration only the appeal sent by registered post the next day. 14. On 18 October 2013 the applicant lodged a constitutional complaint in which she reiterated the arguments raised before the Supreme Court. 15. On 11 November 2013 the Constitutional Court dismissed the constitutional complaint for lack of significant disadvantage and for not raising an important constitutional question. On 15 November 2013 this decision was served on the applicant. 16. Meanwhile, on an unspecified date, the applicant requested that the Local Court reinstate her case. On 7 February 2012 the Local Court dismissed the applicant’s request. The applicant lodged an appeal which she subsequently withdrew.