Jelena VOGTMANN v Croatia - 10543/07 [2010] ECHR 1083 (17 June 2010)

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The European Court of Human Rights (First Section), sitting on 17 June 2010 as a Chamber composed of:

Christos Rozakis, President,
Nina Vajić,
Khanlar Hajiyev,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

The applicant, Mrs Jelena Vogtmann, is a German national who was born in 1981 and lives in Uttenreuth, Germany. She was represented before the Court by Mrs G. Pavlović, an advocate practising in Nürnberg. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. StaZnik. The Government of Germany, having been informed of their right to intervene (Article 36 § 1 of the Convention and Rule 44 § 2 (a) of the Rules of Court), did not avail themselves of this right.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 22 January 1993 the applicant's summer house was blown up by unknown perpetrators.

The applicant claimed that in 1996 her grandfather V.C., who had lived in Šibenik (Croatia) and was a former judge of the second-instance court in that town, had brought a civil action on her behalf against the State seeking damages for the destruction of her summer house by an explosive device. He had done so by sending the statement of claim (tuZba) by regular mail to the Biograd-na-Moru Municipal Court (Općinski sud u Biogradu na Moru). As no procedural steps were taken following the applicant's action, her grandfather, as her representative, enquired with the court over the telephone and in person as to the reasons for their inactivity. He was informed that the applicant's action had never been received by the court and that therefore no proceedings had been instituted.

The applicant further submitted that on 10 January 1997 her grandfather had resubmitted her civil action, this time sending the statement of claim to the Biograd-na-Moru Municipal Court by registered mail. As again no procedural steps were taken following her action, her grandfather, on numerous occasions, enquired with the court over the telephone and in person as to the state of the proceedings. This time he did not obtain any information on the case. As proof of her allegations the applicant submitted a copy of her civil action dated 10 January 1997 and a receipt of the Šibenik post office certifying that on the same date a postal item (pošiljka) had been sent by registered mail to the Biograd-na-Moru Municipal Court.

The Government submitted that the applicant had not presented any evidence that she had ever brought an action before the Biograd-na-Moru Municipal Court or that her grandfather had ever made enquiries as to the status of her case with that court.

2. The proceedings before the Constitutional Court following the applicant's complaint about the length of the proceedings

On 6 March 2003 the applicant lodged a constitutional complaint under section 63 of the Constitutional Court Act complaining about the length of the proceedings. On 18 June 2004 the Constitutional Court (Ustavni sud Republike Hrvatske) declared the applicant's constitutional complaint inadmissible. On the basis of a report submitted by the Biograd-na-Moru Municipal Court indicating that its docket contained no record of the civil proceedings instituted by the applicant's action, the Constitutional Court concluded that she had not instituted any civil proceedings with the Biograd-na-Moru Municipal Court.

The applicant then, on 7 October 2004, lodged a request for the reconstruction of the case file with the Biograd-na-Moru Municipal Court. Together with the request she also submitted a copy of her civil action dated 10 January 1997 and the receipt from the Šibenik post office certifying that on the same date a postal item had been sent by registered mail to the Biograd-na-Moru Municipal Court.

On 25 May 2005 the Biograd-na-Moru Municipal Court dismissed the applicant's request on the ground that the applicant's action had never been received by that court. On 3 April 2006 the Zadar County Court (Zupanijski sud u Zadru) dismissed the applicant's appeal and upheld the first-instance decision. In so doing, it held as follows:

“From the stamped receipt issued by the Croatian Post, it follows that on 10 January 1997 a certain postal item was submitted to the post office in Šibenik for the Biograd-na-Moru Municipal Court. However, nothing shows that this item, whatever it might have related to, arrived or was received by the Biograd-na-Moru Municipal Court. In any event, on the reverse of the above-mentioned receipt, its issuer gives certain notifications to the sender for reference in the event that the item does not reach the addressee, which indicates the objective possibility that a postal item may not reach the addressee to whom it was sent.

Rule 102 of the Court Rules provides for the possibility to reconstruct a case file if a particular case file or part of it has been lost, damaged or destroyed. For something at a court to be lost, damaged or destroyed, it must first have been received by the court. In the event that a court has not received a certain submission, it cannot proceed in accordance with the above-mentioned provision, and the sender of the submission, if he or she does not have proof that the submission was received by the court, should in fact address the one to whom the submission was submitted, and not the one to whom it was sent.”

The applicant then lodged a regular constitutional complaint under section 62 of the Constitutional Court Act challenging the second-instance decision. On 28 September 2006 the Constitutional Court declared the applicant's constitutional complaint inadmissible and served its decision on her representative on 11 October 2006. It held that the contested decision did not concern the merits of the case and as such was not subject to constitutional review.

The relevant part of the 1999 Constitutional Act on the Constitutional Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 99/1999 of 29 September 1999 – “the Constitutional Court Act”), as amended by the 2002 Amendments (Ustavni zakon o izmjenama i dopunama Ustavnog zakona o Ustavnom sudu Republike Hrvatske, Official Gazette of the Republic of Croatia no. 29/2002 of 22 March 2002), which entered into force on 15 March 2002, reads as follows:

“1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the decision of a state authority, local or regional self-government, or a legal person invested with public authority, on his or her rights or obligations, or as regards suspicion or accusation of a criminal offence, has violated his or her human rights or fundamental freedoms, or right to local or regional self-government, guaranteed by the Constitution (“constitutional right”)...

2. If another legal remedy is available in respect of the violation of the constitutional rights [complained of], the constitutional complaint may be lodged only after this remedy has been exhausted.

3. In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law [revizija] are available, remedies shall be considered exhausted only after the decision on these legal remedies has been given.”

“(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the individual's rights and obligations or a criminal charge against him or her within a reasonable time ...

(2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the competent court must decide the case on the merits...

(3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.”

The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980, 69/1982, 58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991, and Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 58/1993, 112/1999, 88/2001, 117/2003, 88/2005, 2/2007, 84/2008 and 123/2008) as in force at the material time provided as follows:

“(1) When a submission must be made within a certain time-limit, it shall be considered to have been submitted in time if it was submitted to the competent court before the expiration of that time-limit.

(2) If a submission was posted by registered mail or by telegraph, the date on which it was submitted to the post office shall be considered to be the date of its submission to the court to which it was addressed.

(8) The provisions of paragraphs 1 to 7 of this section shall also apply to the time-limits [fixed by substantive law] within which, according to special legislation, actions must be brought [peremptory time-limits], as well as to the statutory limitation periods.”

The relevant provisions of the Court Rules (Sudski poslovnik, Official Gazette nos. 80/1997, 20/1998, 118/2001, 49/2003, 32/2004, 9/2006, 116/2008, 125/2008 and 146/2008), which is a piece of subordinate legislation regulating the internal operation of courts, read as follows:

“(1) If certain case files or parts thereof are lost, damaged or destroyed, proceedings for reconstruction of a case file or particular submissions (reconstruction) shall be instituted when necessary.

(2) Proceedings for reconstruction of a case file or particular submissions in respect of pending cases shall be instituted by a decision of the president of the court sua sponte.

(3) Proceedings for reconstruction of a case file in respect of closed cases shall be instituted if a justified need to do so exists. A decision in this respect shall be given by the president of the court sua sponte, or at the request of a party or the state attorney ....

(4) A decision dismissing a request for reconstruction of a case file shall be served on the applicant who may lodge an appeal against that decision to the immediately higher authority of court administration.

(6) Proceedings for reconstruction of a case file shall not be carried out if the time period for keeping the case files in question, under the provisions of the Court Rules, has already lapsed.”

“(1) Proceedings for reconstruction of a case file shall be carried out by the court at which the case file is kept or to which it belonged.

(2) The case file shall be reconstructed on the basis of a decision allowing the institution of proceedings for reconstruction. By this decision the proceedings shall be instituted on the basis of which, after its completion, a new case file or a submission shall be established in lieu of the missing, damaged or destroyed case file. The new case file shall bear the same designation as the [original] case file or submission.

(3) Reconstruction of the case file in respect of pending cases shall be carried out by the judge to whom the case has been assigned ...

(4) Reconstruction of the case file in respect of closed cases shall be carried out by the judge designated by the president of the court in the decision on the institution of proceedings for reconstruction of the case file.”

“(1) During the reconstruction of a case file, only those parts or particular submissions which are important in terms of the reasons for which the proceedings for reconstruction of a case file had been allowed shall be reconstructed.

(2) The reconstruction of a case file shall be based on the copies of the missing, damaged or destroyed submissions which are at the disposal of the parties or the court, the data from registers and auxiliary books, and, when necessary, also on the concurring statements of the parties or their representatives, witnesses, expert witnesses or other persons who participated in the proceedings. Only those [procedural] steps for which there are no data or in respect of which there are no concurring statements of the persons mentioned above shall be repeated.

(3) The costs incurred by the reconstruction of a case file or submissions shall be paid out of the court budget.”

The relevant part of the Postal Services Act (Zakon o pošti, Official Gazette, no. 53/94) read as follows:

”(1) If the sender or other authorised person deems that a postal item has not been delivered to the recipient ... he or she may lodge a written complaint with the Croatian Post within three months from the date that item was submitted.

(2) The complaint referred to in paragraph 1 of this section shall be lodged with the office of the Croatian Post to which the item was submitted, and exceptionally to any other office of the Croatian Post.

(4) The Croatian Post is bound to reply whether it deems the complaint to be well founded within thirty days from the date it on which it was lodged.

(5) The procedure for deciding complaints shall be regulated by the Rules on [General Conditions for Provision of Postal] Services.”

“Within Croatia, the Croatian Post shall be liable for the loss of or damage to a postal item ... within the limits established in this Act.”

“The Croatian Post shall be bound to pay damages to the sender or other authorised person:

- for the loss ... of a letter posted by registered mail ... of the equivalent in the domestic currency of 60 German marks,

“(2) The Croatian Post shall not be liable for lost profit or actual damage sustained by the loss ... of a postal item ...

- where a postal item was lost ... owing to causes which could not have been foreseen, avoided or averted (force majeure),

- where the sender, recipient or other authorised person has not lodged a complaint within the time-limit set forth in section 32 of this Act, or has not lodged a claim for compensation within the time-limit set forth in sections 40, 41 and 42 of this Act.

“(1) The user of [postal] services or other authorised person may enforce his or her claim for damages or other claims arising out of the contract to provide [postal] services, by submitting a written request to the Croatian Post in a manner provided for in the Rules on [General Conditions for Provision of Postal] Services, or by bringing an action before a court if the Croatian Post does not satisfy the claim within thirty days of the submission of the request.

(2) The Croatian Post shall pay the default interest on [the principal amount of] the claim of the user of the services or other authorised person, running from the submission of the request referred to in paragraph 1 of this section.”

“ ... [C]laims of users of [postal] services against the Croatian Post shall lapse ... after one year unless this Act provides otherwise.”

“(1) A limitation period shall stop running when a written request is submitted to the Croatian Post, and shall continue running when the user of [postal] services or other authorised person receives a written answer to that request ...

(2) A limitation period shall not lapse before the expiry of the thirty-day time-limit running from the date the answer from the Croatian Post was received.

(3) A subsequent request concerning the same matter shall not interrupt the running of the limitation period.”

The relevant parts of the Rules on General Conditions for Provision of Postal Services (Pravilnik o općim uvjetima za obavljanje poštanskih usluga, Official Gazette, no. 37/95) read as follows:

”If the sender or other authorised person deems that a postal item has not been delivered to the recipient ... he or she may lodge a written complaint with the Croatian Post within three months from the date that item was submitted, ....”

”(1) If the sender or other authorised person deems that a postal item has not been delivered to the recipient ... he or she may lodge a written complaint with any post office.

(2) The sender shall submit the written complaint referred to in paragraph 1 of this rule using the prescribed form (enquiry form [potraZnica]) ... The written complaint shall be accompanied by the receipt if a receipt was issued for the postal item.

(7) The Croatian Post is bound to reply whether it deems the complaint well founded within thirty days from the date on which it was lodged.”

”(1) A user of the postal services or other authorised person who wishes to obtain damages or enforce other claims in accordance with the Postal Services Act and these Rules must submit a written request to the Croatian Post.

(2) The sender shall submit the request referred to in paragraph 1 of this Rule to the post office to which the postal item was submitted ...

(3) The request for damages in respect of the loss or late delivery of a postal item must be accompanied by the enquiry form [potraZnica] ...

(4) The amount of damages referred to in paragraph 3 of this Rule is determined in the provisions of the Postal Services Act.

The applicant complained under Article 6 § 1 of the Convention of the failure of the domestic courts to institute proceedings following her action for damages.

She also complained under Article 1 of Protocol No. 1 to the Convention about the destruction of her summer house.

The applicant complained that, following her action for damages, civil proceedings were never instituted, despite the fact that she had twice sent the statement of claim to the Biograd-na-Moru Municipal Court. She relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

The Government disputed the admissibility of this complaint on two grounds. They argued that the complaint was incompatible ratione temporis with the provisions of the Convention and that the applicant had failed to exhaust domestic remedies.

The Government first submitted that this complaint was inadmissible ratione temporis because the applicant had allegedly brought her action on 10 January 1997, the date on which she had sent the statement of claim by registered mail. However, the Convention did not enter into force in respect of Croatia until 5 November 1997. Since no proceedings were ever instituted, the Government considered the application inadmissible. The subsequent use of ineffective remedies (such as a request for reconstruction of a non-existent case file) in relation to non-existent proceedings could not bring the case within the Court's temporal jurisdiction (see Pilipović v. Croatia (dec.), no. 18822/03, 12 December 2006).

The Government further argued that the applicant had not exhausted domestic remedies. In particular, they submitted that under the Postal Services Act and the Rules on General Conditions for Provision of Postal Services the sender could, within three months of submitting an item to the post, have lodged a written complaint with the Croatian Post for failure to deliver. However, the applicant had failed to exhaust this remedy.

The applicant contested the Government's view that she had not exhausted domestic remedies. She explained that she had lodged a request for reconstruction of the case file, the only possible remedy in the circumstances. As to the Government's suggestion that she should have used a complaint envisaged by the Postal Services Act and the Rules on General Conditions for Provision of Postal Services, the applicant argued that the requirement to exhaust domestic remedies under Article 35 § 1 of the Convention did not require applicants to resort to every possible remedy against any person or any institution concerning the facts complained of.

The Government first argued that the applicant had, and still has, access to a court in relation to her civil action for damages. This was because the domestic courts had not rendered any decision which would in any way have prevented the applicant from bringing a new civil action. Their decisions were limited to the fact that her civil action had never been brought.

The Government further argued that Croatian legislation did not prescribe the manner in which plaintiffs had to bring civil actions. They were free to choose between: (a) submitting a statement of claim directly to the competent court, in which case court clerks would stamp them and thus certify their receipt, or (b) sending a statement of claim by post. If a plaintiff opted to send a statement of claim by post, he or she had several types of postal services available which enabled him or her to ascertain whether the court had received it (for example, recorded delivery or acknowledgment of receipt). However, under the Postal Services Act senders had the obligation to choose the type of postal service which corresponded to the content, actual value and significance of a postal item for them.

The Government noted that in the present case the applicant claimed that on 10 January 1997 she had brought a civil action for damages by sending it by registered mail (without an acknowledgment of receipt) to the Biograd-na-Moru Municipal Court. However, while the applicant had indeed submitted a receipt certifying that on that date a postal item had been sent by registered mail to the Biograd-na-Moru Municipal Court, the Government emphasised that from that receipt it was not visible what the content of the postal item had been, who had sent it, or whether the court had received it. That receipt had only proved that an item had been sent on that day to the Biograd-na-Moru Municipal Court by an unknown sender.

The Government further argued that the Civil Procedure Act provided that parties had to use their procedural rights in good faith and that, on the other hand, the court had to prevent them from abusing their rights in the proceedings.

The Government stressed in this connection that the applicant had lodged her constitutional complaint alleging a violation of her right to a hearing within a reasonable time on 6 March 2003, that is, more than six years after she had allegedly brought her civil action. It would have been reasonable to expect, and in accordance with the principle of good faith, that, before lodging her constitutional complaint, the applicant had verified whether her action had been received by the court and the proceedings instituted, and if so, enquired about the state of the proceedings and obtained the case number. However, there was no proof that she had ever done so. In the Government's view, the applicant should have taken better care of her rights and the consequences of her negligent behaviour could not be borne by the State.

Taking into account the duty of the plaintiffs to choose the appropriate manner in which to bring their civil actions and the principle of good faith, which in the present case obliged the applicant to enquire in time whether the court had received her civil action, the Government argued that there had been no violation of Article 6 § 1 of the Convention.

The applicant reiterated that her grandfather had, on numerous occasions, enquired with the Biograd-na-Moru Municipal Court over the telephone and in person as to the state of the proceedings. Initially, he had been unable to obtain any information on the case. Only after several years had he been informed that the case file could not be found, after which the applicant had instituted the proceedings for the reconstruction of the case-file, but to no avail.

The Court reiterates that the failure of service may, under certain circumstances, give rise to an issue under Article 6 § 1 of the Convention, in so far as the right of access to a court is concerned (see Darnay v. Hungary, no. 36524/97, Commission decision of 16 April 1998). In such cases, in order to establish whether the right of access to a court was granted or denied, the Court or the former Commission examined whether the applicants had taken the necessary measures to safeguard their right of access to a court (see, for example, Hennings v. Germany, 16 December 1992, Series A no. 251 A; S.B. v. Austria, no. 17740/91, Commission decision of 12 January 1993; Salinga v. Germany, no. 22543/93, Commission decision of 7 December 1994; Darnay, cited above; and Van Harn v. Germany (dec.), no. 7557/03, 11 September 2007). The Court sees no reason to apply a different approach in the instant case.

Turning to the particular circumstances of the present case the Court notes that it concerns a situation where the applicant can prove that a certain item was sent on a certain date by registered mail to the Biograd-na-Moru Municipal Court but cannot prove that it ever reached the addressee. The Court considers that in such a situation the applicant could have instituted an enquiry procedure with the relevant post office in order to track the mail and establish whether it had been delivered to the recipient, thereby safeguarding her right of access to a court.

However, the applicant never instituted an enquiry procedure by lodging a complaint under section 32 of the Postal Services Act and Rules 84 and 86 of the Rules on General Conditions for Provision of Postal Services with a view to establishing whether the letter (allegedly containing her statement of claim) sent on 10 January 1997 by registered mail to the Biograd-na-Moru Municipal Court from the Šibenik post office ever reached that court.

Had the applicant done so and the Croatian Post been able to prove that they had delivered the letter to the Biograd-na-Moru Municipal Court, the applicant would have been able to request the reconstruction of the case file and eventually would have had her civil action examined. If that had been the case, it would not have been possible for her request for reconstruction to have been dismissed as she would have been able to prove that her action had indeed been received by the Biograd-na-Moru Municipal Court and had thus been lost by the court after delivery.

Otherwise, that is, in the event that the enquiry procedure led to the conclusion that the applicant's letter of 10 January 1997 had not been delivered to the Biograd-na-Moru Municipal Court, the applicant would – owing to the time-limit of three months for instituting such a procedure (see above under Relevant domestic law) – have quickly realised that no civil proceedings had been instituted upon her action. This information would have enabled her to swiftly resubmit her civil action, thereby remaining in compliance with the relevant statutory time-limits and thus safeguarding her right of access to a court.

The Court also notes that the applicant provided no evidence that in the period before lodging her constitutional complaint of 6 March 2003, that is, for more than six years, she had in any way enquired about, or otherwise shown any interest in her action.

In the light of the foregoing, the Court considers that the applicant did not take the necessary measures to safeguard her right of access to a court. Therefore, it cannot be said that she was denied access to a court (see, for example and mutatis mutandis, Hennings v. Germany, cited above, §§ 26-27).

It follows that this complaint is inadmissible under Article 35 § 3 as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.

In view of this conclusion, it is not necessary for the Court to examine the Government's plea of inadmissibility based on incompatibility ratione temporis and non-exhaustion of domestic remedies.

The applicant also complained about the blowing up of her summer house by unknown perpetrators. She relied on Article 1 of Protocol No. 1 to the Convention, which reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The Court notes that the event complained of occurred on 22 January 1993, whereas the Convention entered into force in respect of Croatia on 5 November 1997.

It follows that this complaint is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 thereof and must be rejected pursuant to Article 35 § 4 (see Ostojić v. Croatia (dec.), no. 16837/02, ECHR 2002 IX).

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You are here: BAILII >> Databases >> European Court of Human Rights >> Jelena VOGTMANN v Croatia - 10543/07 [2010] ECHR 1083 (17 June 2010) URL: http://www.bailii.org/eu/cases/ECHR/2010/1083.html Cite as: [2010] ECHR 1083