FIRST SECTION

DECISION

Application no . 51802/09 Davor GJURAÅ IN against Croatia

The European Court of Human Rights (First Section), sitting on 19 June 2012 as a Chamber composed of:

Anatoly Kovler , President, Nina Vajić , Peer Lorenzen , Elisabeth Steiner , Khanlar Hajiyev , Linos-Alexandre Sicilianos , Erik Møse , judges, and Søren Nielsen , Section Registrar ,

Having regard to the above application lodged on 7 September 2009,

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

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Davor Gjurašin , is a Croatian national who was born in 1957 and lives in Zagreb . The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik .

A. The circumstances of the case

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

3. On 28 July 2004 the Zagreb Municipal State Attorney ’ s Office ( Općinsko državno odvjetništvo u Zagrebu ) indicted the applicant in the Zagreb Municipal Criminal Court ( Općinski kazneni sud u Zagrebu ) on charges of failing to pay child maintenance for his two children.

4. At a hearing on 30 November 2004 the applicant pleaded not guilty and decided to remain silent and to not give any evidence. The judge conducting the proceedings informed the applicant of his obligation to inform the court if he were to move or change his place of residence. She also informed the applicant of the legal consequences if he failed to comply with this obligation, one of which was that the judgment could be placed on the court ’ s public noticeboard.

5. On 25 May 2006 the Zagreb Municipal Criminal Court issued a judgment by which it found the applicant guilty of failing to pay child maintenance for one child but acquitted him of the same charge in respect of the other child. The applicant was sentenced to ten months ’ imprisonment, suspended for three years on the condition that he compensate the injured party by paying the maintenance due within six months. The judge conducting the proceedings publicly pronounced the judgment and informed the applicant of his right to appeal within eight days after he received a written copy of the judgment.

6. On 4 January 2007 the Zagreb Municipal Criminal Court ordered that the judgment be served on the parties.

7. On 24 January 2007 the Zagreb Municipal Criminal Court received a notice from the post office informing that court that the service of the judgment on the applicant had been unsuccessful. Service had been attempted on 10 January, 11 January and 12 January 2007 but nobody had answered at the applicant ’ s address. Two notices of attempted delivery had also been left for the applicant but he had never contacted the post office.

8. On 25 January 2007 the Zagreb Municipal Criminal Court ordered that service of the judgment was to be executed through the court ’ s delivery service.

9. On 13 February 2007 the applicant ’ s children lodged an appeal with the Zagreb County Court ( Županijski sud u Zagrebu ) against the first-instance judgment.

10. On 7 March 2007 a notice from the court ’ s delivery service was submitted to the judge conducting the proceedings informing her that service of the judgment on the applicant had remained unsuccessful. Service had been attempted on 1 February, 13 February, 23 February and 1 March 2007 but without success. The applicant ’ s address had been visited in the morning and the evening and notices of attempted delivery had also been left for him but it had been impossible to serve the judgment on him.

11. The judge conducting the proceedings ordered that the judgment be placed on the court ’ s public noticeboard. On an unspecified date in mid-March 2007 the judgment was placed on the public noticeboard and after the expiry of fifteen days it was presumed that the judgment had been served on the applicant.

12. On 10 April 2007 the applicant was served with the appeal lodged by his children against the judgment of the Zagreb Municipal Criminal Court.

13. On 20 April 2007 the applicant submitted written observations in respect of the appeal.

14. On 17 September 2007 the Zagreb County Court dismissed the appeal by the applicant ’ s children and upheld the first-instance judgment, as a result of which it became final.

15. On 5 October 2007 the judgment of the Zagreb County Court was served on the applicant. On the same date the applicant consulted and copied the case file of the Zagreb Municipal Criminal Court.

16. On 3 December 2008 the Zagreb Municipal Criminal Court opened proceedings for revocation of the applicant ’ s suspended sentence because he had failed to comply with the conditions set out in the judgment.

17. On 2 March 2009 the applicant lodged a request with the Zagreb Municipal Criminal Court asking that the stamped certificate stating that the judgment had become final be revoked on the grounds that the judgment had never been served on him. On an unspecified date he also lodged a request for the reopening of the proceedings, which was rejected by the Zagreb Municipal Criminal Court on 18 March 2009.

18. On 19 March 2009 the applicant lodged a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ), complaining that the Zagreb Municipal Criminal Court had never decided on his request for the stamped certificate stating that the judgment had become final to be revoked. On 23 February 2012 the Constitutional Court declared the applicant ’ s complaint inadmissible on the ground that the impugned decisions were not susceptible for the constitutional review.

B. Relevant domestic law

19. At the time, the relevant provisions of the Code of Criminal Procedure ( Zakon o kaznenom postupku , Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002 and 62/2003) provided:

Article 84

“(1) A court shall grant reinstatement to the prior state of affairs in order to file an appeal to a defendant who, for justifiable reasons, fails within a prescribed term to file an appeal against a judgment or a ruling on security or educational measures or on the confiscation of a monetary benefit, provided that the defendant submits a petition for reinstatement to the prior state of affairs within eight days following the removal of the cause of his failure to act within the term and that, at the same time as the petition, he lodges an appeal ...

(2) After a lapse of three months from the date of failure, no petition for reinstatement to the prior state of affairs may be submitted.”

Article 144

“(1) Decisions and other documents shall as a rule be served by mail. Service may also be effected by an official of the authority which has rendered the decision or directly by such authority.

...

(6) If a party has not reported a change of address to a court or if the party cannot be reached at the address that was previously given to the court or it is evident that he is evading receipt of a decision that is subject to appellate review other than a judgment imposing a sentence of imprisonment, the court shall put the decision on the court ’ s public notice board. After the lapse of the term of appeal the decision shall become final.”

Article 147

“ ...

(2) An indictment and a judgment or other decision for which the term of appeal begins to run when service occurs shall be served in person on a defendant who does not have defence counsel. Upon the defendant ’ s request, a judgment or other decision shall be served on a person designated by him.

(3) If, with the exception of a judgment referred to in paragraph 4 of this Article, a decision or an appeal by the adverse party which is served for reply cannot be served on a defendant because he has not reported a change of address or if it is evident that he is evading receipt of the decision, the court shall put the decision or the appeal on the court ’ s public noticeboard and after the lapse of fifteen days it shall be deemed duly served.

(4) If a defendant who does not have defence counsel is served with a judgment imposing a sentence of imprisonment and this judgment cannot be served at his present address, the court shall assign defence counsel to the defendant, who shall perform this duty until the new address of the defendant is determined. ... ”

Article 225

“(1) When a defendant is examined for the first time, he shall be asked for his first name and surname ... The defendant shall be instructed that he is bound to appear upon a summons and to notify the court immediately of changes of his address, as well as of any intention to change his place of residence, and shall be warned of the consequences of failure to comply.”

COMPLAINTS

20. The applicant complained under Article 6 § 1 and Article 13 of the Convention, as well as under Article 2 of Protocol No. 7 to the Convention, that the judgment adopted in the criminal proceedings against him had not been served on him and that he had not had an effective legal remedy in that respect, which had consequently deprived him of the opportunity to lodge an appeal against the judgment.

THE LAW

21. The applicant complained that he had never been served with the judgment of the Zagreb Municipal Criminal Court of 25 May 2006, that his request for the stamped certificate stating that the judgment had become final to be revoked had not been answered, and that he had not been able to lodge an appeal against the judgment. He relied on Articles 6 and 13 of the Convention and Article 2 of Protocol No. 7, the relevant part of which reads as follows:

Article 6 of the Convention

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...

... ”

Article 13 of the Convention

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Article 2 of Protocol No. 7

“1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.

... ”

22. The Government submitted that the applicant had failed to exhaust domestic remedies, as he had not asked for reinstatement of the proceedings after he had become aware of the judgment, namely, when he had lodged a response to the appeal lodged by his children. They also pointed out that the applicant had failed to lodge an appeal against the judgment once he had received it. Instead he had lodged a request for the stamped certificate stating that the judgment had become final to be revoked, which was not a legal remedy under the Code of Criminal Procedure. The Government also argued that the applicant had failed to lodge the application within the six-month time-limit and that his complaints were ill-founded.

23. The applicant argued that he had exhausted domestic remedies when he had sought to have the stamped certificate stating that the judgment had become final revoked. He argued that the notices of attempted delivery were untrue, that the transcript of the first-instance court ’ s proceedings was false and that he had never examined and copied the case file. The applicant also pointed out that the Zagreb Municipal Criminal Court had never decided on his request for the stamped certificate stating that the judgment had become final to be revoked and that he had not had any opportunity to appeal against the judgment.

24. The Court finds that it is not necessary to address all of the Government ’ s preliminary objections, as the application is in any event inadmissible for the following reasons .

25. The Court reiterates that a failure of service may, under certain circumstances, give rise to an issue under Article 6 of the Convention, in so far as the right of access to court is concerned (see Darnay v. Hungary , no. 36524/97, Commission decision of 16 April 1998, and Hennings v. Germany , 16 December 1992, § 26, Series A no. 251 ‑ A ). In such cases, in order to establish whether the right of access to court was upheld, the Court or the former Commission examined whether the applicants had taken the necessary measures to safeguard their right of access to court (see, for example, Hennings , cited above ; 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.

26. The Court firstly observes that the applicant effectively participated in the criminal proceedings against him before the Zagreb Municipal Criminal Court. At his first appearance before that court he was instructed that he was obliged to inform the court of any changes of his place of residence and he was also informed of all of the potential consequences if he failed to do so, including the possibility that the judgment may be placed on the court ’ s public noticeboard. The Court also observes that at the hearing at which the Zagreb Municipal Criminal Court adopted its judgment, the applicant was informed of his right to appeal against that judgment. In the Court ’ s view, there is no reason to doubt the authenticity and reliability of the transcript of the Zagreb Municipal Criminal Court ’ s proceedings, as the applicant failed to substantiate in any respect his assertions that this transcript was false.

27. The Court further notes that seven attempts to serve the Zagreb Municipal Criminal Court ’ s judgment on the applicant failed because the applicant could not be reached at the address which he had provided to that court. Three attempts of service, on 10 January, 11 January and 12 January 2007, by the post office were unsuccessful and four attempts of service by the court ’ s delivery service, on 1 February, 13 February, 23 February and 1 March 2007, were also without success. Moreover, the notices left for the applicant that a delivery had been attempted also remained without any response from the applicant. The Court notes that the applicant failed to substantiate his assertions that the notices left by the delivery services were untrue, as both the regular postal service and the court ’ s delivery service encountered the same difficulties when trying to serve the judgment on the applicant and recorded them in their notices.

28. The Court also notes that it is not in dispute between the parties that on 10 April 2007 the applicant was served with the appeal lodged by his children against the judgment of the Zagreb Municipal Criminal Court and that on 20 April 2007 the applicant submitted written observations in respect of that appeal. Having in mind that the applicant was present at the hearing on 25 May 2006 when the first-instance judgment was publicly pronounced and the fact that on 20 April 2007 he submitted observations on the appeal lodged by his children, the Court considers that the applicant must have been aware at the latest on that date that the first-instance judgment had been served on the parties and thus was expected to take necessary steps to obtain relevant information about the service of the judgment (see Hennings , cited above, § 26) .

29. The Court notes that at that point the applicant could have asked for reinstatement of the proceedings pursuant to Article 84 of the Code of Criminal Procedure, but instead he remained passive for almost two years – which resulted in him losing the ability to ask for reinstatement of the proceedings. In this respect, the Court considers that the domestic authorities cannot be held responsible for the applicant ’ s failure to take the necessary steps to ensure receipt of his mail, with the result that he was later unable to comply with the time-limits laid down under domestic law ( ibid.). Such a lack of diligence on the applicant ’ s part is compounded by the fact that the applicant also consulted the case file on 5 October 2007 but then remained passive until 2 March 2009, when he sought to have the stamped certificate stating that the judgment had become final revoked.

30. Therefore, having in mind the measures taken by the domestic authorities to serve the judgment on the applicant and the obvious lack of diligence on the applicant ’ s part to receive that judgment (see Vojta v. the Czech Republic ( dec .), no. 25126/06, 14 June 2006) , it cannot be said that the applicant was denied of any of the rights he relied upon.

31. It follows that this complaint must be dismissed as manifestly ill-founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Søren Nielsen Anatoly Kovler Registrar President