THIRD SECTION

DECISION

Application no . 62269/12 Katica PETROVIĆ against Serbia

The European Court of Human Rights (Third Section), sitting on 26 September 2017 as a Committee composed of:

Pere Pastor Vilanova, President, Branko Lubarda, Georgios A. Serghides, judges, and Fatoş Aracı, Deputy Section Registrar ,

Having regard to the above application lodged on 1 7 September 2012,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Katica Petrović, is a Serbian national, who was born in 1971. She was represented before the Court by Mr V. Juhas Đurić, a lawyer practising in Subotica.

A. The circumstances of the case

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

On 24 May 2006 the Subotica Municipal Court found the applicant guilty of theft and sentenced her to six months ’ imprisonment. On 30 November 2006 the Subotica District Court quashed that judgment and remitted the case to the first-instance court for a retrial. The Subotica Municipal Court rendered a new judgment on 21 December 2007, finding again the applicant guilty of theft. On 19 February 2008 the Subotica District Court quashed the judgment of 21 December 2007 and remitted the case to the first-instance court for a retrial. On 21 October 2008 the Subotica Municipal Court found the applicant guilty of theft and sentenced her to six months ’ imprisonment, as in its previous judgments. On 11 March 2009 the Subotica District Court upheld that judgment. The last judgment was served on the applicant on 26 March 2009.

On 14 April 2009 the applicant lodged an appeal on points of law ( zahtev za ispitivanje zakonitosti pravosnažne presude ). On 5 November 2009 the Supreme Court of Serbia rejected that appeal. That judgment was served on the applicant on 21 December 2009.

On 6 January 2010 the applicant lodged a constitutional appeal claiming that the criminal proceedings described above had not been fair. On 13 June 2012 the Constitutional Court rejected that complaint as out of time because it had been filed more than 30 days of delivery of the judgment of 11 March 2009. In accordance with its well-established case-law, it did not take into consideration the judgment of 5 November 2009 for the purposes of the 30 -day time-limit (see the Constitutional Court ’ s case-law below).

B. Relevant domestic law and practice

1. The Constitution of the Republic of Serbia [1]

Article 32 of the Constitution guarantees the right to a fair trial.

Article 170 of the Constitution provides:

“A constitutional appeal may be lodged against individual decisions or actions of State bodies or organisations exercising delegated public powers which violate or deny human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies for their protection have already been exhausted or have not been prescribed.”

2. The Constitutional Court Act 2007 [2]

Section 84 of that Act provides that a constitutional appeal must be filed within thirty days of delivery of the individual decision against which the appellant complains.

3. The Constitutional Court ’ s case-law

In accordance with the Constitutional Court ’ s general opinions ( stavovi ) published on 2 April 2009, a complaint concerning the fairness of criminal proceedings must be lodged no later than thirty days after ordinary remedies have been exhausted (extraordinary remedies, such as an appeal on points of law, are not taken into consideration in that regard).

COMPLAINT

The applicant complained under Article 6 of the Convention about the fairness of the criminal proceedings set out above. She further complained under Articles 6 and 13 of the Convention that the Constitutional Court had violated her “right to a court” by rejecting her complaint about the fairness of the criminal proceedings as out of time.

THE LAW

A. Article 6 of the Convention (fairness of the criminal proceedings)

The Court has held that a constitutional appeal should, in principle, be considered as an effective domestic remedy for the purposes of Article 35 § 1 of the Convention with regard to all applications against Serbia introduced as of 7 August 2008 (see Vinčić and Others v. Serbia , nos. 44698/06 and 30 others , § 51, 1 December 2009 ). It has further held that Article 35 § 1 of the Convention requires that the complaints intended to be made subsequently in Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law. Therefore, where an applicant has failed to comply with these requirements, his or her application should in principle be declared inadmissible for failure to exhaust domestic remedies (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 72, 25 March 2014).

The Court sees no reason to depart from that jurisprudence in the present case. Accordingly, since the applicant failed to lodge a constitutional appeal in compliance with the formal requirements and time-limits laid down in domestic law, her application should be declared inadmissible for failure to exhaust domestic remedies under Article 35 §§ 1 and 4 of the Convention.

B. Article 6 of the Convention (access to the Constitutional Court)

In its Golder v. the United Kingdom judgment of 21 February 1975, the Court held that Article 6 “secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal” (§ 36, Series A no. 18). Subsequently, in Deweer v. Belgium it clarified that the right to a court applied also to criminal cases (judgment of 27 February 1980, Series A no. 35). It should be reiterated that Article 6 does not compel the Contracting States to set up courts of appeal, but where such courts exist the guarantees contained in Article 6 must be complied with, inter alia by ensuring effective access to these courts (see Prevljak and Others v. Bosnia and Herzegovina (dec.), no. 127/10, 10 April 2012).

This right, however, is not absolute; it is subject to limitations permitted by implication, and particularly so where the “conditions of admissibility of an appeal are concerned” (see García Manibardo v. Spain , no. 38695/97, § 36, ECHR 2000-II). That being said, these limitations must not restrict or reduce an individual ’ s access in such a way or to such an extent as to impair the very essence of the right. They will only be compatible with Article 6 if they are in accordance with domestic law, pursue a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the aim pursued (see Ashingdane v. the United Kingdom, 28 May 1985, § 57, Series A no. 93 ).

Turning to the present case, the Court notes that the Constitutional Court clearly acted in accordance with domestic law and its well-established case-law when rejecting the complaint about the fairness of criminal proceedings as out of time (contrast Đokić v. Serbia , no. 1005/08, 20 December 2011; Jovanović v. Serbia , no. 32299/08, 2 October 2012; and Maširević v. Serbia , no. 30671/08 , 11 February 2014). Furthermore, the rules which govern the conditions for the admissibility of appeals before highest judicial authorities are undoubtedly designed to ensure the proper administration of justice and compliance with the principle of legal certainty (see Mikulová v. Slovakia , no. 64001/00, § 52, 6 December 2005). Insofar as the applicant ’ s complaint may be understood to concern the way in which the Constitutional Court has interpreted and applied its procedural rules, the Court reiterates that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. The Court must not substitute its own interpretation to that of the domestic courts in the absence of arbitrariness. This applies, in particular, to the interpretation by courts of procedural rules concerning formal requirements and time-limits for lodging of appeals (see Nakov v. the Former Yugoslav Republic of Macedonia (dec.), no. 68286/01, 24 October 2002). In the Court ’ s opinion, the Constitutional Court ’ s practice according to which only ordinary remedies in criminal proceedings are taken into account when calculating the 30-day time-limit for lodging of constitutional appeals cannot be regarded as arbitrary. In the light of the foregoing, the Court finds that the very essence of the applicant ’ s right of access to a court guaranteed by Article 6 of the Convention was not impaired.

Therefore, this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

C. Article 13 of the Convention

As regards the right of access to a court, the Court has held that Article 6 is to be regarded as constituting a lex specialis in relation to Article 13 (see Sukhorubchenko v. Russia , no. 69315/01, § 60, 10 February 2005).

Consequently, this complaint is incompatible ratione materiae with the provisions of the Convention and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 19 October 2017 .

Fatoş Aracı Pere Pastor Vilanova Deputy Registrar President

[1] Ustav Republike Srbije , Official Gazette o f the Republic of Serbia no. 98/ 06 .

[2] Zakon o Ustavnom sudu , Official Gazette of the Republic of Serbia nos. 109/07, 99/11, 18/13, 40/15 and 103/15 .