FIFTH SECTION

DECISION

Application no . 9541/11 Jan KRŮTA against the Czech Republic

The European Court of Human Rights (Fifth Section), sitting on 11 September 2012 as a Committee composed of:

Mark Villiger , President, Karel Jungwiert , André Potocki , judges,

and Stephen Phillips , Deputy Section Registrar ,

Having regard to the above application lodged on 2 February 2011,

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

The applicant, Mr Jan Krůta , is a Czech national who was born in 1967 and lives in Prague . He is represented b efore the Court by Mr M. Cír , a lawyer practising in Mochov .

A. The circumstances of the case

On 31 July 2007 the Prague Municipal Court ( městský soud ) found the applicant guilty of fraud and sentenced him to thirty months ’ imprisonment suspended for a probationary period of four years. The court found it established that the applicant, together with another co-accused, had attempted to cede a counterfeit lease contract for a building to a certain H. who had paid them CZK 6,000,000 (approximately EUR 240,000). It further ordered the applicant to pay together with the other co-accused CZK 6,000,000 to H. in damages. It based its decision on several documents and witness statements including that of a person that had signed the counterfeited lease contract. The applicant did not request the court to admit any additional evidence.

On 7 January 2009 the Prague High Court ( vrchní soud ) upheld the judgment sharing the conclusions of the first-instance court. The applicant did not request the court to admit any additional evidence.

On 29 September 2009 the Supreme Court ( Nejvyšší soud ) dismissed the applicant ’ s appeal on points of law, endorsing the legal conclusions of the lower courts. Its decision was notified to the applicant and his lawyer on 3 December and 23 November 2009, respectively.

The applicant lodged a constitutional appeal claiming violations of his right to fair trial.

He submitted a slip with a stamp of the Constitutional Court ( Ústavní soud ) and a signature by a clerk confirming that a letter from his lawyer had reached the court on 20 January 2010. The appeal and the accompanying documents were, however, stamped with a date of 17 February 2010.

On 18 February 2010 the Constitutional Court sent a letter to the applicant confirming receipt of the applicant ’ s constitutional appeal. The letter stated 17 February 2010 as the date of introduction of the appeal.

In a letter of 22 March 2010 the Constitutional Court requested the applicant to send additional documents. It again stated that the appeal had been lodged on 17 February 2010. The applicant ’ s lawyer received the letter on 25 March 2010. The applicant did not reply to this letter.

On 27 July 2010 the Constitutional Court dismissed the applicant ’ s constitutional appeal as having been lodged out of time as the 60-day time ‑ limit had started running on 4 December 2009 while the appeal had been lodged on 17 February 2010 only.

B. Relevant domestic law

The relevant domestic law and practice were set out in the Court ’ s judgment Zedník v. the Czech Republic , no. 74328/01, 28 June 2005 .

COMPLAINTS

The applicant complained under Articles 6 and 13 of the Convention that the Constitutional Court had wrongly dismissed his constitutional appeal as having been lodged too late.

Under the same provisions, he also complained that the domestic courts had made incorrect legal conclusions, that they had not requested an expert opinion whether the signature on the contract had been counterfeited and that his sentence had been disproportionate.

THE LAW

1. The applicant complained that the Constitutional Court had denied him right of access to court. He relied on Article 6 of the Convention which reads as follow:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

The Government argued that there was no information in the case file of the Constitutional Court or its records of incoming mail about any letter received from the applicant ’ s lawyer on 20 January 2010, contrary to applicant ’ s allegations. On the other hand the constitutional appeal and the accompanying documents were stamped a s being received on 17 February 2010. Moreover, the stamp on the confirmation slip presented by the applicant was not the one used for purposes of confirming incoming correspondence. The applicant failed to produce any confirmation that he had actually sent his constitutional appeal on that date.

The Government further maintained that if the constitutional appeal had not been declared inadmissible as being belated it would have to be declared inadmissible for not remedying its deficiencies as the applicant had failed to submit the additional documents requested by the letter of 22 March 2010.

Moreover, while the applicant had received two letters from the Constitutional Court indicating that his constitutional appeal had been lodged on 17 February 2010, he had never disputed the correctness of this information before the Constitutional Court dismissed his appeal.

The applicant argued that the Government had not cast any doubt on the authenticity of the confirmation slip and that he cannot be blamed for the fact that the court clerk had used a wrong stamp, as the Government suggested. He added that the argument that his constitutional appeal could have been dismissed for other reasons was irrelevant as it had been dismissed only for being allegedly belated.

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 court is concerned. In such cases, in order to establish whether the right of access to court was granted or denied, the Court examines whether the applicants took the necessary measures to safeguard their right of access to court (see Vogtmann v. Croatia ( dec .), no. 10543/07, 17 June 2010).

Turning to the present case, the Court firstly notes that the Government questioned the authenticity of the confirmation slip adduced by the applicant showing that his lawyer delivered a letter to the Constitutional Court on 20 January 2010. Yet, they failed to prove that it was forged or invalid otherwise. The Court therefore accepts that the letter was delivered to the Constitutional Court on that date. It adds that it is not necessary for the applicant to prove that that letter contained the constitutional appeal . If the Government disputed the fact that it contained the constitutional appeal it was up to them to prove what then was sent by the applicant ’ s lawyers that day (see Hornáček v. Slovakia , no. 65575/01, § 24-26, 6 December 2005).

The Court notes that the applicant received two letters from the Constitutional Court before the latter decided on his constitutional appeal. Both letters clearly stated as the introductory date 17 February 2010. The applicant, however, did not react to these letters and did not dispute this date. The Court finds that the lack of reaction of the applicant is not compatible with the requirement of diligence in protecting his interests and to take the necessary measures to safeguard his right of access to court (see Vogtmann , cited above).

Moreover, b y failing to react he is now placing the Court in the position of a first-instance court to decide on the date of introduction of his constitutional appeal, even though this was clearly avoidable. This is in variance with the principle that the Court is intended to be subsidiary to the national systems safeguarding human rights (see Austin and Others v. the United Kingdom [GC], nos. 39692/09, 40713/09 and 41008/09 , § 61, 15 March 2012) .

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

2. The applicant further disagreed with the legal conclusions of the domestic courts, including his sentence and complained that courts had not requested an expert opinion to assess the authenticity of a signature on the disputed contract.

Having examined these complaints submitted by the applicant, the Court, having regard to all the material in its possession, and in so far as these complaints fall within its competence, finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that these complaints must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Stephen Phillips Mark Villiger Deputy Registrar President