FIFTH SECTION

DECISION

Application no. 61953/16 Marie BUCKOVÁ against the Czech Republic

The European Court of Human Rights (Fifth Section), sitting on 6 October 2022 as a Committee composed of:

Arnfinn BÃ¥rdsen , President,

Kateřina Šimáčková ,

Mykola Gnatovskyy , judges,

and Martina Keller, Deputy Section Registrar ,

Having regard to:

the application (no. 61953/16) against the Czech Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 20 October 2016 by a Czech citizen, Ms Marie Bucková (“the applicant”), who was born in 1938 and lived in Prague and who was represented by Mr V. Vlk, a lawyer practising in Prague;

the letter from the applicant’s daughters informing the Court of her death and of their wish to pursue the application lodged by her;

the decision to give notice of the application to the Czech Government (“the Government”), represented by their Agent, Mr V.A. Schorm;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns the rejection of the applicant’s appeal on points of law as belated in a dispute about the payment of a certain sum of money. The applicant relied on Articles 6 § 1 and 13 of the Convention.

2. According to the applicant, on 6 October 2011 her lawyer lodged an appeal on points of law with the District Court via email with his secure electronic signature on 6 October 2011. Upon the lawyer’s inquiry about the status of the appeal on 22 April 2014, the court replied that there was no record of it in its database. The applicant resubmitted the appeal on 30 May 2014 and this time it was properly delivered and subsequently referred to the Supreme Court for decision.

3 . According to the Government, the District Court had no record of any email sent on 6 October 2011 from a computer at the applicant’s lawyer’s firm to [email protected] , nor did it send any acknowledgment of receipt of any such email. It therefore invited the applicant to submit an acknowledgment of receipt of the appeal on points of law sent by email, which should have been sent to her under section 2(5) of Decree no. 496/2004 on the electronic registry if the email lodging the appeal had been delivered to the court. However, the applicant did not submit such an acknowledgment.

4 . On 4 July 2014 the District Court rejected the appeal on points of law as out of time. On 22 August 2014 the Municipal Court quashed the rejection.

5 . On 26 January 2015 the District Court requested that the applicant submit evidence that the appeal on points of law had been dispatched between 9 August and 10 October 2011. To that end, the applicant submitted an expert opinion which confirmed that on 6 October 2011, at 1.08 p.m., the applicant’s representative had sent an email with his secure electronic signature to the District Court’s email address [email protected] . It had been sent with an attachment in PDF format named “Dovolání – definitivní 4.10.2011” (“Appeal on points of law, final on 4.10.2011”). However, the expert opinion did not include any argument confirming that the email in question had also been delivered to one of the two mailboxes of the District Court. The applicant was unable to submit an electronic acknowledgment of receipt which the District Court was obliged to send under section 2(5) of Decree no 496/2004 (see paragraph 5 above).

6 . On 28 July 2015 the Supreme Court rejected the applicant’s appeal as belated. The court, referring to the Constitutional Court’s relevant case-law (no. I. ÚS 137/15 of 18 March 2015) (see also paragraph 12 below), admitted that the appeal had been sent, but could not conclude that it had also been delivered. It emphasised that the appeal on points of law sent to the email address of the District Court on 6 October 2011 could not be automatically considered to have been delivered properly and timely. The court further noted that the burden had been on the applicant, who had been legally represented, to respond appropriately when on 10 October 2011 she had not yet received from the District Court the usual acknowledgment of the delivery of an email with a certified electronic signature containing the appeal on points of law.

7 . On 10 May 2016 the Constitutional Court (IV. ÚS 3151/15) dismissed the applicant’s constitutional complaint, stating that the Supreme Court had duly clarified the reasons for finding the applicant’s appeal on points of law to be belated. It had taken into account the special nature of the electronic “non-secure” filing mechanism governed, inter alia , by Article 42 of the Code of Civil Procedure which laid down different manners of filing a motion to a court, and also referred to its case-law relating to the issue of the delivery of documents filed in the courts by email: it was incumbent on the applicant to respond appropriately to the fact that her lawyer, having sent the email, had not received an acknowledgment of receipt, but she had not started enquiring about the appeal during the time remaining before the expiry of the time-limit for lodging the appeal.

THE COURT’S ASSESSMENT

8. The applicant died on 13 February 2019. On 31 May 2019 her two daughters expressed their wish to continue the application on her behalf, which the Government did not oppose.

9. According to its well-established case-law on the matter (see Mile Novaković v. Croatia , no. 73544/14, §§ 33-34, 17 December 2020, with further references), the Court considers that the applicant’s heirs have standing to continue the proceedings in her stead.

10. Relying on Article 6 § 1 and Article 13 of the Convention, the applicant complained that her right of access to a court and to an effective domestic remedy had been violated by the courts’ handling of her appeal on points of law, leading to its rejection as having been belated.

11. The Court notes that as the role of Article 6 § 1 in relation to Article 13 is that of a lex specialis (see Canè and Others v. Malta (dec.), no. 24788/17, 13 April 2021), it will examine the applicant’s complaints under the latter provision only.

12 . The Government maintained that the applicant had failed to take all necessary measures to safeguard her right of access to a court, as contrary to the principle of vigilantibus iura scripta sunt , she had ignored the fact that no acknowledgment of the delivery of the appeal on points of law to the District Court had been sent to her and she had only started to enquire about the fate of her appeal after two years and six months had elapsed. They also referred to the domestic law in force at the relevant time and the case-law (Constitutional Court’s decisions nos. IV. ÚS 2446/11 of 14 November 2011; III. ÚS 2361/08 of 22 January 2009 and I. ÚS 1903/16 of 21 June 2016 and Supreme Administrative Court’s judgment no. 5 Afs 77/2005-67 of 18 July 2006 and its decision no. 8 Afs 82/2006-68 of 11 August 2006), according to which an email server operator was not, unlike the postal service, a body obliged to deliver the submission under Article 57 § 3 of the Code of Civil Procedure (compliance with time-limits) and no. I. ÚS 137/15 of 18 March 2015 which is also relevant in the present case). Moreover, if the parties to the proceedings opt for delivering documents intended for courts through a privately-held entity’s services the quality of which is not provided for by law, such as an operator of free e-mail services, they should bear the consequences of any difficulties with the delivery of such documents.

13. The applicant disputed the Government’s arguments, arguing that she had proceeded in compliance with the domestic law and that the State authorities should have accepted her appeal on points of law. In her submission, she stressed that no legal regulation required a person filing a document electronically to wait for an acknowledgment of receipt and, if no such acknowledgment was received, to file the document anew; Decree no. 496/2004 on the electronic signature did not regulate how a document should be filed.

14. Examining the present complaints from the perspective of the right of access to a court, the Court refers to the recapitulation of its case-law concerning access to a court in Zubac v. Croatia ([GC], no. 40160/12, §§ 76 ‑ 79, 5 April 2018).

15. The Court observes that in the case of electronic delivery, as in the present case, the document was considered to be delivered only when it reached the court, which was then obliged to confirm its delivery immediately by sending an acknowledgement of receipt to the sender (see paragraphs 3, 5 and 7 above). Only the acknowledgment of receipt constituted evidence of the proper delivery of the document. In this connection, the domestic case ‑ law clearly indicated that an email server operator was not, unlike the postal service, obliged to deliver the document being filed as provided for in Article 57 § 3 of the Code of Civil Procedure (see paragraph 12 above).

16. The applicant, who was legally represented throughout the whole proceedings, did not state that the above statutory background was unknown to her or unclear. Nevertheless, the applicant and her lawyer took no action until 22 April 2014, when the latter started to enquire about the status of the appeal on points of law submitted by email on 6 October 2011 (see paragraph 3 above). The Court considers that the applicant and her legal representative, as the party to the proceedings, may be expected to have displayed the requisite diligence by obtaining information of their own motion about the status of the appeal on points of law, as they had not received the acknowledgment of receipt which the District Court was obliged to send to them immediately after the delivery of the appeal on points of law, as provided by law (see paragraphs 5 and 5 above).

17. If the applicant’s lawyer did not receive the acknowledgment of receipt, he should have realised that the appeal on points of law had not been properly delivered to the court and should have proceeded in accordance with the law by filing his documents anew in another form provided for in the Code of Civil Procedure (see paragraphs 7 and 12 above).

18. Against the above background, the Court does not consider that the present case discloses any appearance of any manifest deficiencies in the protection of the applicant’s Convention rights by the national courts. The application is manifestly ill-founded within the meaning of Article 35 §§ 3 (a) and 4 and must therefore be declared inadmissible.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 3 November 2022.

Martina Keller Arnfinn BÃ¥rdsen Deputy Registrar President