Communicated on 27 August 2014

FIFTH SECTION

Application no. 71872/12 Zlatka AŽDAJIĆ against Slovenia lodged on 5 November 2012

STATEMENT OF FACTS

The applicant, Ms Zlatka Aždajić , is a Slovenian national, who was born in 1949 and lives in Ruše . She is represented before the Court by Ms B. Marčič , a lawyer practising in Maribor .

A. The circumstances of the case

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

On 13 December 2006 K.R. lodged an action against the applicant claiming the payment of loans (in the total amount of 14,000 euros (EUR)) she had allegedly given to the applicant in July and August 2004 respectively on the basis of oral agreements. In order to prove that the loan existed, K.R. appended a letter written by the applicant on 20 November 2006, the relevant parts of which read as follows:

“I do not owe you anything!

It is true that you have given me some money as a gift. I did not want to take it but you literally forced me, saying that you did not have anyone to whom you could have given it and that I had helped you a lot... These were your words, remember!

For the time being I do not have money, I have a loan that I have not yet paid; therefore I cannot return your gift for now.

...

When I will have it, I will gladly return your gift!”

On an unspecified date in January 2007 the Maribor District Court forwarded the claim to the applicant, instructing her that she had 30 days to file her observations. Referring to Section 277 Civil Procedure Act, the District Court warned the applicant that in case of her failure to reply within the given time limit, it would grant the claim by a default judgment.

On 22 January 2007 the applicant, allegedly unaware of the claim lodged against her, travelled to Vienna in order to obtain a visa for her journey to Namibia. She stayed in Vienna until 26 January 2007 when she flew to Namibia.

On 25 January 2007 the postman unsuccessfully tried to serve the applicant the court ’ s writings including the claim at her home address, leaving her a delivery slip in the mailbox and informing her that he would return the following day.

The following day, 26 January 2007, not having found the applicant at her address, the postman left in her mailbox another delivery slip, informing her that she could collect the content of the communication at the post office within 15 days. The delivery slip included a reference to Sections 140 and 141 of the Civil Procedure Act (see below under “Relevant domestic law and practice”) .

As the applicant had not collected the mail from the post office within 15 days, the service was deemed to have been made on 26 January 2007 when the delivery slip was left in her mailbox ; hence the deadline to file observations expired on 26 February 2007.

The applicant claims that upon her return from Namibia on 24 March 2007 she did not find any of the two delivery slips allegedly left by the postman in her mailbox and that she was entirely unaware of the pending proceedings.

On 14 September 2007 the Maribor District Court issued a default judgment, granting the claim and ordering the applicant to pay within 15 days EUR 14,000 to K.R. with default interests. As far as relevant, the reasoning of the District Court reads as follows:

“The court had to establish whether the claim was well-founded from the facts which were submitted with the claim and whether the facts on which the claim was based were not in contradiction with the evidence submitted by the plaintiff herself or with facts which are generally known.

The plaintiff submitted with the claim a defendant ’ s letter of 20 November 2006 (A3) from which it appears that she had received “some money” as a gift.

The submissions of the defendant in the letter of 20 November 2006 that she had received some money as a gift as such do not by themselves negate the plaintiff ’ s submissions that the plaintiff had given the money as a loan, as the defendant was given the possibility and a right to defend her positions in the proceedings before the court by submitting a response to the claim, which she had failed to do.

In addition, the submissions of the defendant in the letter of 20 November 2006 that she would return the given money (“When I will have it, I will gladly return your gift!”) cannot be ignored either.”

The decision was served on the applicant on 20 September 2007.

On 28 September 2007 the applicant lodged an appeal against the decision of the District Court and a request to reinstate the proceedings. She noted that she had failed to respond due to her absence from Slovenia, submitting that she had not received the delivery slips allegedly left in her mailbox and requested the court to annul the decision and to order a fresh notification of K.R. ’ s claim.

On 13 December 2007 the Maribor District Court rejected the applicant ’ s request to reinstate the proceedings as being out of time. It held that the applicant should have found the delivery slips left in her mailbox at the latest by the end of March when she had returned from Namibia. Therefore, she should have lodged a request to reinstate the proceedings within three months from her return. The applicant appealed.

On 9 September 2008 the Maribor Higher Court dismissed the applicant ’ s appeal against the decisions of the District Court of 14 September 2007 and 13 December 2007 respectively. It held that it could not accept the applicant ’ s submissions that there had been no delivery slips in her mailbox, as it was indicated on the advice of delivery that they were left there. It further dismissed the applicant ’ s submissions that the evidence used by the plaintiff, namely the letter of 20 November 2006, was in contradiction with the facts alleged.

On 4 November 2008 the applicant lodged an appeal on points of law.

On 11 November 2010 the Supreme Court dismissed the applicant ’ s appeal on points of law. The applicant lodged a constitutional complaint.

On 22 May 20012 the Constitutional Court dismissed the applicant ’ s constitutional appeal by referring to S ection 55 .b of the Constitutional Court Act.

B. Relevant domestic law and practice

1. Civil Procedure Act

The relevant provisions of the Civil Procedure Act ( Zakon o pravdnem postopku ) in force at the relevant time (consolidated version published in the Official Gazette no. 36 /200 4 ) guiding the service of court ’ s documents and default judgments, in so far as relevant, read as follows.

Section 140:

“ If the recipient is not found at his place of residence, the service shall be effected by delivery of the court ’ s documents to an adult member of his household who shall be obliged to accept it. If ad ult members of the recipient ’ s household cannot be reached either, the court ’ s documents may be left with the housekeeper or a neighbour if they are willing to accept them .

...”

Section 141:

“ If the court ’ s documents cannot be served in the manner prescribed in the preceding Section , the service on a natural person shall be effected by delivery of the court ’ s documents to the court ordering the service or, in case of service by mail, to the post office in the place of the recipient ’ s permanent residence, and by leaving on the door or in the exposed mailbox of the recipient ’ s permanent residence a notice indicating the place where the documents are left , including a reference to the 15 days ’ t ime-limit with in which they are to be collected. The server shall state in the notice and on the documents to be served the reasons for such conduct and the day on which the notice was left to the recipient, and shall put his signature thereto.

If the recipient fails to collect the documents within 15 days, the service shall deem to have been made on the day when the notice was left on his door or in his exposed mailbox, of which he shall be advised in the notice.

...”

Section 277:

“ The defendant shall file his defence plea within 30 days after the action has been served upon him, unless otherwise provided by the present Act.

The defendant shall be instructed by the court that in the event of his failure to file a defence plea within the time limit as determined in the first paragraph of this Article (...) the court will render a judgment granting the claim (default judgment ).”

Section 318:

“If the defendant has failed to file the defence plea within the time period provided for in Section 277 of the present Act, the court shall render a judgment satisfying the claim (default judgment), provided that:

1. the action has been duly served upon the defendant in order to allow him to file the defence plea;

2. the action does not contain a claim which the parties may not dispose of;

3. the claim is founded upon the facts stated in the action;

4. the facts upon which the claim is based upon are not in contradiction with evidence adduced by the plaintiff or with judicial knowledge.

The issuing of a default judgment shall be postponed if prior inquiries are to be made with respect to the circumstances referred to in the preceding paragraph.

If the facts stated in the action do not substantiate the claim to a sufficient extent, the court shall deliver a judgment dismissing the claim.”

Section 324:

“The written judgment shall contain an introductory part, an operative part, reasoning, and a legal warning as to the appeal.

...

In a default judgment ... the reasoning shall contain only the indication of the reasons for issuing the judgment concerned.

...”

Section 338:

“A judgment may be attacked:

1. on the ground of severe violation of civil procedure provisions;

2. on the ground of erroneous or incomplete determination of the facts;

3. on the ground of violation of substantive law.

A default judgment may not be attacked on the ground that the facts had been established in an incorrect or incomplete manner.

...”

2. The Constitutional Court Act

In so far as relevant, Section 55b of the Constitutional Court Act ( Zakon o ustavnem sodišču , consolidated version published in the Official Gazette no. 64/2007 ) , reads as follows:

“(1) A constitutional appeal shall be rejected:

- if it does not concern an individual act by which a state authority, local authority, or a holder of public power decided on the rights, obligations or legal interest of the complainant;

- if the complainant does not have a legal interest in a decision on the constitutional appeal;

- if it is not admissible, except in the instance referred to in the third paragraph of the preceding section;

- if it was not lodged in due time;

...

(2) A constitutional appeal shall be accepted for consideration:

- if there has been a violation of human rights or fundamental freedoms which has had significant consequences for the complainant; or

- if it concerns an important constitutional question which goes beyond the importance of the actual case.

...”

3 . The Constitutional Court ’ s decision of 9 July 2009

In its decision no. U-I-2798/08-14 of 9 July 2009, the Constitutional Court examined Section 143 of the Civil Procedure Act , which provide d for the fictitious serving of documents at a formally registered residence (i.e. the address for service) although the addressee d id not in fact reside there, was unknown, ha d moved, or ha d moved abroad for more than three months. It decided that the implementation of the plaintiff ’ s right to effective judicial protection d id not outweigh the right of the defendant to be heard in the proceedings. Therefore, the Constitutional Court held that the challenged statutory provision entail ed an excessive interference with the defendant ’ s right provided for in Article 22 of the Constitution .

4 . Decisions of the higher courts on serving of documents

In its decision no. I Ip 968/2007 of 12 December 2007 , the Celje Higher Court concluded that as the defendants had been absent from their place of residence for an entire month , it could not be considered that they had been properly served with the court ’ s document s; therefore , the rule on fictitious serving could not be applied.

In its decision no. II Ips 242/2008 of 23 October 2008 the Supreme Court allowed the possibility to exclude the application of the rule on fictitious serving if the postman could have known that the party was absent from his or her place of residence.

COMPLAINTS

1. The applicant complain ed under Article 6 § 1 of the Convention about a violation of her right to a fair trial. She alleged that she had not been properly served the claim lodged against her and criticized the dismissal of her request to reinstate the proceedings. S he considered that she had not been given a realistic opportunity to participate in the proceedings. She further c hallenged the reasoning of the courts in respect of why the claim would be well-founded which she considered arbitrary and insufficient.

2. Under Article 13 of the Convention, the applicant argued that she had not been afforded an effective remedy in respect of the above complaints, in particular due to the dismissal of her constitutional complaint by reference to Section 55. b of the Constitutional Court Act .

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of her civil rights and obligations, in accordance with Article 6 of the Convention?

2. In particular, did the applicant unequivocally waive her right to appear and defend herself?

3. Assuming that the answer to the above question is negative, was the applicant afforded with a fair opportunity to obtain a fresh determination of the merits of her civil case in her presence (see, Dilipak and Karakaya v. Turkey , nos. 7942/05 and 24838/05 , § 80, 4 March 2014) ?