CONCURRING OPINION OF JUDGE KŪRIS

1. The applicant was unable to prove the content of the document sent by fax. The Government expressed doubts as to whether the document sent by fax was in fact the appeal in question. A conspiracy theory could be put forward whereby the applicant ’ s lawyer, not yet ready to lodge the final version of the appeal in due time, faxed some other six pages in order to gain time for finalising the requisite document, which he subsequently sent by registered mail. This, however, would be mere speculation, and the Government did not resort to it. Instead, they argued that the burden of proof that the fax transmission was indeed the same document which was sent by registered mail on the following day ought to be borne by the applicant.

2. Given that that the content of documents sent by fax is encrypted and cannot be proved, it would not be unreasonable for courts to require that the sender take measure which, in the event of a dispute, could prove that the document submitted by fax had a particular content. A mobile-telephone photograph of a fax-sent document, with an indication of the date and time, would probably suffice. Or a document could be scanned and sent by electronic mail to a fax server. There must also be other possibilities. Which would be the most appropriate, or the most efficient, is not for me to suggest.

3. However, the Slovenian authorities had to have been aware of the technological peculiarity that the content of documents sent by fax cannot be proved. Consequently, they could reasonably have foreseen that disputes as to the content of such a document could arise. Nevertheless, the Court Rules (see paragraph 18 of the judgment) took no account whatsoever of the realistic possibility of such a turn of events and did not oblige the senders to take any precautionary measures in this regard. Hence, the placement of the burden of proof on the applicant was not only “overly rigid” (as is rightly stated in paragraph 37), but also legally unsubstantiated and unfair.

4. More generally, Rules 99 and 100 lag behind life. They mention telegrams and telefax, but keep silent on their Internet-based alternatives, which have displaced these older versions of communication. The use of fax machines is steadily decreasing, but they are still employed. As to telegraph messages, many countries discontinued their telegram services years ago. This is how Wikipedia describes telegraph services in Slovenia:

“[Slovenian Post] provides a telegram service still commonly used for special occasions such as births, anniversaries, condolences, graduations, etc. ... Telegrams are usually printed in a typewriter font on greeting or condolences cards delivered in a specific yellow envelope. It is also possible to send gifts (e.g. chocolates, wine, plush toys, flowers) together with a message. The telegrams can be sent from local post offices, over the phone or online to addresses in Slovenia only.” ( https://en.wikipedia.org/wiki/Telegraphy , accessed 13 May 2016).

In this reality , imagination fails me when trying to envisage what an appeal sent by telegram to a Slovenian court by someone endeavouring to avail himself or herself of Rules 99 and 100 would look like.

5. I began this opinion by putting forward a conspiracy theory. As I have already made clear, this theory is mere speculation with regard to the applicant and his lawyer, and I do not wish to be misunderstood on this count. But as long as Rules 99 and 100 remain as they stand today, this theory may serve, to my regret, as a tip for someone who indeed might seek to benefit dishonestly from the lawmakers ’ oversight or slowness. Intervention by the legislature would be welcomed, not least by Slovenian taxpayers, especially if it occurs before a similar application is lodged with this Court – with a more or less (but rather more) predictable outcome.