Last Updated on October 3, 2020 by LawEuro
Communicated on 22 November 2018
THIRD SECTION
Application no. 12219/13
LjubicaMRŠO
against Serbia
lodged on 15 January 2013
STATEMENT OF FACTS
1. The applicant in the first case, Ms LjubicaMršo, is a Serbian national, who was born in 1954 and lives in Novi Sad. She is represented before the Court by Mr P. Bogovac, a lawyer practising in the same town.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
A. The circumstances of the case
3. Following the applicant’s dismissal by her employer, on 16 June 2003 she lodged a claim with the Municipal Court (Opštinskisud) in Novi Sad, seeking annulment of this decision and reinstatement, as well as legal costs.
4. On 25 February 2009 the Municipal Court ruled in favour of the applicant.
5. On 15 June 2010 the Appeals Court (Apelacionisud) in Novi Sadreversed this judgment and rejected the applicant’s claim.
6. On 1 June 2011 the Supreme Cassation Court (Vrhovnisud) rejected a further appeal by the applicant on points of law (revizija).
7. As evidenced by the certificates of receipt (dostavnicazaličnodostavljanjepismena), the applicant’s lawyers Mr N.T. and Mr M.K. received this judgment on 30 August and 12 September 2011 respectively.
8. On 11 October 2011 a third lawyer Mr P.B. lodged a constitutional appeal on behalf of the applicant. Lawyer M.K. has been a partner in his office.
9. On 26 June 2012 the Constitutional Court dismissed this constitutional appeal as out of time (neblagovremenaustavnažalba). In doing so, it held that the relevant judgment had been served on the applicant on 30 August 2011, without mentioning the second delivery, and therefore that the constitutional appeal had been lodged outside the statutory thirty-day time-limit (see paragraph 16, Article 84 of the Constitutional Court Act under “Relevant domestic law” below). This decision was served on the applicant on 23 July 2012.
B. Relevant domestic law and practice
1. Constitutional Court Act (Zakon o Ustavnomsudu; published in the Official Gazette of the Republic of Serbia no. 109/07)
10. The relevant provisions of this Act read as follows:
Article 7 § 1
“The decisions of the Constitutional Court shall be final, enforceable and binding.”
Article 84 § 1
“A constitutional appeal may be lodged within thirty days of receipt of the individual decision or the date of commission of the actions … [in question] …”
Article 89 § 2
“When the Constitutional Court finds that an … individual decision or action has violated or denied a human or minority right or a freedom guaranteed by the Constitution, it shall revoke the … decision in question or ban the continuation of such action or order the implementation of other specific measures as well as the removal of all adverse consequences within a specified period of time.”
2. Constitutional Court Rules of Procedure (Poslovnik o raduUstavnogsuda; published in OG RS no. 24/08, 27/08 and 76/11)
11. The relevant provisions of this Act read as follows:
Rule 91: Request for the rectification of an adopted decision
“The Constitutional Court shall place on its agenda a reasoned written request by its President, a judge or a working body, for the rectification of an adopted decision (odluka, rešenjeilizaključak), provided that the decision has not already been dispatched … [to the appellant]…
A fresh new court’s session shall be scheduled to examine whether rectification of the original decision is necessary.”
Rule 93: Publication of an amended or supplementary legal opinion
“An amended opinion of the Constitutional Court shall be recorded in the minutes taken at the Constitutional Court’s regular session upon its adoption. Such … [an opinion] … and … [its] … reasoning shall be cited in the first Constitutional Court decision or ruling given … [thereafter] …”
3. Opinion adopted at the Constitutional Court’s session of 5 February 2009
12. A party to proceedings is to be notified that, pursuant to Article 166 § 2 of the Constitution of the Republic of Serbia, all decisions of the Constitutional Court are final, enforceable and binding, and that there is no legal basis to lodge a complaint, appeal or constitutional appeal against the decisions of the Constitutional Court.
13. If a party submits a request for rectification of an adopted decision, this does not lead to the opening of a new application. After the request has been reviewed by a judge rapporteur, the interested party will be informed of the above rules by way of a letter signed by the court registrar.
4. Supplementary opinion of the Constitutional Court of 2 June 2011
14. In exceptional circumstances, the Constitutional Court may revise its decision on a constitutional appeal, even after it has been dispatched to the appellant, in a manner and in accordance with the rules prescribed by Rule 91 of the Rules of Procedure if the original decision was based on a manifest error of the court that cannot otherwise be rectified.
5. Relevant law on starting date for calculation of the time-limit
15. On 7 February 2011 the Supreme Court of Serbia (initially the Supreme Court’s Civil Division) adopted a Legal Opinion (Pravnizaključakusvojen 27. novembra 2010. nasedniciGrađanskogodeljenja VKS, preimenovan u Pravnoshvatanjenasednici 7. februara 2011) concerning the calculation of time-limit for lodging an appeal or other legal remedy when a party has appointed several statutory representatives or lawyers to represent him/her/it. It states that in such case, and if the competent court had not used the power given by Article 132 § 2 of the Civil Proceedings Act to deliver the decision only to one of them, but dispatched the decision to all representatives/lawyers, the time-limit for lodging an appeal starts to run separately/individually from the date the decision had been served on each of them.
16. Further, under Article 103 § 4 of the Civil Proceedings Act, it is the next day after the date of service of the judgment that is taken as the starting date for calculation of the time-limit.
COMPLAINTS
The applicant complains under Articles 6 and 13 of the Convention that she was unlawfully denied access to the Constitutional Court of Serbia because that court erroneously viewed her constitutional appeal as having been lodged outside the relevant time-limit.
She also complains under Article 6 about the protracted length of the relevant labour-related proceedings.
QUESTIONS TO THE PARTIES
1. Has the applicant properly exhausted the domestic remedies before
the Constitutional Court? In that connection, the parties are invited to comment on and provide the copies of the relevant documents and any relevant jurisprudence in respect of:
(a) the content of the rejection letters that the applicant had received from the Constitutional Court as to the final nature of the court’s decisions?
(b) was the supplementary opinion of the Constitutional Court of 2 June 2011 published, and if so, where and when (see paragraphs 11 (Rule 93) and 14 of the attached “Statement of facts”)?
2. Did the applicant have a fair hearing in the determination of her civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, has the applicant been denied, in breach of Article 6 § 1 of the Convention, the “right to a court” in the determination of her civil rights and obligations, in view of the Constitutional Court’s finding that her constitutional appeal was lodged outside the statutory time-limit (see, for example, Zemanová v. the Czech Republic, no. 6019/03, §§ 20-22, 13 December 2005, and Zvolský and Zvolská v. the Czech Republic, no. 46129/99, § 51, ECHR 2002‑IX)?
The parties are also invited to submit the relevant domestic law and the case-law of the domestic courts in respect of the calculation of time-limit for lodging an appeal or other legal remedy when a party has appointed several statutory representatives or lawyers to represent him/her/it, including the lawyers from the same law firm (see Article 132 § 2 of the Civil Proceedings Act in conjunction with the Practice Direction of the Supreme Court’s Civil Division adopted on 27 November 2010 and 7 February 2011 (Pravnizaključakusvojen 27. novembra 2010.nasedniciGrađanskogodeljenja VKS, preimenovan u Pravnoshvatanjenasednici 7. februara 2011)).
3. Furthermore, has the length of the applicant’s domestic proceedings been excessive and, as such, in breach of the “reasonable time” requirement contained in Article 6 § 1?
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