FIRST SECTION
DECISION
Application no. 31779/08
Nada ČOKO
against Croatia
The European Court of Human Rights (First Section), sitting on
17 March 2015 as a Chamber composed of:
Elisabeth Steiner, President,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Paulo Pinto de Albuquerque,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković, judges,
and André Wampach, Deputy Section Registrar,
Having regard to the above application lodged on 16 June 2008,
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
1. The applicant, Ms Nada Čoko, is a Croatian national, who was born in
1969 and lives in Šibenik. She was represented before the Court by
Mr Ž. Čogelja and Ms D. Čogelja, advocates practising in Šibenik.
2. The Croatian Government (“the Government”) were represented by
their Agent, Mrs Š. Stažnik.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised
as follows.
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4. On 4 June 1997 the applicant was dismissed from her employment at
company B.
1. The principal proceedings
5. On 8 July 1997 she brought a civil action in the Šibenik Municipal
Court (Općinski sud u Šibeniku), seeking to have the company’s decision to
dismiss her reversed. Company B. had two representatives in the
proceedings, Ms B. and Mr K.
6. By a judgment of 17 September 1997 (hereafter “the principal
judgment”) the Šibenik Municipal Court ruled for the applicant and ordered
her reinstatement.
7. By a judgment of 15 June 1998 the Šibenik County Court (Županijski
sud u Šibeniku) dismissed an appeal by the defendant company and upheld
the principal judgment. The applicant’s representative was served with a
copy of the second-instance judgment of the Šibenik County Court on
5 February 1999. Mr K. was served with a copy of it on 17 March 1999 and
Ms B. on 25 February 2000.
8. On 7 March 2000 the Šibenik Municipal Court stamped the
applicant’s copy of the principal judgment with certificates of finality and
enforceability. Those certificates indicated that the judgment had become
(a) final on 15 June 1998 and (b) enforceable on 7 March 2000.
9. On 6 March 2002 the defendant company applied to the Šibenik
Municipal Court seeking to have the certificate of the enforceability of the
principal judgment set aside. In so doing it argued that the certificate
wrongly indicated that the judgment in question had become enforceable on
7 March 2000 whereas it had actually become enforceable earlier. That error
was due to the fact that the Municipal Court, when determining the date of
enforceability, had mistakenly taken into account the date on which
judgment had been served on Ms B. instead of the date on which it had been
served on Mr K.
10. On 29 May 2006 the Šibenik Municipal Court set aside the
certificate of enforceability of 7 March 2000. The Municipal Court held
that, as the principal judgment had been served on Mr K. on 17 March 1999,
it had therefore already become enforceable on 26 March 1999, after the
eight-day grace period for voluntary compliance had expired (see
paragraphs 23-25 below). The relevant part of the decision reads as follows:
“The certificate of enforceability of the [principal] judgment of the Šibenik
Municipal Court... is hereby set aside.
...
The judgment... became final on 15 June 1998, the date of the judgment of the
Šibenik County Court..., by which the defendant’s appeal was dismissed.
The judgment of the Šibenik County Court... was served on one of two
representatives of the defendant on 17 March 1999, meaning that the eight-day time-
ČOKO v. CROATIA DECISION
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limit for voluntary compliance with the final judgment began on 18 March 1999, after
the expiry of which the judgment became enforceable.
The fact that the second-instance judgment was served on the second defendant’s
representative on 25 February 2000 has no significance for the enforceability of [that]
judgment...
Since this court has linked the issuance of the certificate of enforceability to the date
of service on the defendant’s second representative... without bearing in mind that the
defendant was duly served through the first representative... the certificate of
enforceability is hereby set aside.”
11. On 26 July 2006 the applicant appealed against that decision,
arguing that since 5 February 1999, the date on which the principal
judgment had been served on her, she had made daily enquires about the
enforceability of the judgment with the Municipal Court’s Registry, but had
only been able to obtain a certificate of enforceability on 7 March 2000. The
applicant also argued that this date should not be changed, even if only the
date on which the principal judgment was served on the first of the
defendant’s two representatives was taken into account, as the time-limit
had been properly calculated from the date on which the acknowledgement
of acceptance of service had been returned to the Municipal Court.
12. On 16 April 2007 the Šibenik County Court dismissed the
applicant’s appeal and upheld the first-instance decision. It held that the
principal judgment had indeed been served on Mr K. on 17 March 1999 and
had become enforceable eight days later.
13. On 18 July 2007 the applicant lodged a constitutional complaint
arguing that the decisions of the Šibenik Municipal Court and the Šibenik
County Court had deprived her of the ability to have the final judgment
entitling her to reinstatement enforced, as they had retroactively created a
situation in which her application for enforcement had been lodged outside
of the thirty-day statutory time-limit provided in section 238 of the
Enforcement Act (see paragraph 28 below). The applicant complained about
the significant gap between the date when the defendant’s first
representative Mr K. had signed the acknowledgement of acceptance of
service and the date when he had returned it to the Šibenik Municipal Court.
14. On 29 November 2007 the Constitutional Court (Ustavni sud
Republike Hrvatske) declared the applicant’s constitutional complaint
inadmissible because the contested decisions were not susceptible to
constitutional review as they could not be regarded as decisions referred to
in section 62(1) of the Constitutional Court Act (see paragraph 21 below)
against which a constitutional complaint could be lodged.
2. Enforcement proceedings
15. Meanwhile, on 7 March 2000 the applicant applied for enforcement
of the principal judgment to the Šibenik Municipal Court. She also sought
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ČOKO v. CROATIA DECISION
payment of salary arrears in the period between 1 June 1997 and
11 February 1998.
16. By a decision of 23 May 2000 the Šibenik Municipal Court issued a
writ of execution (rješenje o ovrsi) ordering the defendant company to
reinstate the applicant within eight days. It however dismissed her claim for
salary arrears.
17. Both the applicant and the defendant company appealed against that
decision. In its appeal, the defendant company claimed that the applicant
had failed to comply with the thirty-day statutory time-limit for seeking the
enforcement set forth in section 238 of the Enforcement Act (see paragraph
28 below) because she had been served with the second-instance judgment
of 15 June 1998 already on 5 February 1999 but had applied for
enforcement only on 7 March 2000 (see paragraphs 7-8 and 15 above).
18. On 22 October 2001 the Šibenik County Court dismissed the
defendant company’s appeal. It found that the applicant had applied for the
enforcement of the principal judgment on the same day that judgment had
become enforceable and thus complied with the statutory time-limit
provided in section 238 of the Enforcement Act (see paragraphs 8 and 15
above and paragraph 28 below). At the same time, the court allowed the
applicant’s appeal and quashed the part of the first-instance decision
dismissing the applicant’s claim for salary arrears and remitted the case.
19. In the resumed enforcement proceedings, the Šibenik Municipal
Court held hearings on 6 March and 3 April 2002. These hearings were
adjourned after the defendant company asked the court to wait for a decision
on its application to have the certificate of enforceability of the principal
judgment set aside (see paragraph 9 above). Another hearing was held on
7 May 2002. It was adjourned due to the possibility of the parties reaching
an out-of-court settlement. At a hearing held on 3 April 2003 the court
decided to forward the entire case file to its President with a view to
deciding on the defendant company’s application to set aside the certificate
of enforceability.
20. By a decision of 22 August 2007 the Šibenik Municipal Court,
relying on section 67(1) of the Enforcement Act (see paragraph 27 below)
discontinued the enforcement proceedings because a certificate of
enforceability had in the meantime been set aside (see paragraphs 10 and 12
above). The applicant did not appeal against that decision.
B. Relevant domestic law
1. The Constitutional Court Act
21. The relevant part of the 1999 Constitutional Act on the
Constitutional Court of the Republic of Croatia (Ustavni zakon o Ustavnom
sudu Republike Hrvatske, Official Gazette no. 99/99 of 29 September 1999
ČOKO v. CROATIA DECISION
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– “the Constitutional Court Act”), as amended by the 2002 Amendments
(Ustavni zakon o izmjenama i dopunama Ustavnog zakona o Ustavnom
sudu Republike Hrvatske, Official Gazette no. 29/2002 of 22 March 2002),
which entered into force on 15 March 2002, reads as follows:
Section 62
“1. Anyone may lodge a constitutional complaint with the Constitutional Court if he
or she deems that the decision of a State authority, local or regional government, or a
legal person invested with public authority, on his or her rights or obligations, or as
regards a suspicion or accusation of a criminal offence, has violated his or her human
rights or fundamental freedoms, or the right to local or regional government,
guaranteed by the Constitution (“constitutional right”)...
2. If another legal remedy is available in respect of the violation of the
constitutional rights [complained of], the constitutional complaint may be lodged only
after this remedy has been exhausted.
3. In matters in which an administrative action or, in civil and non-contentious
proceedings, an appeal on points of law [revizija] is available, remedies shall be
considered exhausted only after the decision on these legal remedies has been given.”
2. Civil Procedure Act
22. The relevant part of the Civil Procedure Act (Zakon o parničnom
postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia
no. 4/77 with subsequent amendments, and Official Gazette of the Republic
of Croatia no. 53/1991 with subsequent amendments), which has been in
force since 1 July 1977, provides as follows:
Section 138
“If a party has several legal representatives or agents, it shall be sufficient to serve a
decision on one of them.”
Section 333(1)
“A judgment which can no longer be contested by an appeal shall become final
where it decides on the plaintiff’s claim or on a counter-claim.”
Section 334(2)
“A judgment shall not take effect in respect of the parties until the day it is served
on them.”
23. Section 328 provides for a time-limit within which a judgment
debtor can voluntarily comply with (execute) the judgment (paricijski rok –
“the grace period”). The lodging of an appeal suspends the running of the
grace period. The provision reads as follows:
“When a judgment debtor has been ordered to do something by the judgment, the
court shall set a time-limit for performance.
Unless special legislation provides otherwise, the time-limit for performance shall
be fifteen days. However, if the performance does not entail payment of money the
court may set a longer time-limit. ...
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ČOKO v. CROATIA DECISION
The time-limit for performance shall start running on the first day after the service
of a copy of the judgment on the judgment debtor.”
24. Section 436 provides that in employment disputes the grace period is
eight days.
3. The Enforcement Act
(a) Relevant provisions
25. The relevant part of the Enforcement Act of 1996 (Ovršni zakon,
Official Gazette of the Republic of Croatia, no. 57/96 with subsequent
amendments), which was in force between 11 August 1996 and 14 October
2012, at the material time provided as follows:
Enforceability of a [court] decision
Section 23(1)
“A court decision ordering [the judgment debtor] to give or do something shall be
enforceable if it has become final and if the time-limit for voluntary performance [that
is, the grace period – paricijski rok] has expired. The time-limit for voluntary
performance runs from the date the decision is served on the enforcement debtor [the
judgment debtor], unless the law provides otherwise.”
Certificate of enforceability
Section 33(1) and (2)
“(1) If an application for enforcement is lodged with a court which did not decide
on the claim at first instance, the application must be accompanied by the original or a
copy of the enforcement title having the certificate of enforceability ...
(2) A certificate of enforceability shall be issued by the court or [other] authority
which adjudicated on the claim at first instance.”
(3) Any certificate of enforceability that was issued without the necessary statutory
requirements shall be set aside by the court or [other] authority by a decision, upon
request or of its own motion.”
26. Section 37(5), as in force at the material time, provided that the
enforcement court was not entitled to dismiss of its own motion an
application for enforcement based on a court judgment which, by the time
the application was being decided upon, had become final but had not yet
become enforceable. Section 37(5) read as follows:
“The court shall not of its own motion declare inadmissible an application for
enforcement based on a final judicial decision [notably, a judgment], in-court
settlement or notarial deed solely on the ground that those documents have not been
stamped with a certificate of enforceability or because [they] have not become
enforceable at the time the application for enforcement is being decided upon ...”
27. Section 67(1) of the Enforcement Act, as in force at the material
time, stated grounds on the basis of which the enforcement court could
discontinue the enforcement. That provision read as follows:
ČOKO v. CROATIA DECISION
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“Unless this Act provides otherwise, the court shall of its own motion discontinue
enforcement proceedings if the enforcement title was finally quashed, reversed,
annulled, repealed or otherwise deprived of its effect, or if the certificate of
enforceability was set aside.”
28. Chapter 21 of the Enforcement Act regulated the enforcement of
judgments ordering the reinstatement of employees. The relevant provision
of that Chapter read as follows:
The time-limit for lodging an application for enforcement
Section 238
“An application for enforcement [on the basis of an enforcement title ordering an
employer to reinstate an employee ...] may be lodged within a time-limit of thirty days
from the date the enforcement creditor acquires the right to lodge such application.”
(b) The doctrine
29. Croatian legal scholars have expressed the opinion that setting aside
the certificate of enforceability did not automatically lead to discontinuation
of the enforcement proceedings, as the text of section 67(1) of the
Enforcement Act (see paragraph 27 above) appeared to suggest. This was
especially so in the situations such as the one referred to in section 37(5) of
the same Act, namely, where the judgment sought to be enforced had
become final but had not yet become enforceable (see paragraph 26 above).
In such situations the enforcement court was not entitled to discontinue the
enforcement proceedings. In particular (see Dika, Mihajlo: Građansko
ovršno pravo [Civil Enforcement Law], Narodne novine, Zagreb, 2007,
p. 416):
“If the certificate of enforceability was set aside on the grounds which do not
prevent [the enforcement creditor from] seeking enforcement without such certificate
(section 37(5) [of the Enforcement Act]), the fact that the certificate of enforceability
was set aside cannot be a ground for discontinuation of the [enforcement]
proceedings.”
30. As regards the issue how the time-limit provided for in section 238
of the Enforcement Act (see paragraph 28 above) was to be calculated the
same author expressed the following view (see Dika, Mihajlo: op.cit.,
p. 718):
“The time-limit [in question] should in principle be calculated from the moment the
enforcement title [for example, a judgment] becomes enforceable. However, given
that the enforcement creditor has to exercise his or her right within that time-limit, the
moment when that time-limit starts to run has to correspond to the moment when the
enforcement creditor learns that [the judgment sought to be enforced] has become
enforceable. One often has to wait some time to find out whether and [, if so] when
the enforcement debtor [the judgment debtor] has received the first-instance
[judgment] and whether he or she has appealed against it [, and if so] when the
second-instance [judgment] dismissing the appeal and upholding the first-instance
judgment was served on the enforcement debtor and when the grace period for
voluntary compliance which started to run from the service of that [second-instance
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judgment] expired. Therefore, it should be understood that the thirty-day time-limit
should start to run from the day the court was able to issue the certificate of
enforceability.
...
Given that the court is not entitled to declare inadmissible of its own motion an
application for enforcement based on a final court judgment ... simply because [the
judgment sought to be enforced] has not been stamped with a certificate of
enforceability at the time the application for enforcement is being decided upon, or to
dismiss such application because the judgment to be enforced has not become
enforceable (section 37(5) [of the Enforcement Act], it should be understood that the
employee would be entitled to apply for enforcement even before [the judgment
sought to be enforced] became enforceable ...”
COMPLAINT
31. The applicant complained under Article 6 § 1 of the Convention that
by setting aside the certificate of enforceability of the principal judgment,
the domestic courts had deprived her of the possibility to have that
judgment enforced.
THE LAW
32. The applicant complained that she had been unable to enforce the
principal judgment ordering her reinstatement because the domestic courts
had unjustifiably set aside that judgment’s certificate of enforceability. She
relied on Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a
fair ... hearing ... by [a] ... tribunal ...”
33. The Government disputed the admissibility of the application on
three grounds. They argued that the applicant had failed to comply with the
six-month rule and exhaust domestic remedies, and that her application was,
in any event, manifestly ill-founded.
Non-exhaustion of domestic remedies
(a) The parties’ submissions
34. The Government argued that the applicant had failed to exhaust
available domestic remedies, inter alia, because she had not appealed
against the Šibenik Municipal Court’s decision of 22 August 2007 (see
paragraph 20 above) whereby that court had discontinued the enforcement
proceedings.
ČOKO v. CROATIA DECISION
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35. The applicant replied that such an appeal would not have been
effective since, under section 67 of the Enforcement Act (see paragraph 27
above), setting aside of a certificate of enforceability had automatically
resulted in the discontinuation of enforcement proceedings.
(b) The Court’s assessment
36. The Court notes that according to Croatian legal scholars section 67
(see paragraph 27 above) could not be viewed in isolation but in conjunction
with other provisions of the Enforcement Act, namely section 37(5) thereof
(see paragraph 26 above). In particular, in their view the enforcement court
was not under the Enforcement Act entitled to discontinue the enforcement
proceedings if the enforcement certificate had been set aside solely because
the judgment sought to be enforced had not (yet) become enforceable (see
paragraph 29 above). It would therefore appear that, a fortiori, the
enforcement court was not entitled to do so either in the situation such as
the one in the present case where the only reason why the certificate of
enforceability had been set aside was that the judgment sought to be
enforced had become enforceable earlier than the certificate indicated.
Indeed, in such situations it would be inexpedient to discontinue the
enforcement since the enforcement creditor could at any time obtain a new
certificate of enforceability with the correct date and apply for enforcement
again.
37. For these reasons the Court cannot accept the applicant’s argument
(see paragraph 35 above) that lodging an appeal against the Šibenik
Municipal Court’s decision of 22 August 2007 to discontinue the
enforcement proceedings would not have offered her any prospects of
success. Had she done so the applicant would have given the domestic
courts a chance to quash that decision whereupon they would have had an
opportunity to examine whether, despite setting aside of the certificate of
enforceability, the applicant nevertheless applied for enforcement of the
principal judgment within the thirty-day time-limit provided in section 238
of the Enforcement Act (see paragraph 28 above). According to that
provision the time-limit in question started to run from the date “the
enforcement creditor acquired the right to apply for enforcement”, which
date did not necessarily have to correspond to the date on which the
judgment had become enforceable (see paragraph 30 above).
38. Since it therefore appeared possible to have the principal judgment
enforced even if the certificate of enforceability had been set aside, the
applicant was, in order to comply with Article 35 § 1 of the Convention,
primarily required to pursue remedies in the enforcement proceedings.
However, she did not do so as she failed to appeal against the Šibenik
Municipal Court’s decision of 22 August 2007.
39. In so far as any doubts remain as to the effectiveness of that remedy,
the Court refers to its constant-case-law according to which the existence of
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mere doubts as to the prospects of success of a particular remedy which is
not obviously futile is not a valid reason for failing to exhaust that avenue of
redress (see, for example, Vučković and Others v. Serbia [GC], no.
17153/11, §§ 74 and 84, 25 March 2014).
40. It follows that the present application is inadmissible under
Article 35 § 1 of the Convention for non-exhaustion of domestic remedies
and must therefore be rejected pursuant to Article 35 § 4 thereof.
41. In view of this conclusion the Court does not find it necessary to
address the Government’s remaining inadmissibility objections (see
paragraph 33 above).
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 9 April 2015.
André Wampach
Deputy Registrar
Elisabeth Steiner
President