AZDAJIC v. SLOVENIA - 71872/12 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2015] ECHR 864 (08 October 2015)

In the case of Aždajić v. Slovenia,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

          Angelika Nußberger, President,
          Boštjan M. Zupančič,
          Ganna Yudkivska,
          Vincent A. De Gaetano,
          André Potocki,
          Helena Jäderblom,
          Síofra O’Leary, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 15 September 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 71872/12) against the Republic of Slovenia, lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Ms Zlatka Aždajić (“the applicant”), on 5 November 2012.

2. The applicant was represented by Ms B. Marčič, a lawyer practising in Maribor. The Slovenian Government (“the Government”) were represented by their Agent, Mrs B. Jovin Hrastnik, State Attorney.

3. The applicant complained that she could not effectively enjoy the rights guaranteed by Article 6 of the Convention since she had been unaware of proceedings which had been instituted against her.

4. On 27 August 2014 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1949 and lives in Ruše.

6. On 11 November 2006 K.R. sent a letter to the applicant by registered mail. In the letter, she asked the applicant to repay a loan which she had given to her in 2004 within thirty days of receipt of the letter, and stated that she would institute court proceedings if the applicant failed to pay.

7. Following the applicant’s refusal on 13 November 2006 to accept the letter and sign the notice of receipt, K.R. resent it by ordinary mail.

8. On 20 November 2006 the applicant replied to K.R. with a letter, the relevant parts of which read:

“I do not owe you anything!

It is true that you gave 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 give it and that I had helped you a lot... Those were your words, remember!

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

...

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

9. On 13 December 2006 K.R. brought an action against the applicant, claiming repayment of the loan (totalling 14,000 euros (EUR)) which she had allegedly given to her in July and August 2004, on the basis of oral agreements. In order to prove that the loan existed, K.R. attached to her claim the letter written by the applicant on 20 November 2006 (see paragraph 8 above), as the only evidence in support of her claim.

10. On 22 January 2007 the applicant, allegedly unaware of the claim which had been brought against her, travelled to Vienna in order to obtain a visa for a trip to Namibia. She stayed in Vienna until 26 January 2007, when she obtained a visa, and flew to Namibia on the same day.

11. On 24 January 2007 the Maribor District Court forwarded K.R.’s claim to the applicant, advising her that she had thirty days to file her observations. Referring to section 277 of the Civil Procedure Act, the District Court warned the applicant that, in the event that she failed to reply within the given time-limit, it would grant the claim by default judgment.

12. On 25 January 2007 the postman tried (unsuccessfully) to serve the applicant with the court documents, including the claim, at her home address. He left in her mailbox a standard official delivery slip used in registered mail deliveries, which was printed on a thin piece of paper measuring 7.3 cm by 10 cm. The slip informed her that he would return the following day.

13. The following day, having not located the applicant at her address, the postman left another delivery slip of identical dimensions in her mailbox, informing her that she could collect the relevant correspondence at the post office within the next fifteen days. The delivery slip included a reference to sections 140 and 141 of the Civil Procedure Act (see paragraph 26 below).

14. As the applicant did not collect the mail from the post office within fifteen days, the letter in question was returned to the Maribor District Court by the post office, with a note indicating that the correspondence had not been collected, and that a delivery slip had been left in the applicant’s mailbox. Service was deemed to have been effected on 26 January 2007, when the delivery slip was left in her mailbox; therefore, the deadline for her to file any observations expired on 26 February 2007.

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

16. On 14 September 2007 the Maribor District Court issued a default judgment, allowing K.R.’s claim and ordering the applicant to pay her EUR 14,000 with default interest within fifteen days. The relevant reasoning of the District Court was as follows:

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

The plaintiff submitted with the claim a letter from the defendant dated 20 November 2006 (A3), from which it appears that she received ‘some money’ as a gift.

The submissions of the defendant in the letter dated 20 November 2006 - that she received some money as a gift - do not, of themselves, negate the plaintiff’s submissions that the plaintiff gave the money as a loan, yet the defendant was given the opportunity and the right to defend her position in the proceedings before the court by submitting a response to the claim [and] has failed to do so.

In addition, the submissions of the defendant in the letter dated 20 November 2006 that she would return the money which had been given to her (‘When I have it, I will gladly return your gift!’) cannot be ignored either.”

17. The default judgment was served on the applicant on 19 September 2007.

18. On 28 September 2007 the applicant lodged an appeal against the District Court’s default judgment and an application to reinstate the proceedings. She explained that she had failed to respond to the claim owing to her absence from Slovenia, submitted that she had not received the delivery slips allegedly left in her mailbox, and asked the court to set aside the decision and order the reservice of K.R.’s claim. As proof of her absence, she attached to both the appeal and the application to reinstate the proceedings a document issued by a travel company, L., confirming that she had been issued with a plane ticket for a flight from Munich to Windhoek on 26 January 2007 and a return ticket for 24 March 2007. She also attached copies of pages from her passport which contained a valid tourist visa for Namibia for the period between 26 January 2007 and 21 April 2007, and Namibian border control stamps confirming her entry to Namibia on 27 January 2007 and her departure on 24 March 2007.

19. On 13 December 2007 the Maribor District Court rejected the applicant’s application to reinstate the proceedings, on the basis that the application had been lodged outside the three-month time-limit. It held that the applicant should have found the delivery slips left in her mailbox by the end of March at the latest after she had returned from Namibia. Therefore, she should have lodged an application to reinstate the proceedings within three months of her return. The applicant appealed.

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

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

22. On 11 November 2010 the Supreme Court dismissed the applicant’s appeal on points of law. It held that the conditions for issuing a default judgment had been fulfilled. In respect of the issue of whether or not the evidence used by the plaintiff contradicted the submissions set out in the claim, the Supreme Court held as follows:

“It appears from the evidence that the plaintiff attached to the claim [the applicant’s letter of 20 November 2006 - see paragraph 8 above] that the letter referred to a gift as well as to the return of a gift. It should be stressed that, for the purpose of issuing a default judgment, it is not important that the evidence submitted confirms the plaintiff’s allegations (in the present case, allegations concerning a loan). It is only important that the allegations contained in the claim do not contradict either the evidence which has been submitted or generally known facts. Since it cannot be concluded from the letter that [the money] was not a loan but a gift, the issuing of the default judgment was correct.”

23. On 17 January 2011 the applicant lodged a constitutional complaint.

24. On 22 May 2012 the Constitutional Court dismissed the applicant’s constitutional complaint by referring to section 55(b) of the Constitutional Court Act (see paragraph 30 below).

25. On an unknown date after the decision of 14 September 2007 became final, K.R. instituted enforcement proceedings against the applicant. She later withdrew the application for enforcement after the applicant paid her the sum of EUR 4,000.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Civil Procedure Act

26. The relevant provisions of the Civil Procedure Act in force at the relevant time (consolidated version published in the Official Gazette no. 36/2004) regarding the service of court documents read:

Section 140

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

...”

Section 141

“If court documents cannot be served in the manner prescribed in the preceding section, service on a natural person shall be effected by delivering the court documents to the court which has ordered service or, in case of service by mail, to the post office nearest to the intended recipient’s permanent residence, and by leaving on the door or in the accessible mailbox of the intended recipient’s permanent residence a notice indicating the place where the documents have been left, including a reference to the fifteen-day time-limit within which they are to be collected. The person attempting to effect service shall state on the notice and on the documents to be served the reasons for such service and the day on which the notice was left for the intended recipient, and shall put his signature thereon.

If the intended recipient fails to collect the documents within fifteen days, service shall be deemed to have been effected on the day that the notice was left on his door or in his accessible mailbox, and he shall be advised thereof in the notice.

...”

Section 142

“Claims, court decisions against which a special appeal or an extraordinary legal remedy is allowed, and warning notices regarding payment of court fees in respect of a claim shall be personally served on a party, ...

...

If the intended recipient of a document which is to be personally served is not located at the address for service, the person attempting to effect service shall enquire as to when and where the intended recipient can be located, and shall leave with an adult member of the household or with any other person indicated in [section 140], and in accordance with the conditions laid down in that section, a written notice requesting the intended recipient to be present at a certain time and date at either his place of residence or place of work in order to receive the document.

If service of the notice mentioned in the preceding subsection is not possible in the manner prescribed above, the person attempting to effect service shall leave the notice in the main mailbox for the building, in the accessible mailbox or on the door.

If, afterwards, the person attempting to effect service still cannot trace the intended recipient, he should act in accordance with section 140 or 141 of this Act, and service shall be deemed to have been effected.

...”

Section 143

“If it is established that the intended recipient is absent and that the persons indicated in [section 140] cannot deliver the document to him in time, the document shall be returned to the court with an indication of the whereabouts of the intended recipient.”

27. The relevant provisions of the Civil Procedure Act in force at the relevant time regarding default judgments read:

Section 277

“The defendant shall file his defence within 30 days of the claim being served on him, unless otherwise provided for by the present Act.

The defendant shall be instructed by the court that, in the event of his failure to file a defence within the time-limit set down in the first paragraph of this section... the court shall give a judgment allowing the claim (default judgment).”

Section 318

“If the defendant has failed to file a defence within the time-limit provided for in section 277 of the present Act, the court shall give a judgment allowing the claim (default judgment), provided that:

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

2. the claim does not contain any element which the parties may not dispose of;

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

4. the facts upon which the claim is based do not contradict the evidence adduced by the plaintiff or judicial knowledge.

The issuing of a default judgment shall be postponed if prior enquiries need to be made with regard to the circumstances referred to in the preceding subsection.

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 notice as to any appeal.

...

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

...”

Section 338

“A judgment may be challenged on the following grounds:

1. a serious violation of civil procedure provisions;

2. erroneous or incomplete determination of the facts;

3. a violation of substantive law.

A default judgment may not be challenged on the grounds of the erroneous or incomplete determination of the facts.

...”

28. Two types of legal remedies are envisaged in situations where a default judgment has been issued and the defendant was unaware of an action having been brought against him. If the defendant argues that service of the action has not been effected in accordance with the law, he may file an appeal against the default judgment on the grounds that the conditions for giving a default judgment have not been fulfilled owing to a serious violation of procedural rules (see section 338 cited above). If, on the contrary, service has been effected in accordance with the law, but the defendant claims that, for justified reasons, he was unaware of service, he may lodge an application to reinstate the proceedings, as provided for by section 116 of the Civil Procedure Act. Such an application can be lodged within fifteen days of the date on which the reasons for the defendant’s failure to respond to the claim ceased to exist, but no later than three months after the expiry of the deadline for responding to the action.

B. Decisions of the higher courts regarding service of documents

29. According to the case-law of the Supreme Court (for example, decisions no. II Ips 242/2008 of 23 October 2008; no. II Ips 344/2009 of 17 September 2009; no. II Ips 170/2008 of 11 November 2010; and no. VIII Ips 236/2009 of 7 June 2011), section 143 of the Civil Procedure Act (see paragraph 26 above) applies solely to situations where the absence of the addressee is such as to prevent him from acquainting himself with the court documents in time, and the person attempting to effect service is aware that the addressee’s absence is of that nature. Therefore, if the person attempting to effect service is aware that the intended recipient will not receive the documents in time, but nonetheless attempts to effect service in that way, such service will constitute a violation of the rules on civil procedure. If, on the other hand, the person attempting to effect service is unaware of the fact that the intended recipient will not be able to receive the court documents in time, that assumed service will not constitute a violation of the procedural rules, notwithstanding the fact that the intended recipient was not able to acquaint himself with the correspondence in time to respond to the court documents within the prescribed time-limit.

C. The Constitutional Court Act

30. The relevant parts of section 55b of the Constitutional Court Act (consolidated version published in the Official Gazette no. 64/2007) read:

“(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 determined the rights, obligations or legal interests of the complainant;

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

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

- if it was not lodged in time;

...

(2) A constitutional appeal shall be considered:

- 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.

...”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

31. The applicant complained that she had not been properly served with the claim which had been brought against her, and that the reasoning of the domestic courts in the default judgment, as well as in the decisions dismissing the legal remedies she had attempted, was arbitrary and insufficient. She relied on Article 6 § 1 of the Convention, the relevant parts of which read:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

A. Admissibility

32. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicant

33. The applicant complained that she had not been properly served with the action brought against her on 13 December 2006. She argued that, upon her return from Namibia on 24 March 2007, she had not found any of the delivery slips allegedly left in her mailbox, and that the only mail she had received in respect of the proceedings was the default judgment which had been served on her on 20 September 2007. She referred to the fact that both she and her representative had, on occasion, had experience of delivery slips mistakenly being placed in the mailbox of a third party instead of that of the correct addressee.

34. She maintained that section 143 of the Civil Procedure Act (see paragraph 26 above) applied to her situation. She challenged its interpretation by the domestic courts (see paragraph 29 above), which had held that the application of section 143 was dependent on whether or not the person attempting to effect service was aware of the absence of the intended recipient. She submitted that, because the application of section 143 was dependent on the diligence of the person attempting to effect service, the domestic court should, in a situation such as hers, where she had proved, by providing relevant documents that she had been absent, have upheld her appeal and set aside the default judgment.

35. She further disagreed with the Government’s suggestions that she had failed to succeed in her application to reinstate the proceedings because she had failed to attach a copy of her (belated) defence to the application (see paragraph 44 below). She argued that her application had never had any prospect of success, as the absolute time-limit of three months had already expired by the time that she had been served with the default judgment and had found out about the proceedings.

36. Moreover, she submitted that the conditions for issuing a default judgment had, in any case, not been satisfied, regardless of the issue of whether or not she had been properly served with the claim. She also argued that the fourth condition of the first subsection of section 318 of the Civil Procedure Act (see paragraph 26 above) had not been fulfilled, namely that the facts upon which the claim was based should not contradict the evidence adduced by the plaintiff. She stressed that the sole piece of evidence attached to the claim had been a letter which she had written in response to K.R. on 20 November 2006, in which she had explicitly denied that the money had been given to her as a loan, and had maintained that she had been given the money as a gift. She further suggested that the Supreme Court’s reasoning about that matter also contradicted itself.

37. Lastly, the applicant stressed that she had in no way waived her right to participate and defend herself in the proceedings, and that she had also not been given the opportunity to obtain a fresh determination of her case.

(b) The Government

38. The Government argued that, in contrast with the case of Dilipak and Karakaya v. Turkey (nos. 7942/05 and 24838/05, 4 March 2014), the applicant had been correctly served with the action which had been brought against her, and suggested that the Court should conclude that, in failing to respond to the claim, she had unequivocally waived her right to participate in the proceedings.

39. They stressed that service had been effected in compliance with the applicable provisions and with all due diligence. They dismissed the applicant’s allegations that she had not found any delivery slips in her mailbox upon her return from Namibia, submitting that the person who had effected service had noted on the part of the delivery slip which had been sent back to the court that he had left a delivery slip in the applicant’s mailbox.

40. They further noted, in respect of the issue of whether or not the person effecting service should have known that the applicant had been absent, and in relation to the application of section 143 of the Civil Procedure Act (see paragraph 26 above), that the applicant had provided no arguments to support the assumption that that person would have known about her extended absence from, for example, the accumulation of mail in her mailbox. The applicant had also not informed the post office that she would be absent for an extended period of time, and had not authorised another person to receive mail on her behalf.

41. Moreover, in their view, the applicant could have anticipated that an action was going to be brought against her, since K.R. had warned her in her letter of 11 November 2006 that she intended to initiate court proceedings if the applicant did not return her money. Therefore, the applicant could have been expected to make proper arrangements for her mail to be redirected in her absence.

42. The Government further emphasised that the delivery slips were authentic documents which confirmed that service had been effected. Although it had been open to the applicant to contest that assertion, in their view she had failed to provide any evidence to support her allegations. For example, she had not asked for a hearing about that issue, or for the person who had effected service or a third party to be examined by the court. She had also failed to explain how the collection of mail from the mailbox had been dealt with during her absence, and to provide other relevant details, such as whether or not she lived alone at that address and whether or not she lived in an apartment building with several mailboxes. Lastly, she had also not provided any evidence to confirm that she had actually stayed in Vienna immediately before flying to Namibia, and had not instead returned home between 22 January 2007 (when she had applied for a visa) and 26 January (when she had obtained it).

43. In that connection, they maintained that if all it took to contest effective service was for a party merely to state that they had not received any notice of service, then no form of service other than personal service would be viable, and parties could therefore easily evade service of legal documents. That would endanger the right to judicial protection and the right to a trial without undue delay.

44. In addition, they also argued that the applicant could not have succeeded in her application to reinstate the proceedings, because she had not attached her (belated) defence to it.

45. Finally, the Government dismissed the applicant’s allegations that the reasoning behind the decisions of the domestic courts had been arbitrary and insufficient as to whether or not the conditions for issuing a default judgment had been satisfied. They considered that the first-instance court had given sufficient reasons for its decision. They referred to the fact that, in considering the letter which the applicant had written in response to K.R. on 20 November 2006 (see paragraph 8 above) as evidence, the domestic court had also taken note of the applicant’s statements and arguments in respect of the claim, as she had presented them in the letter. Furthermore, the higher courts had also duly responded to the arguments raised in her appeals, by stating why they considered that she had been correctly served with the action and why the claim did not contradict the evidence produced by the plaintiff.

2. The Court’s assessment

(a) General principles

46. The applicant alleged that, owing to the fact that she had not been properly served with the claim which had been brought against her, she had been deprived of any proper opportunity to participate in the proceedings. She also alleged that the reasoning of the domestic courts was arbitrary and insufficient. The Court is therefore called upon to examine whether or not those facts compromised the applicant’s right to a fair hearing under Article 6 of the Convention, and, in particular, whether or not the principles of an adversarial hearing and equality of arms were respected in those proceedings.

47. The Court reiterates that the principle of equality of arms, which is one of the elements of the broader concept of a fair hearing, requires each party to be given a reasonable opportunity to present its case under conditions that do not place it at a substantial disadvantage vis-à-vis its opponent (see, among many other authorities, Nideröst-Huber v. Switzerland, 18 February 1997, § 23, Reports of Judgments and Decisions 1997-I; Kress v. France [GC], no. 39594/98, § 72, ECHR 2001-VI; Yvon v. France, no. 44962/98, § 31, ECHR 2003-V; and Gorraiz Lizarraga and Others v. Spain, no. 62543/00, § 56, ECHR 2004-III). It further emphasises that it is for the national authorities to ensure that the requirements of a “fair hearing” are met in each individual case (see Dombo Beheer B.V. v. the Netherlands, 27 October 1993, § 33, Series A no. 274).

48. It observes that Article 6 § 1 of the Convention does not provide for a specific form of service of documents (see Bogonos v. Russia (dec.), no. 68798/01, 5 February 2004). However, the general concept of a fair trial, encompassing the fundamental principle that proceedings should be adversarial (see Ruiz-Mateos v. Spain, 23 June 1993, § 63, Series A no. 262), requires that all parties to civil proceedings should have the opportunity to have knowledge of and comment on the observations filed or evidence adduced with a view to influencing the court’s decision (see Lobo Machado v. Portugal, 20 February 1996, § 31, Reports 1996-I). Above all, that presupposes that the person against whom proceedings have been initiated should be informed of that fact (see Dilipak and Karakaya, cited above, § 77). If court documents, including summonses to hearings, are not served in person, then an applicant might be prevented from defending himself in the proceedings (see Ozgur-Karaduman v. Germany (dec.), no. 4769/02, 26 June 2007, and Weber v. Germany (dec.), no. 30203/03, 2 October 2007).

49. The Court further notes that Article 6 requires and allows the States to organise their legal systems in a manner which facilitates expeditious and efficient judicial proceedings (see, for instance, Boddaert v. Belgium, 12 October 1992, § 39, Series A no. 235-D), including provision for the possibility of issuing default judgments. However, that cannot be done at the expense of other procedural guarantees, notably the principle of equality of arms (see, among many other authorities, Dombo Beheer B.V., cited above, § 33, and Ankerl v. Switzerland, 23 October 1996, § 38, Reports 1996-V).

50. The Court reiterates that it decided in the case of Dilipak and Karakaya (cited above, §§ 76-80) to apply the principles initially developed in respect of criminal trials in absentia to civil proceedings as well. In that case, it referred in particular to the rule that, although proceedings that took place in the accused’s absence were not, of themselves, incompatible with Article 6 of the Convention, a denial of justice nevertheless occured, where a person convicted in absentia was subsequently unable to obtain a fresh determination on the merits of the charge, in respect of both law and fact, from a court which had given him a hearing, in circumstances where it had not been established that he had waived his right to appear and to defend himself (see, for instance, Colozza v. Italy, 12 February 1985, § 29, Series A no. 89; Einhorn v. France (dec.), no. 71555/01, § 33, ECHR 2001-XI; Krombach v. France, no. 29731/96, § 85, ECHR 2001-II; Somogyi v. Italy, no. 67972/01, § 66, ECHR 2004-IV; and Sejdovic v. Italy [GC], no. 56581/00, § 82, ECHR 2006-II).

51. The Court also reiterates that neither the letter nor the spirit of Article 6 of the Convention prevent a person from waiving, of his or her own free will, either expressively or tacitly, the safeguards of a fair trial (see Hermi v. Italy [GC], no. 18114/02, § 73, ECHR 2006-XII). However, such a waiver must be established in an unequivocal manner, must be attended by the minimum safeguards commensurate with its importance (see Poitrimol v. France, 23 November 1993, § 31, Series A no. 277-A), and must not run counter to any important public interest (see Sejdovic, cited above, § 86).

52. Finally, the Court reiterates that its task is not to review the relevant law and practice in abstracto, but to determine whether or not the manner in which they were applied to, or affected the applicant, gave rise to a violation of the Convention (see, mutatis mutandis, Padovani v. Italy, 26 February 1993, § 24, Series A no. 257-B).

(b) Application of those principles to the present case

53. It follows that the questions to be addressed in the present case are: (i) whether or not the authorities were diligent in informing the applicant of the proceedings, and whether or not she can be considered to have waived her right to appear before the court and to defend herself; and, if the response is negative, (ii) whether or not the domestic law provided the applicant with the appropriate means to secure a fresh adversarial hearing, once she learnt of the default judgment (see, Dilipak and Karakaya, cited above, § 80).

54. The Court observes in respect of the first question, that the two attempts to effect personal service of the claim on the applicant at her home address were made at the beginning of the applicant’s two-month absence. Following the second unsuccessful attempt, service was deemed to have been effected on 26 January 2007 (see paragraph 14 above). Such service was effected in compliance with the applicable provisions of the Civil Procedure Act in force at the relevant time (see paragraph 26 above).

55. The Court does not wish to question the compatibility with the Convention of the provisions on personal notification as set out in the above cited act. However, under the circumstances of the present case, the Court does have certain doubts whether such manner of service sufficed to secure that the applicant had indeed been apprised of the proceedings.

56. Recalling the letter which K.R. sent to the applicant (see paragraph 6 above), the Court agrees with the Government that the applicant might have expected that an action could be lodged against her. Therefore, in view of the fact that she planned to be absent from her home for two months, it would not be unreasonable to expect from her that she would take some measures to ensure the receipt of her mail in order to be able to comply with the requisite time-limits laid down in the domestic law, in case of institution of proceedings against her (see, for instance, Hennings v. Germany, 16 December 1992, § 26, Series A no. 251-A, and Maas v. Germany (dec.), no. 71598/01, 15 September 2005).

57. Nonetheless, despite the lack of diligence on the applicant’s side the Court cannot conclude that the applicant waived her right to defend herself in the proceedings.

58. It reiterates that the main precondition for waiving a right is that the person concerned is aware of the existence of the right in question, and therefore also aware of the related proceedings (see Dilipak and Karakaya, cited above, § 87).

59. The Court does not wish to doubt the veracity of the Government’s submission that the delivery slips had been left in the applicant’s mailbox. However, it also cannot consider the applicant’s arguments that she did not find the delivery slips in her mail upon her return as entirely implausible.

60. The same is true in respect of the Government’s suggestion that the applicant might have returned to her home at some point between 22 and 26 January 2007 (see paragraph 42 above). It is not for the Court to speculate on that matter, especially as the Government have not submitted any evidence in support of their suggestion.

61. Lastly, the applicant’s statements in the letter she sent in reply to K.R. indicated that she contested K.R.’s allegations regarding the nature of the monetary transaction between them.

62. Accordingly, it remains to be determined whether or not the applicant was, with sufficient certainty, afforded an opportunity by the domestic law to have her case re-examined (see Dilipak and Karakaya, cited above, § 88).

63. The Court observes that the applicant attempted two legal remedies in order to achieve that aim: an application to reinstate the proceedings, and an appeal against the default judgment (see paragraph 18 above). She lodged both remedies immediately after the receipt of the judgment, namely within eight days.

64. In respect of the application to reinstate the proceedings, the Court notes that, in the present case, this legal remedy could not have provided the applicant with an opportunity to obtain a fresh examination of her case.

65. It observes that the absolute time-limit of three months for lodging the application to reinstate the proceedings had already expired on 26 May 2007 while the applicant was served with the first-instance court’s decision only on 19 September 2007 (see paragraph 17 above). The judicial proceedings hence lasted four more months after the expiry of the absolute time-limit while it took the first-instance court altogether almost seven months, after the deadline for the applicant to file observations had expired, to issue a simple default judgement.

66. In view of at least certain doubts as to whether the applicant had truly been apprised of the proceedings, the Court considers such a short absolute time-limit as too strict. It also notes that, had the absolute time-limit not already expired, the application to reinstate the proceedings would be lodged well within the relative time-limit of fifteen days, as foreseen by section 116 of the Civil Procedure Act (see paragraph 28 above).

67. In respect of the appeal against the default judgment, the Court observes that such a judgment may only be challenged on the grounds of a serious violation of procedural rules (including a violation of service rules) or a violation of substantive law. However, it cannot be challenged on the grounds of the erroneous or incomplete determination of facts (see paragraph 26 above). Accordingly, the review is limited to the question of whether or not the formal conditions for issuing a default judgment were satisfied, including whether or not the party was properly served with the claim or summons to a hearing.

68. The Court considers that the above provision was applied too strictly in the applicant’s case.

69. It is open to certain doubt as to whether or not the applicant had any realistic means of proving a negative fact, namely the absence of the delivery slips in the mailbox. The Court furthermore finds it difficult to follow the Government’s arguments (see paragraph 40 above) concerning the application of section 143 of the Civil Procedure Act (see paragraph 26 above) to the present case. The Court cannot see how the applicant could have proved knowledge on the part of the postman regarding her absence. Both attempts to serve her with the claim were made only a few days after her departure, so it is unlikely that there would have been any accumulation of mail in her mailbox to indicate that she was away. Even though the applicant can, on the one side, be criticised for lack of diligence, the Government have, on the other side, not argued, let alone shown, that she was obliged under domestic law to authorise a third party to receive mail on her behalf (contrast Weber, cited above) or to notify the post office of her prolonged absence.

70. In the Court’s view, the domestic courts hence took an excessively formalistic approach, both in assessing whether or not the applicant had been properly apprised of the proceedings instituted against her, and in dismissing her appeal against the default judgment.

71. The Court agrees that the applicant’s conduct demonstrates a certain lack of diligence. However, the consequences which the domestic judicial authorities attributed to it are disproportionate, having regard to the prominent place which the right to a fair trial holds in a democratic society within the meaning of the Convention (see, also, F.C.B. v. Italy, 28 August 1991, § 35, Series A no. 208-B).

72. In view of the above, the Court is therefore unable to accept that the applicant waived her right to participate in the proceedings and that she was given a fair opportunity to secure a fresh examination of the merits of her case.

73. Accordingly, there has been a violation of Article 6 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

74. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

75. The applicant claimed 5,696.62 euros (EUR) in respect of pecuniary damage and EUR 10,000 in respect of non-pecuniary damage.

76. The Government contested the claims as unspecified, and argued that no causal link existed between the alleged violation of Article 6 and the pecuniary damage.

77. The Court does not discern any causal link between the violation found and the pecuniary damages sought; it therefore rejects this claim. Concerning non-pecuniary damage, the Court considers that the applicant can be considered to have suffered a certain amount of distress on account of the violation found. Deciding on an equitable basis, it awards the applicant EUR 2,000 in this respect.

B. Costs and expenses

78. The applicant also claimed EUR 2,690.95 for costs and expenses incurred before the domestic courts, and EUR 1,649.36 for those incurred before the Court.

79. The Government contested the claim as unspecified and excessive.

80. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,869 to cover costs under all heads.

C. Default interest

81. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:

(i) EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 3,869 (three thousand eight hundred and sixty-nine euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 8 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Angelika Nußberger
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> AZDAJIC v. SLOVENIA - 71872/12 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2015] ECHR 864 (08 October 2015) URL: http://www.bailii.org/eu/cases/ECHR/2015/864.html Cite as: [2015] ECHR 864