Effective judicial protection in the procedure for the verification of savings on the basis of the AREECtHRJ

In case No. U-I-502/18 (Decision dated 9 December 2021, Official Gazette RS, No. 1/22), the Constitutional Court decided, upon the request of the Administrative Court, on the constitutionality of the third sentence of the first paragraph of Article 146 of the Civil Procedure Act, insofar as it relates to an administrative dispute against a decision of the Succession Fund of the Republic of Slovenia in the procedure for the verification of unpaid old foreign-currency savings on the basis of the Act Regulating the Enforcement of the European Court of Human Rights Judgment in Case No. 60642/08 (hereinafter referred to as the AREECtHRJ). The challenged provision, which applies in an administrative dispute on the basis of the first paragraph of Article 22 of the Judicial Review of Administrative Acts Act, provides that if a person authorised to receive court documents in the Republic of Slovenia is not appointed within the time limit set by the court, the action must be rejected. This concerns cases in which the plaintiff or his or her legal representative who is abroad but does not have a representative in the Republic of Slovenia must appoint a person authorised to receive court documents in the Republic of Slovenia in accordance with Article 146 of the Civil Procedure Act when filing an action. The applicant is of the opinion that the challenged provision interferes with the right to judicial protection in an excessively formalistic manner.

The Constitutional Court emphasised that the challenged provision entails a sanction for failure to comply with the procedural requirement of appointing a person authorised to receive court documents. If a plaintiff who is abroad fails to appoint a person authorised to receive court documents within the set time limit, the court rejects the action. When assessing whether there exists an interference with a human right, the degree (intensity) of the influence of the negative consequence that the disregard of a statutory provision has on that right needs to be taken into account. Rejecting the action will lead to the court not considering the merits of the action. As the rejection of an action does not constitute a decision on the merits of the case, the plaintiff may, in principle, lodge such action again if the procedural requirements are met. The AREECtHRJ, however, has set a preclusive time limit for the submission of a request for the verification of old foreign-currency savings. By issuing a decision rejecting the action, the possibility of obtaining a substantive judicial review of the decision taken in the verification procedure is, in fact, irretrievably lost as a result of the preclusive time limit for lodging an application in the administrative procedure.

The Constitutional Court held that the sanction of the rejection of the action, insofar as it relates to an administrative dispute against a decision of the Succession Fund of the Republic of Slovenia in the procedure for the verification of unpaid old foreign-currency savings on the basis of the AREECtHRJ, entails an interference with the right to judicial protection determined by the first paragraph of Article 23 of the Constitution and the right to a legal remedy determined by Article 25 of the Constitution. Having established that the objectives of the challenged provision (i.e. the acceleration of judicial proceedings, ensuring the right to a trial without undue delay, and ensuring an effective judicial system as a whole) are constitutionally admissible, the Constitutional Court assessed, on the basis of a strict proportionality test, that the interference in question, although appropriate and necessary, is not proportionate in the narrower sense, because the challenged provision entails an excessive interference with the mentioned two rights. In the view of Constitutional Court, the benefits of the institution of appointing a person authorised to receive court documents do not, in the given circumstances, outweigh the gravity of the interference with the plaintiff’s right to judicial protection and the right to a legal remedy in the event of the rejection of the action. The Constitutional Court emphasised that in determining whether an interference is proportionate, special attention must be devoted to the special position of the proceedings under the AREECtHRJ and the circumstances in which this Act was adopted. It took into consideration that the purpose of an administrative dispute against decisions adopted in procedures for the verification of unpaid old foreign-currency savings on the basis of the AREECtHRJ is also to remedy a violation of the right to an effective remedy determined by Article 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, as established by the European Court of Human Rights in its judgment in the case of Ališić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and Macedonia, dated 16 July 2014. In view of the above, the Constitutional Court established that the statutory provision is unconstitutional to the extent challenged.