European Court of Human Rights

SECOND SECTION

Application no. 75381/10
Zoran KOMATINOVIC
against Serbia
lodged on 25 November 2010

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Zoran Komatinovic, is a Serbian national who was born in 1953 and lives in Niš. He was represented before the Court by Mr V. Ilic, a lawyer practising in the same town.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant was dismissed by his employer on 22 May 2006.

On 7 June 2006 the applicant lodged a claim with the Municipal Court (Opštinski sud) in Niš, seeking annulment of this decision and reinstatement, as well as legal costs.

Following a remittal, on 13 October 2008 the Municipal Court ruled in favour of the applicant.

On 19 February 2009 the District Court (Okružni sud) in Niš reversed this judgment and rejected the applicant’s claim.

On 14 October 2009 the Supreme Court (Vrhovni sud) rejected a further appeal by the applicant on points of law (revizija).

As evidenced by a certificate of receipt (dostavnica za licno dostavljanje pismena), the applicant received this judgment on 14 December 2009.

On 12 January 2010 the applicant lodged a constitutional appeal.

On 17 March 2010 the Constitutional Court dismissed this constitutional appeal as out of time (neblagovremena ustavna žalba). In doing so, it held that the relevant judgment had been served on the applicant on 7 December 2009 and therefore that the constitutional appeal had been lodged outside the statutory thirty-day time-limit (see Article 84 of the Constitutional Court Act under “Relevant domestic law” below). This decision was served on the applicant on an unspecified date in August 2010.

On 20 August 2010 the applicant requested the Constitutional Court to withdraw its initial decision and examine his constitutional appeal on the merits, in view of the copy of the relevant certificate of receipt enclosed with the letter.

B.  Relevant domestic law

1.  The Constitution of the Republic of Serbia 2006 (Ustav Republike Srbije; published in OG RS no. 98/06)

The relevant provision of the Constitution reads as follows:

Article 170

“A constitutional appeal may be lodged against individual decisions or actions of State bodies or organisations exercising delegated public powers which violate or deny human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies for their protection have already been exhausted or have not been prescribed.”

2.   Constitutional Court Act (Zakon o Ustavnom sudu; published in the Official Gazette of the Republic of Serbia no. 109/07)

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.”

COMPLAINT

The applicant complains under Articles 6 and 13 of the Convention that he was unlawfully denied access to the Constitutional Court of Serbia because that court erroneously viewed his appeal as having been lodged outside the relevant time-limit.

QUESTION TO THE PARTIES

1.  Was the applicant’s right of access to court, guaranteed by Article 6 § 1 of the Convention, respected in view of the Constitutional Court’s finding that his 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)?