Case number: Up-47/94. ECLI: ECLI:SI:USRS:1996:Up Challenged act: Supreme Court ruling No. U 1081/93-6 from 20 April 1994

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1 Case number: Up-47/94 ECLI: ECLI:SI:USRS:1996:Up Challenged act: Supreme Court ruling No. U 1081/93-6 from 20 April 1994 Operative provisions: 1. The ruling of the Supreme Court is abrogated ab initio. 2. The case is remanded to the Supreme Court for new proceedings. 3. The Supreme Court should take the complainant's petition as an action filed in due time. Abstract: Erroneous denotation of a petition cannot harm the complainant. By refusing to consider complainant's petition because he did not denote it as an "action", the Supreme Court violated his rights under Article 22 of the Constitution. Thesaurus: Citizenship, acquiring. Presumption of innocence, action. Administrative lawsuit, filing. Equal protection of rights. Legal basis: Constitution, Article 22 Administrative Lawsuit Act (ZUS), Articles 23, 24, 25, 60 Civil Procedure Act (ZPP), Article 113 Constitutional Court Act (ZUstS), Para. 1 of Article 59, Para. 1 and 2 of Article 60 Cases joined: PDF Format: Up-47-94_eng.pdf Full text: Up-47/94 12 December 1996 D E C I S I O N At a session held on 12 December 1996 in proceedings to decide upon a constitutional complaint made by R.D. and N.G., the Constitutional Court d e c i d e d :

2 1. The ruling of the Supreme Court is abrogated ab initio. 2. The case is remanded to the Supreme Court for new proceedings. 3. The Supreme Court should take complainant's petition as an action filed in due time. R e a s o n i n g : A. 1. In his constitutional complaint entered 10 June 1994, complainant challenged Supreme Court ruling No. U 1081/93-6 dated 20 April 1994 (hereinafter: the "challenged ruling"), by which the Supreme Court rejected as untimely his suit brought in administrative dispute against Ministry of Interior decision No. 0011/11-XVII /3 dated 11 June 1993, which had dismissed complainant's application for grant of citizenship. 2. In the reasoning of the challenged ruling, the Supreme Court held: "According to Para. 1 of Article 24 of the Administrative Lawsuit Act... an action shall be brought within thirty days after the administrative decision was served on the party filing an action. Plaintiff was served the challenged decision on 30 June 1993, as is evident from the administrative files. The time limit set for bringing an action began to run on 1 July 1993 and expired on Friday, 30 July Plaintiff brought his charge to the Supreme Court of the Republic of Slovenia on 1 September 1993, so that he made an untimely statement at the Nova Gorica Unit of the Basic Court in Nova Gorica (hereinafter: basic court). Otherwise, plaintiff first brought the petition, that he did not denote as being an action, to the basic court on 7 July Legal instructions in the challenged decision were clear and unequivocal." 3. The constitutional complaint alleges that complainant received the Ministry decision on 30 June 1993 and that he brought an administrative lawsuit already on 7 July 1993, pursuant to the legal instructions given by the basic court. Yet he allegedly addressed his petition to the Supreme Court as administrative lawsuit or petition for the review of legality instead of "action". Complaint opines that legal instructions appended to the cited decision of the Ministry are not so unequivocal for a lay party to understand, as the Supreme Court states in the challenged resolution. He argues that he made inquiries at the basic court about his case in the beginning of September There they told him that they did not send his case to the Supreme Court in Ljubljana since it was incorrectly addressed. He sought immediate legal aid and on 1 September 1993 he again filed an action against the Ministry decision, which the Supreme Court later rejected. Complainant believes that the basic court should have sent his action to the Supreme Court despite the improper address, and that court, pursuant to Article 109 of the Civil Procedure Act (hereinafter: ZPP), should have returned his petition to him for correction, determining a time limit within which he could re-file his action. According to the provision of Para. 3 of Article 109 of the ZPP, a petition so corrected is considered to have been properly filed with the court when originally filed, here 7 July Complainant argues that the Supreme Court thereby violated his constitutional right to equality before the law (Article 14 of the Constitution), right to equal protection of rights (Article 22), right to judicial protection (Article 23) and right to legal remedy (Article 25). He proposes that the Constitutional Court 1) establish that the Supreme Court acted illegally by rejecting in the challenged resolution his action filed 7 July 1993 and supplemented and corrected respectively on 1 September 1993, 2) reject the challenged ruling, remanding the case to new proceedings or to act within the scope of its competencies.

3 4. The senate of the Constitutional Court accepted the constitutional complaint for consideration at a session held on 4 April The constitutional complaint was, according to Article 56 of the Constitutional Court Act (Official Gazette of the RS, No. 15/94 - hereinafter: ZUstS), submitted to the Supreme Court for its reply. In response, the Supreme Court clarified that it was unaware of plaintiff's petition (filed with the basic court already on 7 July 1993) until it received on 3 September 1993 an enclosure to the action, made as a deposition Šat the court] on 1 September The Supreme Court established that complainant nonetheless addressed the petition to the Supreme Court - denoting it as administrative lawsuit, yet with unclear contents. Because the instructions as to legal remedies appended to the challenged decision dated 11 June 1993 were proper and clear, the Supreme Court did not view the petition dated 7 July 1993 (filed directly with a court with no jurisdiction and thus not made as a deposition) as a suit filed in due time. In the challenged ruling, it also did not consider the reasons why the suit was made as a statement Šgiven at the court] only on 1 September 1993, after the time limit set for bringing an action expired. In the Supreme Court's view, according to Article 25 of the Administrative Lawsuit Act, in order for an action to be considered timely, it must be filed with the Supreme Court as a court with jurisdiction, or to be sent to that court by mail, or given as a statement at that court or any other court (in the instant case at the stated unit). B. - I. 5. Procedure governing judicial review of administrative disputes is determined by the Administrative Lawsuit Act (Official Gazette of the SFRY, No. 4/77 and 60/77 - hereinafter: ZUS). Where that statute has no governing procedural provisions, ZPP provisions apply (Article 60 of the ZUS). 6. The ZUS provides that judicial review of administrative decisions is commenced by an action (Article 23 of the ZUS), which shall be filed within thirty days after an administrative act is served on the party bringing an action (Para. 1 of Article 24 of the ZUS). According to Para. 1 of Article 25 of the ZUS, the action shall be filed with the Supreme Court directly, or sent to the Supreme Court by mail, or made as a statement at the Supreme Court or any other regular court. An action is considered to be filed with the court on the day when it was registered at the post-office, or when it was made as a statement at the court. If the action was not filed with the court but with some other organ and arrives at the court having jurisdiction after expiration of the time limit set for bringing an action, the petition is considered timely if the filing with some other organ can be ascribed to an obvious mistake by the submitter (Para. 2 of Article 25 of the ZUS). 7. Since the ZUS does not contain any other provisions on time limits and timeliness, provisions of the ZPP apply. Para. 1 of Article 113 of the ZPP provides that a petition, bound by a time limit, is considered timely if it is filed with a competent court before the time limit expires. However, if the petition bound by a time limit was filed with or sent to a court not having jurisdiction before the time limit expires, and arrives at the court having jurisdiction after the expiration of the time limit, it is deemed timely if the filing with a non- competent court could be ascribed to ignorance or clear mistake of the submitter (Para. 7 of Article 113 of the ZPP). B. - II. 8. Complainant received the Ministry decision on 30 June In response, he brought a petition to the basic court on 7 July 1993 which he named: "Administrative lawsuit or the review of legality of Ministry of Interior decision No. 0011/11-XVII /3 from 11

4 June 1993". He brought his petition in due time but to a court with no jurisdiction. Instead of sending the petition to the Supreme Court, the judge of the basic court summoned the complainant to come on 1 September 1993 to the court. Thus, on that day, complainant brought a new action made as a statement given at court. Together with the enclosures the Supreme Court received it (the petition from 7 July 1993) in fact on 3 September 1993 (after the thirty-day time limit expired). 9. The Constitutional Court determined that the situation in the instant case existed which was governed by the cited Para. 7 of Article 113 of the ZPP. The complainant indeed had denoted his petition dated 7 July 1993 as "Administrative lawsuit or review of the legality of Ministry of Interior decision No. 0011/11- XVII /3 dated 11 June 1993", but he had enclosed with his petition the challenged decision of the Ministry addressing it to "the Supreme Court of the Republic of Slovenia, Ljubljana". The Constitutional Court holds that from the title, enclosures to the petition, and also partially from unclear contents, it is undoubtedly evident that the petition dated 7 July 1993 represents an action. The fact that the complainant did not denote his petition as "action", to what reason the Supreme Court refers in the challenged ruling, is therefore irrelevant. A wrong denotation of petition should not harm the complainant. The Supreme Court should have in such a case assessed whether such a filing of a 7 July 1993 action with the court with no jurisdiction is to be ascribed to ignorance or clear mistake of the submitter. Since it did not do this, or it did not take the complainant's action from 7 July 1993 into consideration, it violated the complainant's constitutional right from Article 22 of the Constitution. B. - III. 10. Complainant does not allege a clear mistake in his constitutional complaint, although he refers to his ignorance,c asserting that legal instructions appended to the Ministry decision were not as unequivocal as the Supreme Court stated in the challenged resolution. 11. The legal instructions appended to the Ministry decision read as follows: "This decision is in administrative procedure final and appeal is not allowed against it, but administrative lawsuit is possible. An action can be filed with, or made as a statement given in 30 days at, the Supreme Court of the Republic of Slovenia in Ljubljana, or can be made as a statement at any other unit of the basic court." 12. The Constitutional Court holds that it is impossible from a lay party to request knowledge about the fact what does exactly mean to "make a statement at any unit of the basic court", or knowledge about the fact that in case the party comes to the court personally and makes a statement it is considered that the action was filed with the court having jurisdiction on this same day, whereas in case when the party hands out an already written petition to the reception-office, however, it is regarded that it was filed with the court not having jurisdiction. 13. To establish the presumption of timeliness, it is enough that ignorance of the party is shown with probability. Based on the fore-mentioned, the Constitutional Court concludes that in the instant case, the filing of an action with a court lacking jurisdiction, in spite of the cited legal instructions, is to be ascribed to complainant's ignorance. Therefore, in new proceedings the Supreme Court must have to consider complainant's action dated 7 July 1993 as timely, and, if it also finds that other procedural conditions have been met, to decide the case on its merits.

5 C. 14. The Constitutional Court made this decision on the basis of Para. 1, Article 59 and Para. 1 and 2, Article 60 of the ZUstS. The Court was composed of Justices: dr. Tone Jerovšek, President, and dr. Peter Jambrek, mag. Matevž Krivic, mag. Janez Snoj, dr. Lovro Šturm, Franc Testen, dr. Lojze Ude, and dr. Boštjan M. Zupančič, the Judges. The decision was reached unanimously. President of the Constitutional Court: dr. Tone Jerovšek Type of procedure: ustavna pritožba Type of act: drugi akti Applicant: Date of application: Date of Decision: Type of decision adopted: odločba Outcome of proceedings: razveljavitev ali odprava Published: OdlUS V, 191 Document: AN01326