After the Ombudsman’s intervention, the court found that the number of the complainant's house address and postal code was entered incorrectly in the K-registry of the court, but this error was considered insignificant and attributed responsibility for the serving of the summons to serve a prison sentence with the fiction of service with a public notice on the notice board of the court and on the e-uprava unified state portal to the complainant, because she did not fulfil the registration obligation according to Article 5 of the Residence Registration Act (ZPPreb-1). Thus, the Ombudsman’s recommendation that, in the event of an established error on the part of the court, the court inform (and apologies) both the complainant and the prison of this as this may affect the further treatment of the complainant, was not followed.

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The complainant informed the Ombudsman that she had been brought to serve a prison sentence, although she had not previously received a summons to serve such sentence. This deprived her of both the time to prepare for serving her prison sentence and the possibility of applying for a postponement of her sentence. Since she did not come to serve the sentence herself, this also affected her treatment in prison, among other things the regime of serving the prison sentence and the granting of benefits. After the start of the sentence, the complainant realised that the summons to serve the sentence had been served on her with the fiction of service according to Paragraph 2 of Article 96a of the General Administrative Procedure Act (ZUP)[1], but before that, it was not sent to her at the address that she indicated on the court record during her hearing and to which the court served her court documents in criminal proceedings. Upon the return of the unsuccessful attempt to serve the summons, the court was informed that the house number indicated in the address does not exist. The complainant wanted the court to at least apologise to her for the mistake, as her request for reinstatement was rejected (as it was filed too late).

On the Ombudsman’s inquiry the court first announced that the execution of the prison sentence followed the final judgment of this court. The response was accompanied by a copy of the letter with which the court responded to the complainant's request for reinstatement, return of benefits, and an apology. It was possible to understand from this response that the order for the execution of a final and enforceable judgment (IKZ order) was sent to the enforcement criminal department of the court by the criminal department of the same court. The IKZ order listed the address with the correct street name, but (as was later discovered) with the house number and postal code entered incorrectly. Several unsuccessful attempts by the court to serve the complainant with a summons to serve her prison sentence followed, including to another postal code (but again to the same house number) and to her legal residence, which has been in the Central Population Register (CRP) since 2013 at the address of the Centre for Social Work. Since the executive criminal department of the court was not aware of any other place of residence of the complainant, the summons was served on her with the fiction of service.

In an additional intervention, the Ombudsman once again drew the court’s attention to the fact that the complainant had already stated in the above-mentioned application for reinstatement, return of benefits, and for an apology that she had already informed the court of the exact address of her residence during the criminal proceedings itself and that the court has also sent her court documents to this address. However, the court did not specifically define these statements in its response to the Ombudsman’s inquiry. Since the complainant missed the deadline for submitting a proposal for the return to the previous state, these statements of hers were not considered in substance. In addition, we also drew the court's attention to the fact that the complainant stated her actual residence address on the minutes of the hearing of the main hearing both in the subject matter and in another criminal proceeding that was pending against her before the same court, which allows for the possibility that an (unintentional) error occurred in the court when serving the summons or when preparing the IKZ order; and also to the fact that the complainant is in a worse position as a result of being brought to serve her sentence than she would have been if she had come voluntarily to serve her sentence. Therefore, the Ombudsman requested an explanation from the court as to how the IKZ order (and consequently in the summons to serve a prison sentence) indicated a different house number and postal code than the complainant had already stated before the court. In accordance with the principle of justice and good administration, the Ombudsman also suggested that, if the court finds that the error in writing the complainant's address in the IKZ order was made on the part of any department of the court, it should notify both the complainant and the prison of this (along with an apology), which could take this circumstance into account in her further treatment.

When searching for an answer to the Ombudsman’s question outlined above, the court found that the error in the complainant's address occurred when maintaining the K-register of the registry (criminal) department of the court, from which the data for the preparation of court documents is otherwise drawn. The address that the complainant stated on the court record during her hearing was incorrectly copied into it. Based on the record in the K-register of the court, the IKZ order and the subsequent call for serving a prison sentence in the complainant’s case contained incorrect information in her address. Despite this identified error, the court insisted on the position that the service of the summons was correct and legal, or in accordance with the provisions of the ZUP, based on the information known at the time and available to the enforcement criminal department of the court and that the incorrect entry of the complainant's address in the K-registry of the court contributed only to an insignificant extent to the serving of the summons in question for the imposition of the sentence with the fiction of service or with a public announcement. According to the court's assessment, the complainant herself contributed to this to the greatest extent, because since 2013 she has not fulfilled the reporting obligation from Article 5 of the ZPPreb-1[2], although the court was not aware of any obstacles that prevented her from doing so at the administrative unit. The court concluded that the condition for being brought to serve a prison sentence is a previously legally provided summons for the commencement of the sentence, which the court also did with a summons, which, according to the court's explanation, the court was forced to serve by means of a public notice based on Paragraph 2 of Article 96a of the ZUP due to non-fulfilment of the complainant's statutory reporting duty.

The Ombudsman could only partially agree with the assessment that the incorrect entry of the complainant's address in the K-registry of the court contributed only to an insignificant extent to the service of the summons with the fiction of service, or by means of a public notice, and as a result to the fact that the complainant was later not informed of the date of the commencement of the prison sentence and to the forced deprivation of liberty. According to the Ombudsman’s position, such an assessment does not take into account the fact that an obvious mistake was made by the same court (i.e. the criminal department), which was not known to the executive criminal department of the court until a more detailed inspection of the content of the record of the criminal case in question. It is indeed true that the summons to serve the prison sentence could be served on the complainant in accordance with Paragraph 1 of Article 96a of the ZUP[3] at the address for service if she (had) fulfilled the registration obligation according to the ZPPreb-1 and registered at the administrative unit the address of residence at the mother’s address within eight days from the date of settlement^[4], because in this way, the mistake in recording her address in the K-register for the service of the summons would not have a particular impact in her case. In this case, the address of the complainant's residence would be entered in the CRP, which the court can also access if necessary. Based on the provisions of the ZPPreb-1 and ZUP, this address would also be considered as the address for service, where the complainant would have to be sent a summons to serve a prison sentence based on Paragraph 1 of Article 96 of the ZUP. It is also impossible to ignore the fact that the summons, addressed to the address entered in the K-registry of the court, was returned to the court with the mark "House number does not exist”, which is information that may indicate that the address used in the K-register, the IKZ order, and consequently also in the summons to serve the prison sentence was clearly not correct. The enforcement criminal department of the court could therefore, with a timely inspection of the criminal file (or its electronic records), determine the address of the complainant as she communicated it to the court and to which the court had previously successfully served her with court documents. According to the Ombudsman, therefore, the responsibility for sending a summons to serve a prison sentence to an address that the complainant never communicated to the court is largely on the court's side. The Ombudsman thus deemed the complaint justified.

We informed the complainant that these findings of the Ombudsman do not affect the court's decision to reject her request for reinstatement, since this decision is final and as such also binds the Ombudsman; however, the Ombudsman's findings can be made known to the prison, because the court did not follow our recommendation that, in the event of an established error on the part of the court, it inform both the complainant and the prison about this (along with an apology). 15.2-16/2023

[1] In Paragraph 2 of Article 96a the ZUP stipulates:
“(2) If it is established that the person does not reside at the address for service, because they have moved away or the address is unknown, the authority orders that service be carried out by publishing a notice of service on the notice board of the authority and on the e-uprava unified state portal with a public notice containing the information from Paragraph 3 of Article 96 of this act. Service is considered to have been completed after 15 days from the day when the notice of service was published with a public notice on the notice board of the authority and on the e-uprava unified state portal.”

[2] Paragraph 1 of Article 5 of the ZPPreb-1 stipulates:
“(1) A citizen and a foreigner with a permanent residence permit or certificate of registration of permanent residence (hereinafter referred to as: permanent residence permit) shall register their permanent residence with the administrative unit within eight days from the date of settlement at the address where they permanently reside.”

[3] Paragraph 1 of Article 96a of the ZUP stipulates:

“(1) The authority serves the document on the person who did not participate in the procedure until served, at the address for service. Exceptionally, it can also serve at another address that is not the same as the address for service, if it is likely that the person actually resides there, but it must repeat the service also at the address for service, if it turns out that the person does not live at the alleged other address.”

[4] Failure to register according to Paragraph 1 of Article 5 of ZPPreb-1 is defined by this law as a misdemeanour, for which a fine of 200 to 600 euros is prescribed in the first indent of Paragraph 1 of Article 45.