SECOND SECTION
CASE OF ZUBAC v. CROATIA
(Application no. 40160/12)
JUDGMENT
STRASBOURG
11 October 2016
This judgment will become final in the circumstances set out in Article44 §2 of the Convention. It may be subject to editorial revision.
ZUBAC v. CROATIAJUDGMENT1
In the case of Zubac v. Croatia,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Işıl Karakaş, President,
Julia Laffranque,
Paul Lemmens,
Valeriu Griţco,
Ksenija Turković,
Jon Fridrik Kjølbro,
Georges Ravarani, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 6 September 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.The case originated in an application (no. 40160/12) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a national of Bosnia and Herzegovina, Ms Vesna Zubac (“the applicant”), on 30 May 2012.
2.The applicant was represented by Mr I. Ban, a lawyer practising in Dubrovnik. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
3.The applicant alleged, in particular,that she had been denied access to the Supreme Court because of the manner in which the Supreme Court had applied the provisions of the Civil Procedure Act.
4.On 24 March 2015 the complaint concerning access to a court was communicated to the Government and the remainder of the application was declared inadmissiblepursuant to Rule 54 § 3 of the Rules of Court.
5.The Government of Bosnia and Herzegovina were informed of their right to intervene (Article36 § 1 of the Convention and Rule 44§2(a) of the Rules of Court), but did not avail themselves of that right.
THE FACTS
I.THE CIRCUMSTANCES OF THE CASE
6.The applicant was born in 1959 and lives in Bijela (the Republic of Montenegro).
7.On 29 September 1992, the applicant’s father-in-law,Vu.Z., represented by his wife K.Z., concluded a contract for the exchange of his house in Dubrovnik (the Republic of Croatia) for one owned by F.O. in Trebinje (Republika Srpska, Bosnia and Herzegovina).
8.In 2001 Vu.Z.brought a civil action in the Trebinje Municipal Court (Osnovni sud u Trebinju) against F.O.’s heirs, seeking permission to registerhis ownership (clausula intabulandi) of the house in Trebinje.
9.On 20 April 2001 the Trebinje Municipal Court ordered F.O.’s heirs to issue a clausula intabulandi to Vu.Z and the defendants obeyed that order.
10.Vu.Z. died on an unknown date between 2001 and 2002.
11.On 14 August 2002 M.Z., Vu.Z.’s son and the applicant’s husband, brought a civil action in the Dubrovnik Municipal Court (Općinski sud u Dubrovniku), seeking to have the contract for the exchange of the housesdeclared null and void. He claimed that the contract had been signed under duress because of circumstances arising from the war in Croatia. He also claimed that his father’s signature on the power of attorney used by his mother,Vu.Z.’swife, to sign the impugned contract on the latter’s behalf, had been forged. In his action, M.Z. indicated the value of the subject matter of the dispute(vrijednost predmeta spora) at 10,000 Croatian Kunas (HRK) (approximately 1,300 euros (EUR) at the time). Later on, at a hearing on 6April 2005, he indicated the value of the subject matter of the dispute at HRK 105,000 (approximately EUR 14,160 at the time). The defendants objected.
12.On 25 April 2005 the Dubrovnik Municipal Court ordered M.Z. to pay court fees of HRK 1,400 (approximately EUR 180 at the time)for bringing the civil action. It assessed the fees according to the value of the dispute being at HRK 105,000.
13.By a judgment of 27 September 2005 the Dubrovnik Municipal Court dismissed the claim and ordered the claimant to bear all the litigation costs and the expenses of the opposing parties, namely HRK 25,931.10 (approximately EUR 3,480 at the time). It assessed the costs of the proceedings according to the value of the subject matter of the dispute indicated at the hearing on 6 April 2005, namely HRK 105,000. The relevant part of the judgment reads as follows:
“... the costs of the proceedings were awarded to the defendants [and assessed] according to ... the value of the dispute indicated by the claimant (HRK105,000(page 58 [of the case-file]) that the [first-instance] court accepted.”
14.On 12 December 2005 the first-instance court ordered the claimant to pay court fees of HRK 1,400 for the judgment. It also assessed them according to avalue of HRK105,000 for the dispute.
15.By a judgment of 1 October 2009 the Dubrovnik County Court (Županijski sud u Dubrovniku) dismissed an appeal by the claimantand upheld the first-instance judgment. The relevant part of that judgment reads as follows:
“... the decision on the costs of the proceedings is based on the relevant law and adequate reasons are provided.”
16.On 24 May 2010 M.Z.lodged an appeal on points of law (revizija) with the Supreme Court.
17.On 17 October 2010 M.Z. died. The proceedings were taken over by his wife Vesna Zubac, the applicant, as his heir.
18.By a decision of 30 March 2011 the Supreme Court declared the appeal on points of law inadmissible ratione valoris,finding that the value of the subject matter of the dispute was below the statutory threshold of HRK 100,000. It held that the applicable value of the subject matter of the dispute was the one indicated in the claimant’s civil action.The relevant part of that decision reads as follows:
“With regard to section 40(3) of the Civil Procedure Act if, in a situation referred to in subsection 2, it is obvious that the value of the subject matter of the dispute indicated by the claimant is too high or too low, so that an issue arises over jurisdiction over the subject matter, the composition of the court, the type of proceedings, or the right to lodge an appeal on points of law, the court shall quickly and in an appropriate manner verify the accuracy of the value specified, by the latest at the preparatory hearing or, if no preparatory hearing has been held, at the main hearing before the examination of the merits.
It follows that when an action does not concern a sum of money the claimant is obliged to indicate the relevant value of the subject matter of the dispute in the civil action, after which the claimant is not allowed to change the [indicated] value of the dispute. Only a court may set the value of the subject matter of the dispute,ex officio or if an objection is raised by the defendant, if it establishes that the value indicated in the civil action is too high or too low, by the latest at the preparatory hearing or, if no preparatory hearing has been held, at the main hearing before the examination of the merits.
In the present case the value of the subject matter of the dispute indicated in the statement of claim is 10,000 Croatian kunas.
Later on, at the hearing of 6 April 2005, the claimant’s representative indicatedthe value of the subject matter of the dispute at 105,000 Croatian kunas ... . However, the claimant did not amend the claim at the same time. [Therefore] the first-instance court did not adopt a decision on a new value for the dispute because the procedural requirements under section 40(3) of the CPA [Civil Procedure Act] were not met.
It follows that the relevant value of the subject matter of the dispute is the one indicated by the claimant in the civil action, namely 10,000 Croatian kunas, because the claimant was not allowed to change the indicated value if he did not amend his claim at the same time.”
19.By a decision of 10 November 2011 the Constitutional Court declared a constitutional complaint by the applicant inadmissible on the grounds that the case raised no constitutional issues. On 30 November 2011 it served its decision on the applicant’s representative.
II.RELEVANT DOMESTIC LAW AND PRACTICE
A.Civil Procedure Act
20.The relevant provisions of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/1991, 91/1992, 112/1999, 81/2001, 117/2003, 88/2005, 84/2008, 96/2008 and 123/2008), as in force at the material time, provided:
Section 40
“...
(2)... when an action does not concern a sum of money, the relevant value shall be the value of the subject matter of the dispute (vrijednost predmeta spora) indicated by the claimant in the civil action (u tužbi).
(3)If, in a situation referred to in subsection 2, it is obvious that the value of the subject matter of the dispute indicated by the claimant is too high or too low, so that an issue arises over jurisdiction over the subject matter, the composition of the court, the type of proceedings, or the right to lodge an appeal on points of law, the court shall quickly and in an appropriate manner verify the accuracy of the value specified, by the latest at the preparatory hearing or, if no preparatory hearing has been held, at the main hearing before the examination of the merits.
(4)If, after the defendant has begun litigation on the merits of the case, it is established that the claimant has failed to indicate the value of the subject matter of the dispute, the first-instance court shall quickly and in an appropriate manner, after giving the parties the opportunity to express their opinion, set the value of the subject matter of the dispute by a decision against which no separate appeal is permitted.
(5)The court shall also proceed in a manner prescribed in subsection 4 after an appeal or an appeal on points of law has been lodged, before sending the case to a higher court for a decision on those remedies.”
Section 382
“(1)he parties may lodge an appeal on points of law against a second-instance judgment:
1.if the value of the dispute in the contested part of the judgment exceeds HRK100,000 ...
21.The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/1991, 91/1992, 112/1999, 81/2001, 117/2003, 88/2005, 84/2008, 96/2008, 23/2008, 57/2011, 148/2011consolidated text, and 25/2013) provides as follows:
Section 428a
“(1)When the European Court of Human Rights has found a violation of a human right or fundamental freedom guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms or additional protocols thereto ratified by the Republic of Croatia, a party may, within thirty days of the judgment of the European Court of Human Rights becoming final, file a petition with the court in the Republic of Croatia which adjudicated in the first instance in the proceedings in which the decision violating the human right or fundamental freedom was rendered, to set aside the decision by which the human right or fundamental freedom was violated.
(2)The proceedings referred to in paragraph 1 of this section shall be conducted by applying, mutatis mutandis, the provisions on the reopening of proceedings.
(3)In the reopened proceedings the courts are required to respect the legal opinions expressed in the final judgment of the European Court of Human Rights finding a violation of a fundamental human right or freedom.”
B.The case-law of the Supreme Court
22.The Government referred to cases nos. Rev 62/1994-2 of 23February 1994, Rev 226/05-2 of 18 May 2005, Rev 20/06-2 of 11 April 2006, Rev 865/06-2 of 30 November 2006, Rev 694/07-2 of 19 September 2007, Rev 798/07-2 of 5 February 2008, Rev 1525/09-2 of 8 June 2011, Rev 320/2010-2 of 8 September 2011, Rev 287/11-2 of 14 December 2011and Rev 648/10-2 of 23 January 2013, in which the Supreme Court declared appeals on points of law inadmissible ratione valoris.It held that the applicable values of the disputes were those indicated in the civil actions (which were below the statutory threshold) because the value of the subject matter of the dispute could not be changed after apreparatory hearing or, if no preparatory hearing had been held, at the main hearing before the examination of the merits.
C.The case-law of the Constitutional Court
23.The applicant referred to case no. U-III-1041/2007 of 24June 2008, in which the Constitutional Court quasheda decision of the Supreme Court to declare an appeal on points of law inadmissible ratione valoris because it had unreasonably applied procedural rules for lodgingan appeal on points of law in commercial disputes, although the proceedings were conducted before the non-commercial courts.
THE LAW
I.ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
24. The applicant complained that she had been deprived of access to the Supreme Court. She relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
25.The Government contested that argument.
A.Admissibility
26.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
27.The applicant argued that her legal predecessor had increased the value of the subject matter of the dispute toHRK 105,000 at the hearing on 6 April 2005. The first-instance court hadassessed the litigation costs and the court fees in accordance with that value. Furthermore, the secondinstance court had upheld the first-instance judgment. Therefore, the applicant’s legal predecessorhadhad a reasonable expectation that the statutory ratione valoris requirements for lodging an appeal on points of law had been met.
28.The applicant averred that the fact that the first-instance court had failed to adopt a formal decision on the value of the subject matter of the dispute was of no relevance because, under the relevant procedural rules, no appeal was anyway permitted against such a decision. Further to that, she referred to Šimecki v. Croatia(no. 15253/10, 30 April 2014), stating that the parties to proceedings should not bear the negative consequences of errors made by the courts.
29.As regards the Supreme Court’s case-law provided by the Government (see paragraph 22 above), the applicant pointed out that none of those decisions, except Rev 798/07-2 of 5 February 2008, was comparable to her situation.
(b)The Government
30.The Government submitted that the Court, while examining complaints of a violation of Article 6 § 1 of the Convention, usually assessed whether the proceedings as a whole had fulfilled the standards required under that Article. Thus, the Court had to examine whether the applicant had not only enjoyed her right of access to a court before the thirdinstance body, namely the Supreme Court, but also whether her legal predecessor had had access to the first and the second-instance courts. In that connection, the Government argued that the applicant’s case had been examined on the merits at two levels of jurisdiction, the first and secondinstance courts.
31.The Government further contended that in the present case the value of the subject matter of the dispute had been indicated by the claimant in his civil action. The claimant, represented by a qualified lawyer, should have been aware of the statutory ratione valoris requirement for lodging an appeal on points of law and that the value he had indicated in his claim had been below the prescribed threshold. Furthermore, the claimant had increased the value of the subject matter of the dispute ata stage of the proceedings when, under the procedural rules, that had not been permitted. The legitimate aim of such a rule was to prevent possible manipulation by a claimant and ensure the protection of procedural rights and equality of status in the proceedings for the opposing party. The only exception to that rule was a situation in which a claimant amended his or her claim. In that regard, the Government first emphasised that the first-instance court had never formally ruled on the value of the subject matter of the dispute. Secondly, the claimant had never amended his claim. Therefore, the claimant should have been aware that the procedural requirements for lodging an appeal on points of law had not been met.
32.Lastly, the Government highlighted the fact that the Supreme Court’s decision had not been based only on the relevant domestic law, but had also been in accordance with the Supreme Court’s long-term, consistent case-law.
2.The Court’s assessment
(a)General principles
33.The Convention does not compel the Contracting States to set up courts of appeal or cassation in civil cases. However, where such courts do exist, the guarantees of Article 6 must be complied with, for instance in that it guarantees to litigants an effective right of access to the courts for the determination of their “civil rights and obligations” (see, among many other authorities, Andrejeva v. Latvia [GC], no. 55707/00, § 97, ECHR 2009;Egić v. Croatia, no. 32806/09, § 46, 5 June 2014, andShamoyanv.Armenia, no. 18499/08, § 29, 7 July 2015).
34.Given the special nature of the role of cassation courts, which is limited to reviewing whether the law has been correctly applied, the Court is able to accept that the procedure followed in such courts may be more formal (see Meftah and Others v. France [GC], nos. 32911/96, 35237/97 and 34595/97, § 41, ECHR 2002VII).
35.The “right to a court”, of which the right of access is one aspect, is not absolute; it is subject to limitations permitted by implication, in particular where the conditions of admissibility of an appeal are concerned, since by its very nature it calls for regulation by the State, which enjoys a certain margin of appreciation in this regard (see, for example, García Manibardo v. Spain, no.38695/97, § 36, ECHR 2000-II, Mortier v.France, no.42195/98, § 33, 31 July 2001, and Vo v. France [GC], no. 53924/00, §92, ECHR 2004VIII). However, those limitations must not restrict or reduce a person’s access in such a way or to such an extent that the very essence of the right is impaired; specifically, such limitations will only be compatible with Article 6 § 1 if they pursue a legitimate aim and there is proportionality between the means employed and the aim pursued (seeGuérin v. France, 29 July 1998, § 37, Reports of Judgements and Decisions1998-V).
36.It is first and foremost up to the national authorities, and notably the courts, to interpret domestic law. The Court’s role is limited to verifying the compatibility of the effects of such interpretations with the Convention. This applies in particular to the interpretation by courts of rules of a procedural nature (see Tejedor García v. Spain, 16 December 1997, §31, Reports 1997VIII). The Court must make its assessment in each case in the light of the special features of the proceedings in question and by reference to the object and purpose of Article6 § 1 (see, mutatis mutandis, Miragall Escolano and Others v.Spain, nos. 38366/97, 38688/97, 40777/98, 40843/98, 41015/98, 41400/98, 41446/98, 41484/98, 41487/98 and41509/98, § 36, ECHR 2000 I).
(b)Application of those principles to the present case
37.In the present case, the Supreme Court declared the appeal on points of law lodged by the applicant’s legal predecessor inadmissible ratione valoris.It held that the relevant value of the subject matter of the dispute was the one indicated in the claimant’s civil action, namely HRK 10,000, which was below the statutory threshold of HRK 100,000(seeparagraph18 above). In assessing the admissibility ratione valoris, the Supreme Court relied on section 40(3) of the Civil Procedure Act,which states that the court shall, by the latest at the preparatory hearing or, if no preparatory hearing has been held, at the main hearing before the examination of the merits, quickly and in an appropriate manner verify the accuracy of the value specified if it is obvious that the value of the subject matter of the dispute indicated by the claimant is too high or too low (seeparagraph 18 above).