CASE OF OMEROVIĆ v. CROATIA (No. 2)

FIRST SECTION

CASE OF OMEROVIĆ v. CROATIA (No. 2)

(Application no. 22980/09)

JUDGMENT

STRASBOURG

5 December 2013

FINAL

14/04/2014

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Omerović v. Croatia (No. 2),

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Isabelle Berro-Lefèvre, President,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 12 November 2013,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 22980/09) 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 two Croatian nationals, Mr Mehmedalija Omerović and Mr Sanmir Omerović (“the applicants”), on 19 March 2009.

2. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.

3. The applicants alleged, in particular, that they had been deprived of access to the Supreme Court.

4. On 14 November 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants were born in 1945 and 1971 respectively and live in Slatina, Croatia. They are father and son.

6. The first applicant is a lawyer practising in Slatina. He was admitted to the Croatian Bar on 1 April 2003.

7. The first applicant lodged a civil action in the Slatina Municipal Court (Općinski sud u Slatini) on 2 December 1987 against the predecessor body of the Virovitičko-Podravska County (Županija Virovitičko-podravska), the State and a certain A.K., as well as an insurance company, C.O., claiming damages concerning an alleged physical attack by A.K. The second applicant joined the action several days later.

8. In 1990 the Supreme Court (Vrhovni sud Republike Hrvatske) delegated the case to the Virovitica Municipal Court (Općinski sud u Virovitici).

9. The Virovitica Municipal Court declared the applicants’ action inadmissible on 24 March 2000, giving as the reason that they had not complied with the Municipal Court’s request that they rectify their action.

10. The Bjelovar County Court (Županijski sud u Bjelovaru) dismissed the applicants’ appeal on 30 November 2000 and upheld the first-instance decision.

11. On 21 November 2001 the Supreme Court allowed appeals on points of law (revizija) by both applicants, quashed the decisions of the lower courts, and remitted the case to the Virovitica Municipal Court for fresh consideration.

12. In a fresh set of proceedings on 3 June 2004 the Virovitica Municipal Court dismissed the applicants’ civil action as without merit. In its judgment, the Municipal Court enumerated the evidence examined during the proceedings. The list of evidence contained, inter alia, the decision of the Executive Board of the Croatian Bar Association of 27 March 2003, by which the first applicant had been admitted to the Bar. A copy of this decision formed page 250 of the case file.

13. On 2 March 2006 the Virovitica County Court (Županijski sud u Virovitici) allowed the applicants’ appeal in part. It upheld the first-instance judgment concerning the merits and quashed the decision on the costs and expenses. It remitted the case for fresh consideration in respect of costs and expenses.

14. The applicants lodged an appeal on points of law with the Supreme Court on 27 March 2006 against the judgment of the County Court by which the first-instance judgment of the Virovitica Municipal Court had been upheld.

15. Amendments to the Civil Procedure Act entered into force on 1 October 2008 (see paragraph 26 below).

16. On 29 October 2008 the Supreme Court, in respect of the applicants’ action against A.K., quashed the judgments of the lower courts and remitted the case for fresh consideration.

17. In the fresh set of proceedings on 1 March 2010, the Virovitica Municipal Court dismissed the applicant’s action against A.K.

18. On 11 March 2010 the Virovitica Municipal Court ordered the first applicant to pay the costs and expenses of the proceedings in the total amount of 439,303 Croatian kunas[1] (HRK) and the second applicant in the total amount of HRK 233,797[2].

19. On 9 September 2010 the Virovitica County Court dismissed the applicants’ appeals and upheld both the first-instance judgment on the applicants’ action against A.K. and the first-instance decision on costs and expenses.

20. The applicants lodged an appeal on points of law with the Supreme Court on 30 September 2010. It was signed by the first applicant.

21. The Supreme Court separated the applicants’ appeal on points of law into one appeal against the judgment on the merits and another against the decision on costs and expenses. On 17 November 2010 it declared both of them inadmissible on the ground of lack of locus standi. The relevant part of the decisions reads:

“Under section 91(a) § 1 of the Civil Procedure Act ... a party to the proceedings may lodge an appeal on points of law only through a representative who is a lawyer. Under Article 91(a) § 2 of the Code of Civil Procedure, as an exception to § 1 ... a party may lodge an appeal on points of law himself only if he has passed the Bar exam, or through a representative ... who is not a practising lawyer, if that representative has passed the Bar exam. Under Article 91(a) § 3 of the Code of Civil Procedure the party, or his representative under § 1 of this Article, are obliged to submit an original or a copy of the Bar exam certificate ...

In the case in issue the first plaintiff, Mehmedalija Omerović, lodged an appeal on points of law himself, not through a legal representative, and therefore under Article 91(a) § 3 of the Code of Civil Procedure he was obliged to submit a Bar exam certificate, since no original or certified copy of such a certificate had ever been placed in the case file.

This court finds that the first plaintiff, Mehmedalija Omerović, acting as a representative of the second plaintiff, Sanmir Omerović, has never submitted an original or certified copy of a Bar exam certificate during the proceedings or with their appeal on points of law, although he is obliged to do so under Article 91(a) § 3 of the Code of Civil Procedure.”

22. On 30 December 2010 the applicants lodged constitutional complaints with the Constitutional Court (Ustavni sud Republike Hrvatske) against the decisions of the Supreme Court. On 19 May 2011 the Constitutional Court declared the constitutional complaints inadmissible on the grounds that the contested decisions had not concerned the merits of the case and as such were not susceptible to constitutional review. The decisions of the Constitutional Court were served on the applicants on 6 June 2011.

23. In the meantime, the applicants lodged a request for restoring the proceedings to the status quo ante (prijedlog za povrat u prijašnje stanje) in the appeal on points of law before the Virovitica Municipal Court, with the addition of the first applicant’s Bar exam certificate. The Virovitica Municipal Court dismissed their request as without merit on 13 January 2011.

24. The Bjelovar County Court dismissed the appeals of the applicants and upheld the first-instance decision on 24 February 2011. The applicants lodged appeals on points of law against those decisions.

25. On 18 May 2011 the Supreme Court declared the applicants’ appeals on points of law inadmissible, on the grounds that the contested decisions had not been final decisions in the case, and as such were not susceptible to appeal on points of law.

II. RELEVANT DOMESTIC LAW

26. Section 91(a) of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980, 69/1982, 58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991, and Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 58/1993, 112/1999, 88/2001, 117/2003, 88/2005, 2/2007, 84/2008, 123/2008, 57/2011, 148/2011, 25/2013, entered into force on 1 October 2008 and reads as follows:

“(1) A party may lodge an appeal on points of law only through a representative who is a lawyer.

(2) As an exception from subsection 1 of this section, a party may lodge an appeal on points of law in person if he or she has passed the Bar exam. If a party has a legally qualified representative who has passed the Bar exam but is not a lawyer entitled to plead, that representative may also lodge an appeal of points of law on behalf of the party.

(3) A party or its representative as in subsection 2 of this section shall attach the original or a copy of the Bar exam certificate to the appeal on points of law, if that certificate was not submitted to the courts at an earlier stage of the proceedings.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION IN RESPECT OF ACCESS TO THE SUPREME COURT

27. The applicants complained that they had not had access to the Supreme Court in the determination of their case against A.K. and in the determination of costs incurred in the same proceedings. They 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 ...”

A. Admissibility

1. The parties’ arguments

28. The Government disputed the admissibility of this complaint on the grounds that the applicants had abused their right of application. The Government argued that the applicants had used extremely offensive language in their application, which belittled the honour and reputation of the Republic of Croatia and its citizens and exceeded the boundaries of normal, civilised and legitimate criticism.

29. In particular, the Government referred to the applicants’ allegations that “such a case cannot occur even in the most primitive state communities of Africa” and that the Republic of Croatia “has two legal orders, the public and the secret (the first does not work because the second one does, and perfectly so, in all parts of the public and legal order of the respondent State”.

30. The Government also objected to the applicants’ accusations that the Republic of Croatia had been responsible for “the planned organised crime of extinction of [their] entire family” and for “national chauvinism, ethnic cleansing in the most perfidious forms of action of the court and other state bodies... while before the first instance court... simultaneous [proceedings] are pending against the perpetrator of several crimes in concurrence, whom the respondent State is protecting and harbouring from any prosecution, so that traces of the crime by the respondent State as the participant in all those crimes would not be discovered...”

31. The applicants made no comment in this regard.

2. The Court’s assessment

32. The Court reiterates that an application may be rejected as abusive if it is knowingly based on untruths (see Akdivar and Others v. Turkey, 16 September 1996, §§ 53-54, Reports of Judgments and Decisions 1996-IV; I.S. v. Bulgaria (dec.), no. 32438/96, 6 April 2000; and Varbanov v. Bulgaria, no. 31365/96, § 36, ECHR 2000-X). In addition, persistent use of insulting or provocative language by an applicant may be considered an abuse of the right of application within the meaning of Article 35 § 3 of the Convention (see Manoussos v. the Czech Republic and Germany (dec.), no. 46468/99, 9 July 2002; Duringer and Others v. France (dec.), nos. 61164/00 and 18589/02; and Stamoulakatos v. the United Kingdom, no. 27567/95, Commission decision of 9 April 1997).

33. Turning to the present case, the Court notes that the statements made by the applicants as quoted by the Government reflect their emotional attitude towards the behaviour of the authorities in their case. Those statements are value judgments, and as such cannot be regarded as “untrue” (see Aleksanyan v. Russia, no. 46468/06, § 118, 22 December 2008). Admittedly, some of the applicants’ allegations were provocative and inappropriate and thus regrettable, but in sum the Court finds that they do not meet the threshold of offensiveness and frequency that would make them an abuse of petition.

34. Further, the Court notes that the applicants’ complaint of lack of access to the Supreme Court 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’ arguments

35. The applicants argued that the first applicant’s occupation as a lawyer was obvious from the case file, since he had had to state his occupation for the purposes of the court’s official record. They also argued that the Virovitica Municipal Court had failed to request any documents it deemed to be missing after it had received the applicants’ appeal on points of law. Finally, the applicants suggested that the Virovitica Municipal Court might have deliberately hidden his Bar exam certificate from the Supreme Court.

36. The Government argued that the mere fact that the Supreme Court had dismissed the applicants’ appeal on points of law as inadmissible did not constitute a denial of access to court, in particular given that it had been the applicants’ omission and lack of care which had led the Supreme Court to reach such a decision. The Government pointed out that the applicants neither had submitted their appeal on points of law as lawyers nor had they submitted a Bar exam certificate. In the Government’s view, it was not the responsibility of the Virovitica Municipal Court to request the first applicant to submit additional documents in support of his appeal on points of law. The Government also argued that the first applicant had failed to inform any of the courts that he had qualified as a lawyer in the course of the proceedings. Finally, the Government pointed out that the domestic courts had conducted separate proceedings to ascertain the validity of the applicants’ allegations, and had found them to be untrue. In the Government’s view, by doing so the Republic of Croatia had fulfilled its positive obligations under the access-to-court limb of Article 6 of the Convention.

2. The Court’s assessment

(a) General principles

37. The Convention does not compel the Contracting States to set up courts of appeal 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, Levages Prestations Services v. France, 23 October 1996, Reports 1996-V, pp. 1544-45, § 44, and Poitrimol v. France, judgment of 23 November 1993, Series A no. 277‑A, § 13-15).

38. As regards the courts of cassation appeal, the Court has held that given the special nature of their role, which is limited to reviewing whether the law has been correctly applied, 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 2002‑VII). In this connection, a requirement that an appellant be represented by a qualified lawyer before the court of cassation appeal, as in the present case, cannot in itself be seen as contrary to Article 6. This requirement is clearly compatible with the characteristics of the Supreme Court as the highest court examining appeals on points of law, and it is a common feature of the legal systems in several member States of the Council of Europe (see Gillow v. the United Kingdom, judgment of 24 November 1986, Series A no. 109, § 69; Vacher v. France, judgment of 17 December 1996, Reports of Judgments and Decisions 1996‑VI, pp. 2148-49, §§ 24 and 28; and Bąkowska v. Poland, no. 33539/02, 12 January 2010).

39. However, a particularly strict interpretation of a procedural rule may deprive an applicant of the right of access to court (see Běleš and others v. the Czech Republic, no. 47273/99, § 60, 12 November 2002, and Zvolský and Zvolská v. Czech Republic, no. 46129/99, 12 November 2002). In fact, the right of access to a court is impaired when the rules cease to serve the aims of legal certainty and the proper administration of justice and form a sort of barrier preventing the litigant from having his or her case determined on the merits by the competent court (see Efstathiou and Others v. Greece, no. 36998/02, § 24, 27 July 2006).

40. Finally, while it is in the first place for the national authorities, and notably the courts, to interpret domestic law, the Court has to verify compatibility with the Convention of the effects of such an interpretation. 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 1997-VIII).

(b) Application of these principles to the present case

41. The Court first observes that the applicants’ earlier appeal on points of law in their dispute with A.K. was successful (see paragraph 16 above). On that occasion, the Supreme Court quashed the judgments of the lower courts and remitted the case. The applicants therefore had a clear interest to submit the fresh judgments of the lower courts under the scrutiny of the Supreme Court. Thus, the Court’s task is to examine whether the reasoning of the Supreme Court in declaring the applicants’ appeal on points of law inadmissible had effectively deprived the applicants of their right to have the merits of their allegations examined by the court of cassation appeal.

42. The applicants submitted their appeal on points of law on 30 September 2010, i.e. after the Amendments to the Civil Procedure Act requiring qualified representation before the Supreme Court came into force (see paragraphs 15 and 26 above). By that time, the domestic courts were aware of the fact that the first applicant was a qualified lawyer and they had a clear proof of it in their possession. This is apparent from the judgment of the Virovitica Municipal Court of 3 June 2004 (see paragraph 12 above). As such, the first applicant was qualified, in accordance with subsection 1 of section 91(a) of the Civil Procedure Act, to represent himself and the second applicant before the Supreme Court. Moreover, section 91 (a) of the Civil Procedure Act does not suggest that a lawyer should attach any kind of proof of his status to the appeal on points of law, meaning that the first applicant’s omission to sign the appeal on points of law as a lawyer or to stamp it with his official seal should not have been a sole reason for barring the examination of the applicants’ allegations.

43. What is at heart of this case is the Supreme Court’s lack of recognition of the first applicant’s Bar membership and its reliance on subsections 2 and 3 of section 91 (a) of the Civil Procedure Act (see paragraphs 21 and 26 above). However, whereas those provisions apply to appellants who are not members of the Bar, but have passed the Bar exam and whereas they have to prove their eligibility and attach a copy of the Bar exam to their appeal on points of law, such requirement was not applicable to the first applicant. Moreover, subsection 3 of section 91 (a) of the Civil Procedure Act provides that a copy of the Bar exam should be attached to the appeal on points of law only if it was not submitted at an earlier stage of the proceedings. The first applicant submitted a proof of his Bar membership already in course of the proceedings before the Virovitica Municipal Court. It is obvious that he would not be able to become a Bar member without passing the Bar exam. Therefore, the first applicant satisfied even the more stringent burden in order to have access to the Supreme Court.

44. The Supreme Court declared the appeal on points of law inadmissible de facto relying on the lack of the first applicant’s official seal or indication that he was a lawyer. On the other hand, simple skimming through the case file would suffice to detect that the first applicant was admitted to the Bar in 2003.

45. In light of the foregoing, the Court considers that the decision of the Supreme Court precluded a full examination of the merits of the applicants’ allegations and concludes that the barrier imposed on the applicants did not serve the aims of legal certainty and the proper administration of justice.

46. There has accordingly been a violation of Article 6 § 1 of the Convention.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

47. The applicants also complained, under Articles 2, 6, 13 and 14 of the Convention, Article 1 of Protocol No. 1 thereto and Article 3 of Protocol No. 4 thereto, about the assessment of facts and interpretation of the domestic law by the domestic courts in their civil proceedings for damages.

48. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that this part of the application does not disclose any appearance of a violation of the Convention. It follows that it is inadmissible under Article 35 § 3 (a) as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

49. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

50. The applicants claimed EUR 2,799,970.70 in compensation for pecuniary damage and EUR 1,000,000 in compensation for non-pecuniary damage.

51. The Government considered the amount claimed by the applicant excessive, unfounded and unsubstantiated, submitting that there was no causal link between the violations complained of and the applicant’s financial claims.

52. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicants EUR 5,000 jointly in respect of non-pecuniary damage, plus any tax that may be chargeable.

B. Costs and expenses

53. The applicants also claimed EUR 5,000 for costs and expenses incurred before the Court.

54. The Government argued that the applicants had failed to submit documents in support of the claim for costs or to specify the item of the Scale of Lawyer’s Fees and the amount of VAT. It therefore submitted that their claim should be rejected.

55. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. (see Editions Plon v. France, no. 58148/00, § 64, ECHR 2004-IV). That is to say, the applicant must have paid them, or be bound to pay them, pursuant to a legal or contractual obligation, and they must have been unavoidable in order to prevent the violation found or to obtain redress (see Belchev v. Bulgaria, no. 39270/98, § 113, 8 April 2004, and Hajnal v. Serbia, no. 36937/06, § 154, 19 June 2012). In the present case, regard being had to the above criteria, the Court considers it reasonable to award EUR 850 for the proceedings before the Court, plus any tax that may be chargeable to the applicants.

C. Default interest

56. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT,UNANIMOUSLY,

1. Declares the complaint concerning the lack of access to a court admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicants jointly, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Croatian kunas at the rate applicable at the date of settlement:

(i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 850 (eight hundred and fifty euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 5 December 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren NielsenIsabelle Berro-Lefèvre
RegistrarPresident

[1] Approximately 58,570 euros (EUR)

[2] Approximately EUR 31,170

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