CASE OF ZUBAC v. CROATIA

SECOND SECTION

CASE OF ZUBAC v. CROATIA

(Application no. 40160/12)

JUDGMENT

STRASBOURG

11 October 2016

THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 05/04/2018

This judgment may be subject to editorial revision.

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 inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

5. The Government of Bosnia and Herzegovina were informed of their right to intervene (Article 36 § 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 register his 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 houses declared 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.’s wife, 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 6 April 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 (HRK 105,000 ‑ (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 a value of HRK 105,000 for the dispute.

15. By a judgment of 1 October 2009 the Dubrovnik County Court (Županijski sud u Dubrovniku) dismissed an appeal by the claimant and 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 indicated the 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 HRK 100,000 ...

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, 148/2011 ‑ consolidated 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 23 February 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 2011 and 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 a preparatory 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 24 June 2008, in which the Constitutional Court quashed a decision of the Supreme Court to declare an appeal on points of law inadmissible ratione valoris because it had unreasonably applied procedural rules for lodging an 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 to HRK 105,000 at the hearing on 6 April 2005. The first-instance court had assessed the litigation costs and the court fees in accordance with that value. Furthermore, the second‑instance court had upheld the first-instance judgment. Therefore, the applicant’s legal predecessor had had 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 third‑instance 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 second‑instance 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 at a 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, and Shamoyan v. 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 2002‑VII).

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 2004‑VIII). 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 (see Guérin v. France, 29 July 1998, § 37, Reports of Judgements and Decisions 1998-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 1997‑VIII). 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 Article 6 § 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 and 41509/98, § 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 (see paragraph 18 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 (see paragraph 18 above).

38. In this connection, the Court observes that the claimant changed the value of the subject matter of the dispute at the hearing on 6 April 2005 to HRK 105,000 and that the defendants objected to that (see paragraph 11 above). It further notes that the first-instance court failed to adopt a separate decision on the value of the subject matter of the dispute. However, in its reasoning on the merits of the case, the first-instance court stated that it had assessed the costs of the proceedings, inter alia, according to the value of the dispute indicated by the claimant at the hearing on 6 April 2005 (see paragraph 13 above). The second-instance court upheld the first-instance court’s conclusions in their entirety (see paragraph 16 above). It follows that both the first and the second-instance courts accepted the value of the claim indicated by the claimant at the hearing on 6 April 2005. Moreover, they obliged him to pay court fees and costs of proceedings calculated according to that significantly higher value (see paragraphs 12-15 above).

39. Therefore, even assuming that the lower courts made an error when they allowed the claimant to change the value of the subject matter of the dispute at an advanced stage in the proceedings, namely when the procedural requirements for such action had not been met (see paragraph 20 above), the Court is of the opinion that the applicant’s legal predecessor acted reasonably when he lodged his appeal on points of law and expected a decision by the Supreme Court on the merits.

40. In connection with the foregoing, the Court reiterates that the risk of any mistake made by a State authority must be borne by the State, and errors must not be remedied at the expense of the individual concerned, (see Platakou v. Greece, no. 38460/97, § 39, ECHR 2001‑I; Freitag v. Germany, no. 71440/01, §§ 37-42, 19 July 2007; and Šimecki, cited above, § 46). In the present case, the Supreme Court, although aware of all the circumstances of the applicant’s case and the alleged error made by the lower courts, interpreted relevant procedural rules on the value of the subject matter of the dispute in an excessively formalistic manner, thus placing the burden of the lower courts’ errors on the applicant who at that point apparently had no further opportunity to challenge the court fees and costs of proceedings imposed on her. By placing the burden of errors made by the lower courts at the expense of the applicant, the Supreme Court acted contrary to the general principle of procedural fairness inherent in Article 6 § 1 of the Convention, impinging on her right of access to a court. Consequently, the Government’s argument about the Supreme Court’s long‑term, consistent case-law (see paragraph 22 and 32 above) cannot influence the Court’s conclusion.

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

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

42. The applicant, without relying on any Article of the Convention complained for the first time in her reply of 10 September 2015 to the Government’s observations that there had been a violation of her right to a fair trial in that her legal predecessor had been represented by a lawyer from Montenegro who had not been familiar with the relevant procedural rules of domestic law and who had not been allowed under relevant procedural rules to represent the parties before the courts in the Republic of Croatia. Therefore, the first-instance court had been obliged to warn the applicant’s legal predecessor about the harmful effects of such legal representation.

43. The Court notes that the final domestic decision complained of, namely the decision of the Constitutional Court of 10 November 2011, was served on the applicant’s representative on 21 November 2011 (see paragraph 19 above) and that the applicant raised this complaint on 10 September 2015, in her reply to the Government’s observations, that is, almost four years later.

44. It follows that this part of the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

45. 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

46. The applicant claimed 30,000 euros (EUR) in respect of non‑pecuniary damage.

47. The Government considered the applicant’s claim excessive, unfounded and unsubstantiated.

48. The Court finds that the applicant must have sustained non-pecuniary damage. In this connection the Court first reiterates that the most appropriate form of redress in cases where it finds that an applicant has not had access to court in breach of Article 6 § 1 of the Convention would, as a rule, be to reopen the proceedings in due course and re‑examine the case in keeping with all the requirements of a fair hearing (see, for example, Lungoci v. Romania, no. 62710/00, § 56, 26 January 2006; Yanakiev v. Bulgaria, no. 40476/98, § 90, 10 August 2006; and Lesjak v. Croatia, no. 25904/06, § 54, 18 February 2010). In this connection, the Court notes that the applicant can now file a petition under section 428a of the Civil Procedure Act (see paragraph 21 above) for the reopening of the above proceedings in respect of which the Court has found a violation of Article 6 § 1 of the Convention. In these circumstances, ruling on an equitable basis, the Court awards the applicant EUR 2,500 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

B. Costs and expenses

49. The applicant also claimed EUR 1,740 for the costs and expenses incurred before the domestic courts and EUR 4,144 for those incurred before the Court.

50. The Government contested those claims.

51. 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. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 850 for the costs and expenses incurred before the Constitutional Court and EUR 2,600 for those incurred in the proceedings before the Court, plus any tax that may be chargeable to the applicant.

C. Default interest

52. 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

1. Declares, unanimously, the complaint concerning the right of access to court admissible and the remainder of the application inadmissible;

2. Holds, by four votes to three, that there has been a violation of Article 6 § 1 of the Convention;

3. Holds, by four votes to three,

(a) that the respondent State is to pay the applicant, 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 2,500 (two thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 3,450 (three thousand four hundred and fifty euros), plus any tax that may be chargeable to the applicant, 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, unanimously, the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 11 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stanley NaismithIşıl Karakaş
RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Lemmens, Griţco and Ravarani is annexed to this judgment.

A.I.K.
S.H.N.

JOINT DISSENTING OPINION OF JUDGES LEMMENS, GRIŢCO AND RAVARANI

1. To our regret, we cannot agree with the majority’s finding that there has been a violation of Article 6 § 1 the Convention in the present case.

2. According to the majority, the Supreme Court, by declaring the applicant’s cassation appeal (appeal on points of law) inadmissible, violated her right of access to that court.

The first and, in fact, only question before the Supreme Court was whether the judgment of the County Court was open to cassation. The answer to that question would depend, in our view, on the intrinsic nature of that judgment, and not on the characterisation possibly given to it by the County Court itself. It therefore seems perfectly normal to us that the Supreme Court examined whether the claim had a value higher or lower than the statutory threshold of HRK 100,000, without in any way being bound by the County Court’s (implicit) determination in that regard.

Moreover, the characterisation given by the Supreme Court does not seem to be arbitrary or manifestly unreasonable, having regard to the wording of section 40 of the Civil Procedure Act. The Supreme Court applied section 40(2), which refers to the value indicated by the claimant in the document instituting the proceedings. It found that the conditions for changing that value, set out in section 40(3), had not been fulfilled, and thus refused to base its determination of the value of the subject matter of the dispute on the higher value indicated by M.Z. at the hearing of 6 April 2005. There is, in our opinion, even less reason to criticise the Supreme Court’s reasoning as it seems to be in line with its long-standing case law (see the cases mentioned in paragraph 22 of the judgment). We also fail to see how the Supreme Court’s interpretation can be regarded as “excessively formalistic” (see paragraph 40 of the judgment).

It is not for our Court to interpret domestic law. Apart from situations where the interpretation of domestic law by the domestic courts is arbitrary or manifestly unreasonable, the Court should limit itself, as is stated in paragraph 36 of the judgment, to verifying whether the effects of the interpretation adopted are compatible with the Convention. That means, in our case, that the Court should examine whether the inadmissibility of the appeal to the Supreme Court is compatible with the right of access to a court. We find it difficult to accept that the limitation to claims above HRK 100,000 (approximately EUR 13,000) would not pursue a legitimate aim or would be disproportionate. On this point, we would agree with the Government, which stated that one should look at the proceedings as a whole and, in particular, at the fact that the applicant had been able to have her claim examined, in fact and in law, at two levels of jurisdiction (see paragraph 30 of the judgment).

In sum, we consider that the restriction of the applicant’s right of access to the Supreme Court did not violate Article 6 § 1 of the Convention.

3. In order to arrive at a different conclusion, the majority argue that the Supreme Court “acted contrary to the general principle of procedural fairness inherent in Article 6 § 1 of the Convention”. According to the majority, the Supreme Court placed “the burden of errors made by the lower courts at the expense of the applicant” (paragraph 40 of the judgment).

The notion of a “general principle of procedural fairness” has not, to our knowledge, hitherto appeared in the case-law of the Court. It is far from clear to us whether this principle, “inherent” in Article 6 § 1, is in any way different from the right to a fair hearing, explicitly guaranteed by that Article. Neither do we see what its exact relationship is to the right of access to a court, the only right of Article 6 § 1 at issue in the complaint.

Be that as it may, we do not see how the Supreme Court can be accused of placing “the burden of errors made by the lower courts” on the applicant.

The majority refer to three judgments in which the Court has held that the risk of any mistake made by a State authority must be borne by the State, and errors must not be remedied at the expense of the individual concerned. These judgments concern a decision to declare an application inadmissible as being served on the respondent party out of time, even though it had been the court bailiff’s responsibility to effect service (Platakou v. Greece, no. 38460/97, § 39, ECHR 2001‑I), a decision to declare a request by a party to a court inadmissible as being lodged out of time, even though the delay had mainly resulted from the conduct of another court in transferring the request to the competent court (Freitag v. Germany, no. 71440/01, § 41, 19 July 2007), a court’s failure to properly serve an order, so that it became final without ever reaching the applicant, and a decision to declare an appeal against another order inadmissible as being lodged out of time, even though the court had made a mistake regarding the date on which the appeal had been lodged (Šimecki v. Croatia, no. 15253/10, § 46, 30 April 2014). In all those cases the applicants were procedurally penalised for errors made by organs of the State, for which they should have borne no responsibility whatsoever.

The present case is, in our opinion, of a very different nature. If the applicant had to pay the costs of the proceedings before the lower courts based on HRK 105,000 being the value of the subject matter of the dispute, it is because her predecessor, M.Z., had indicated during the hearing of 6 April 2005 that that was the correct value. It is true that domestic law did not allow M.Z. to increase the value of the subject matter of the dispute in the course of the proceedings, that the lower courts apparently did not declare M.Z.’s conduct unlawful and instead followed his approach, and that it was only the Supreme Court that noticed that M.Z. had acted in violation of section 40 of the Civil Procedure Act, However, that does not take away the fact that the initial error in the case was committed by the applicant’s predecessor, not a State organ.

The fact that the lower courts did not correct the error made by M.Z. did in our opinion not create an “expectation”, protected under Article 6 § 1 of the Convention, that his appeal to the Supreme Court would be declared admissible (compare paragraph 39 of the judgment).

4. In hindsight, one could say that the applicant was unable to take advantage of the error made by her predecessor (as her appeal to the Supreme Court was declared inadmissible on the basis of the initial value of the subject matter of the dispute), even though she had to undergo the disadvantageous consequences of it (by having to pay the costs of the proceedings at both levels of jurisdiction on the basis of the increased value of the subject matter of the dispute).

Even if the applicant, understandably, is unhappy with such an outcome, we do not consider that that makes the limitation of the right to appeal to the Supreme Court incompatible with Article 6 § 1 of the Convention.

 

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