FOURTH SECTION
DECISION
Application no. 39484/14
Mirjan FLEGO
against Slovenia
The European Court of Human Rights (Fourth Section), sitting on 27 November 2018 as a Committee composed of:
Georges Ravarani, President,
Marko Bošnjak,
Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above application lodged on 22 May 2014,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Mirjan Flego, is a Slovenian national who was born in 1956 and lives in Lucija. He was represented before the Court by Mr E. Dokič, a lawyer practising in Piran.
2. The Slovenian Government (“the Government”) were represented by their Agent, Ms T. Mihelič Žitko, State Attorney.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 24 June 2009 the applicant and his mother commenced proceedings to establish their property rights over a parcel of land, claiming one half of the land each. In the legal action they indicated a value for the subject matter of the dispute of 15,000 euros (EUR).
5. On 25 January 2013 the Koper District Court dismissed their claim. On 19 November 2013 the Koper Higher Court upheld the first-instance judgment. Neither of the two courts noted the value of the subject matter of the dispute in their judgments but referred to the subject of the dispute in descriptive terms (“establishment of property rights”).
6. On 17 December 2013 the applicant and his mother, who were represented by a practising lawyer, lodged an application for leave to appeal on points of law (predlog za dopustitev revizije) against the Koper Higher Court judgment of 19 November 2013. Enclosed with the application were the judgments of the first- and second-instance courts.
7. According to an official note of 20 December 2013, a judicial clerk of the Supreme Court called the administrator of the Koper District Court and learnt that the value of the subject matter of the dispute before the first-instance court had been specified as EUR 15,000. On 20 December 2013 the Supreme Court ordered the applicant and his mother to pay the court fees for their application based on the indicated claim value of EUR 15,000. The applicant and his mother paid the fees.
8. On 13 February 2014 the Supreme Court rejected the application as incomplete. It held that it had to examine compliance with formal requirements before considering the merits of the application. In relation to this, it reiterated that the party submitting the application bore the burden of presenting the facts and of proof of compliance with the formal requirements of the procedure. The Supreme Court pointed out that it was not obliged to look for the missing information of its own accord, even to correctly determine and justify the amount in dispute before that court. The latter was, according to the Supreme Court, important for the purposes of examining the admissibility of the application vis-à-vis the value threshold, as leave to appeal on points of law could only be granted if the amount in dispute exceeded EUR 2,000 and did not exceed EUR 40,000 (section 367 (2) and (4) of the Civil Procedure Act, see paragraph 11 below). Referring to its principled opinion of 1993 (see paragraph 13 below), the Supreme Court further held that no party had the right to appeal on points of law if the value of the subject matter of the dispute had not been specified. The court observed that neither the application for leave to appeal nor the supporting documents submitted by the applicant, namely the first- and second-instance judgments, showed that the applicant had specified the amount in dispute at any point during the proceedings. Consequently, an appeal on points of law would be inadmissible, meaning that the court could not grant the parties the leave sought.
9. On 10 April 2014 the Constitutional Court refused to accept a constitutional complaint lodged by the applicant for consideration, finding that it did not concern an important constitutional question or entail a violation of human rights with serious consequences for the applicant.
B. Relevant domestic law and practice
1. The Civil Procedure Act
10. The Supreme Court has competence to decide cases concerning, inter alia, extraordinary legal remedies, and to perform other functions provided for by law, such as ensuring uniform case-law.
11. The relevant provisions of the Civil Procedure Act (Official Gazette no. 73/07, with further relevant amendments), as in force at the relevant time, stated:
Section 367
“...
In pecuniary disputes an appeal on points of law shall be admissible if the value of the subject matter of the part of the final judgment which is being challenged exceeds EUR 40,000 (an admissible appeal on points of law).
If an appeal on points of law under the preceding paragraph is not admissible, it shall only be admissible in the event that leave to appeal is granted by the court pursuant to section 367a of this Act (granted leave to appeal on points of law).
If the law stipulates that no appeal on points of law shall be permitted or if the value of the subject matter of the part of the final judgment which is being challenged does not exceed EUR 2,000, the court shall not grant leave to appeal on points of law ...”
Section 367a
“The Supreme Court shall grant leave to appeal on points of law when its decision is expected to tackle a legal question that has importance in terms of legal certainty, the uniform application of the law or the development of the law through case-law...
The Supreme Court decides whether to grant leave to appeal on points of law on the basis of the party’s application for leave to appeal on points of law.”
Section 367b
“...
An application for leave to appeal on points of law shall be lodged with the Supreme Court.
A party shall append a copy of the final judgment of the court of second instance to the application for leave to appeal on points of law; he or she may also append a copy of the first-instance court’s judgment and copies of any other documents of the case file showing any procedural error alleged.
In the application for leave to appeal on points of law a party shall indicate in a precise and specific manner the contentious legal question and the provision of law allegedly infringed; the circumstances showing the importance of the legal question concerned; and briefly state the reasons why the court of second instance had erred in its judgment ...
If a party fails to comply with [the above paragraphs] ... of this section, an application for leave to appeal on points of law shall be rejected.”
2. The Court Fees Act
12. Section 32 of the Court Fees Act (Official Gazette no. 37/08 with further amendments) provides, as far as relevant, as follows:
“(1) The initial value remains the basis for the payment of court fees even if the value has changed during the proceedings ...”
3. The domestic case-law
13. According to the Supreme Court’s published principled opinion of 16 December 1993, if the claimant fails to indicate the value of the subject matter of the dispute in the claim, he or she has no right to appeal on points of law. This opinion has consistently been followed in domestic case-law, making it crucial for parties to ensure that the value of the subject matter is defined in a timely and appropriate manner.
14. It transpires from the Supreme Court’s case-law that anyone who lodges an extraordinary legal remedy is obliged to demonstrate that the conditions of admissibility have been duly met (decisions nos.: II DoR 214/2009 of 25 November 2009 and II DoR 63/2010 of 8 April 2010). Furthermore, the appellant has the burden of proving the compliance with the formal requirements (decision no. II DoR 165/2011 of 14 July 2011).
15. The Supreme Court has previously rejected applications for leave to appeal on points of law as incomplete when the value of the subject matter in dispute was not evident from the application and supporting documents (decisions nos.: II DoR 27/2010 of 1 April 2010 and II DoR 191/2010 of 16 September 2010). In decision no. III DoR 117/2010 of 8 March 2011, the Supreme Court rejected an application for leave to appeal on points of law because the appellant had failed to submit any evidence which could prove that the value of the subject matter had been defined in accordance with the Civil Procedure Act, noting that the value of the subject matter had not been evident from the judgments of the lower courts that the appellant had submitted to the court.
COMPLAINT
16. The applicant complained under Article 6 § 1 of the Convention of having been deprived of access to the Supreme Court. In the applicant’s view, the Supreme Court’s interpretation of the procedural rules concerning the requirement to specify the amount in dispute in the application for leave to appeal on points of law was excessively formalistic and restrictive.
THE LAW
17. The applicant complained of a violation of his right of access to court under Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
A. The parties’ submissions
1. The Government
18. The Government pleaded inadmissibility ratione materiae, submitting that the Supreme Court, when deciding on the application for leave to appeal on points of law, had not ruled on a “civil right” within the meaning of Article 6 of the Convention, but on the admissibility of a legal remedy.
19. The Government further argued that the procedural rules of access to the Supreme Court, which admittedly limited the right of access to court, were aimed at ensuring legal certainty and sound management of court proceedings. In their opinion, the negative consequences of submitting an incomplete application for leave to appeal on points of law were foreseeable and could have been avoided had the applicant, who had been represented by a qualified lawyer, acted with sufficient diligence.
20. Furthermore, the Government contended that the determination, on the one hand, of court fees and, on the other hand, of the admissibility of the application, were two completely different operations. The first was based exclusively on the amount in dispute set out in the initial claim (see paragraph 12 above), which was the only relevant amount for the calculation of court fees throughout the proceedings. The second was a judicial assessment by the Supreme Court, based in part on the value of the subject matter in dispute before the Supreme Court.
2. The applicant
21. The applicant argued that the Koper District and Higher Courts should have set out the value of the subject matter in dispute in the introduction to the written copy of the judgments. As they had failed to do so, the applicant should not have been made to bear the negative consequences of the courts’ omission.
22. Furthermore, he maintained that no rule obliged him to indicate the value of the subject matter in dispute in the application seeking leave to appeal on points of law. In his opinion, the Supreme Court’s interpretation of the party’s obligation to set out the value of the subject matter in dispute in the application for leave to appeal on points of law had been too restrictive and thus incompatible with Article 6 § 1 of the Convention.
23. The applicant further argued that the court fees had been calculated by the Supreme Court taking into account the amount in dispute that he had set out in the claim, but that the Supreme Court had then failed to take into account the same figure for the purpose of examining his application for leave to appeal on points of law.
B. The Court’s assessment
24. The Court notes that the Government argued that the present complaint was inadmissible ratione materiae because the Supreme Court had not ruled on a“civil right (see paragraph 18 above). It notes in this respect that Article 6 § 1 of the Convention has been previously found to be applicable to leave-to-appeal proceedings before the highest domestic courts (see the case-law referred to in Valchev and Others v. Bulgaria (dec.), no. 47450/11 and 2 others, §§ 69-71, 21 January 2014, and Monnell and Morris v. the United Kingdom, 2 March 1987, § 54, Series A no. 115). Furthermore, the Court does not discern any reason which would make it doubt the existence of a dispute over an arguable civil claim in the present case. Therefore, it finds Article 6 § 1 of the Convention applicable in its civil limb and dismisses the Government’s plea of inadmissibility ratione materiae.
25. The Court observes that in the present case the applicant’s application for leave to appeal on points of law was rejected by the Supreme Court as incomplete because he had failed to indicate and justify the amount of the subject matter at stake in the proceedings before the Supreme Court (see paragraph 8 above).
26. The Court notes that the present case concerns the right of access to the Supreme Court in relation to the application of the requirement to properly specify the value of the dispute. In this respect the case is similar to the case of Zubac v. Croatia [GC] (no. 40160/12, 5 April 2018). The Court refers to the relevant principles regarding the measures restricting access to the highest national courts set out in §§ 76-99 therein. It finds it particularly important to note that the Court, in general, accepts the legitimacy and permissibility of ratione valoris restrictions on access to the supreme courts in Europe and the domestic authorities’ margin of appreciation in regulating their modalities (see, mutatis mutandis, Zubac, cited above, § 73). It is now for the Court to examine whether the manner in which the Supreme Court applied the ratione valoris restriction in the applicant’s case prevented him from using an available remedy (see Miragall Escolano and Others v. Spain, nos. 38366/97 and 9 others, §§ 33 and 36, ECHR 2000‑I).
27. Bearing in mind the above principles, the Court considers, in the first place, that the procedural rule at issue falls within the recognised legitimate aim of ensuring that the Supreme Court, which only deals with matters of the requisite significance, can conduct proceedings expeditiously and in a simplified manner (see, mutatis mutandis, Miessen v. Belgium, no. 31517/12, § 71, 18 October 2016). The Court will proceed to examine whether the formal requirement in question was foreseeable from the applicant’s point of view and whether the sanction for failure to follow that procedure infringed the proportionality principle (see Lanschützer GmbH v. Austria (dec.), no. 17402/08, § 33, 18 March 2014).
28. As regards the applicant’s argument that he had to bear the consequences of the error of the first- and second-instance courts, which had failed to set out the value of the subject matter in the introduction to the judgments (see paragraph 21 above), the Court notes that the applicant did not convincingly argue, let alone demonstrate, that the domestic courts had committed any procedural errors in failing to include this information or that the judgments had not been drafted in accordance with domestic law.
29. In any event, the Court observes that the Civil Procedure Act and the established case-law of the Supreme Court obliged appellants in proceedings such as those at stake in the present case to indicate and prove the value of the subject matter in dispute in their application for leave to appeal on points of law (see paragraphs 11, 14 and 15 above). In particular, the Court notes that an application for leave to appeal on points of law is lodged directly with the Supreme Court (section 367b of the Civil Procedure Act, see paragraph 11 above). When considering an application for leave to appeal on points of law the Supreme Court is therefore limited to the information provided in the application and its supporting documents (see section 367a(2) of the Civil Procedure Act). In this connection, the Supreme Court’s case-law clearly indicates an obligation on appellants to demonstrate that the conditions of admissibility were duly met (see paragraph 14 above). In the present case the Supreme Court was not able to establish the amount of the value in dispute, which was important for the purpose of examining the admissibility of the application vis-à-vis the value threshold, either from the application itself or from the judgments of the lower courts that the applicant had submitted with the application.
30. Having regard to the practice of the Supreme Court, which has previously rejected as incomplete applications for leave to appeal on points of law lodged in the same circumstances as in the present case (see paragraph 15 above), and the relevant provisions of the Civil Procedure Act, the Court sees no reason to doubt that the procedural rules to be followed with respect to lodging an application for leave to appeal on points of law were coherent and foreseeable. In this connection, the Court emphasises that the applicant was represented by a qualified lawyer and should have been aware of the procedural rules for lodging the application at issue (see paragraph 29 above).
31. As regards the applicant’s argument concerning the court fees (see paragraph 23 above), the Court notes that they were set in accordance with applicable and foreseeable rules and could not be seen as conferring on the applicant any right of access to the Supreme Court (see Zubac, cited above, § 120). The Court considers that the administrative enquiry carried out by the Supreme Court’s judicial clerk to find out about the value of the subject matter of the dispute before the first-instance court for the purposes of calculating the court fees (see paragraph 7 above), cannot be regarded as having exempted the applicant from formally stating the value in dispute for the purposes of the admissibility of the remedy at issue, as required by law.
32. Lastly, the Court takes note of the specific role of the Supreme Court (see paragraph 10 above) and of the coherent and foreseeable rules the applicant was obliged to follow (see paragraph 29 above). It refers to the considerations set out in Zubac (cited above, §§ 122 and 123) and accordingly finds that the Supreme Court’s decision, applying the aforementioned mandatory rules, could not be said to amount to excessive formalism unjustifiably restricting the applicant’s access to its jurisdiction.
33. Accordingly, the Court considers that the present application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 20 December 2018.
Andrea TamiettiGeorges Ravarani
Deputy RegistrarPresident
Full & Egal Universal Law Academy