FOURTH SECTION
DECISION
Application no. 45483/13
Bogomir JELEN and Helena RIFELJ
against Slovenia
The European Court of Human Rights (Fourth Section), sitting on 25 September 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 10 July 2013,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Mr Bogomir Jelen and Ms Helena Rifelj, are Slovenian nationals who were born in 1946 and 1953 respectively and live in Grosuplje. They were represented before the Court by Mr K. Plauštajner, a lawyer practising in Ljubljana.
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 14 March 2005 the applicants concluded a purchase contract with company X for a flat, which included parking space no. 14. On 6 April 2005 the flat in question was handed over to the applicants. After paying the purchase price the applicants requested the originals of the purchase contract. Company X informed the applicants that it had sold parking space no. 14 to another individual. Instead, it offered the applicants another parking space and compensation of 500 euros (EUR). The applicants refused the offer on the grounds that the new parking space was smaller and its location made it difficult to park.
5. On 2 September 2005 the applicants brought civil proceedings against company X with the aim of obtaining documents allowing them to register their ownership of parking space no. 14. Specifically, they requested that the following documents be submitted to them: (a) the originals of the purchase contract; (b) an original annex to the purchase contract certified by a notary, according to which they could register their property right with the Land Registry in respect of the flat and parking space no. 14; and (c) a document certified by a notary according to which they could remove any lien concerning the above property. The applicants fixed the amount in dispute at 2,500,000 tolars (SIT – approximately EUR 10,432).
6. The defendant company lodged a counterclaim, requesting that the applicants sign a modified purchase contract for parking space no. 9. On 19 December 2005 the court invited the defendant company to fix the amount in dispute. On 23 December 2005 the defendant company fixed the amount in dispute at SIT 2,500,000.
7. On 13 April 2006 the Ljubljana District Court upheld the applicants’ claim. On 21 February 2007, following an appeal by the defendant company, the Ljubljana Higher Court quashed the first-instance judgment and remanded the case for re-examination.
8. On 7 February 2008 the applicants requested that an interim judgment be issued concerning the flat. As regards parking space no. 14 they modified their claim, requesting a declaratory judgment finding that they had validly purchased the parking space. The court accepted this modification of the claim.
9. On 13 May 2008 the District Court issued an interim judgment, partly upholding the applicants’ claims (a) and (b) (see paragraph 5 above) concerning the flat whereas it left open the question of ownership over parking space no. 14. The court dismissed claim (c), finding that the property at issue had not been subject to any lien.
10. At the oral hearing of 15 May 2008 the applicants further specified their remaining (modified) claim concerning parking space no. 14 (see paragraph 8 above) by requesting a declaratory judgment that they had purchased it. The court allowed this modification. On the same day the District Court upheld the applicants’ modified claim concerning parking space no. 14 and dismissed the defendant company’s counterclaim.
11. The defendant company appealed against the judgment of 15 May 2008. On 3 December 2008 the Ljubljana Higher Court quashed that judgment and dismissed the applicants’ request for a declaratory judgment, finding that because the respondent had not been the registered owner of parking space no. 14, the applicants could have requested compensation for non-fulfilment of the contract or another parking space only.
12. On 19 January 2009 the applicants lodged an appeal on points of law (revizija) against the Ljubljana Higher Court’s decision of 3 December 2008.
13. At the relevant time the Civil Procedure Act set down a value‑of‑dispute (ratione valoris) threshold for admissibility of an appeal on points of law of EUR 4,172.92. This threshold related to the amount in dispute before the Supreme Court (section 367 of the Civil Procedure Act, see paragraph 19 below).
14. The applicants were ordered by the Ljubljana District Court to pay court fees for their appeal on points of law (see paragraph 12 above) fixed in relation to the amount in dispute set out in the claim (EUR 10,432). The court fees were fixed at EUR 423. The payment order included a notice that an objection could be lodged against it for, inter alia, incorrect determination of the court fees. The applicants paid the fees.
15. On 13 September 2012 the Supreme Court rejected the applicant’s appeal on points of law as inadmissible for failure to fix the amount in dispute. The Supreme Court pointed out that the applicants had modified their claim seeking a declaratory judgment without indicating the value of this modified claim. The amount in dispute as indicated in the original claim, which did not include a claim for a declaratory judgment, could not be taken into account for the purposes of the value-of-dispute threshold. The Supreme Court further observed that the applicants had, initially, fixed an unidentified total amount in dispute of EUR 10,432 with regard to several claims contrary to section 41 of the Civil Procedure Act (see paragraph 19 below), which required the specification of the value of the subject matter of each claim. The applicants’ appeal on points of law would, therefore, have been inadmissible even with regard to their initial claims.
16. The applicants lodged a constitutional complaint alleging, inter alia, a violation of their rights to legal remedy and to equal protection of rights. In particular they argued that pursuant to section 44(2) of the Civil Procedure Act (see paragraph 19 below) the value of the subject matter of the dispute set out in the claim should be decisive. In their view, section 41 of the aforementioned Act did not apply to their case.
17. On 24 January 2013 the Constitutional Court dismissed the applicants’ constitutional complaint, finding that it did not concern an important constitutional question or entail a violation of human rights which would have serious consequences for the applicants.
B. Relevant domestic law and practice
18. The Supreme Court has the competence to decide cases concerning, inter alia, extraordinary legal remedies, and perform other functions provided for by law, such as ensuring uniform case-law.
19. The relevant provisions of the Civil Procedure Act (Official Gazette no. 726/99, with further relevant amendments) state:
Section 39
“If the ... right to appeal on points of law ... is made to depend upon the amount in dispute, the amount shall be defined as the value of the principal claim.
Interest, costs and expenses ... and other accessory claims are not to be taken into account unless they are pursed as a principal claim.”
Section 41
“In actions containing several claims of the same claimant against the same defendant which are based upon the same factual and legal backgrounds, the jurisdiction shall be determined according to the sum of the values of all claims.
If the claims are based upon different backgrounds or are pursued against several defendants, the jurisdiction shall be determined according to the value of each separate claim.”
Section 44
“If in the action containing a non-pecuniary claim the claimant declares his or her willingness to accept a certain sum of money in lieu of satisfying the claim, such a sum shall be considered as the amount in dispute.
In other non-pecuniary claims, the amount in dispute shall be defined as the amount fixed by the claimant in the legal action.
If, in the case referred to in the second paragraph of the present section, the amount in dispute fixed in the action is evidently too high or too low or if the claimant sets out only the overall amount despite the fact that he or she is pursuing several claims against the same defendant, and the conditions under section 41(1) have not been met, thereby putting into question the ... right to appeal on points of law, the court shall, not later than upon the main hearing and before examining the merits, verify the correctness of the fixed amount in an expeditious and appropriate manner. The court decree upon the correctness of the determination of the amount in dispute shall be issued immediately and shall not be subject to appeal.”
Section 45
“If the claim does not concern a monetary sum and where ... the right to appeal on points of law depend[s] on the amount in dispute which the claimant has failed to fix in his or her legal action, the court shall act pursuant to Article 108 hereof governing the proceedings with incomplete pleadings.”
Section 108
“If ... [a claim] is unclear or does not contain all of the information necessary for proceeding with the case, the court shall ask the person ... to correct or supplement. ... [it]. ...”
Chapter 26 – Extraordinary legal remedies
Section 367
“...
In pecuniary disputes an appeal on points of law shall be permitted if the value of the subject matter of the part of the final judgment which is being challenged exceeds [SIT] 1,000,000.
...”
20. Section 18 of the Court Fees Act (Official Gazette no. 37/08), as applicable at the time the appeal on points of law was lodged, provided that when a decision was challenged only in part, the court fees in relation to the respective remedy were to be calculated on the basis of the value of the challenged part of the decision.
21. Section 32 of the Court Fees Act provided as far as relevant as follows:
“(1) The initial value remains the basis for the payment of court fees even if the value has been changed during the proceedings if not otherwise provided in the following paragraphs.
(2) If the court pursuant to section 31 of this Act determined new value [that is when it considered of its own motion or following the respondent’s objection that the value set by the party was too low] the new value should be taken as the basis for the payment of court fees. ...”
22. 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. Furthermore, the following principles can be discerned from the Supreme Court’s case-law, submitted by the Government. An appeal on points of law in pecuniary disputes is permitted if the value of the subject matter of the part of the decision challenged thereby exceeds the statutory value-of-dispute threshold. It is thus crucial for the parties to ensure that the value of such subject matter is defined in a timely and appropriate manner. If the claimant pursues several claims he or she should indicate a value for each of them or else the appeal on points of law may be inadmissible. Appeals on points of law are also not permitted when the value of the subject matter of the dispute is set at the beginning but the claim is subsequently modified without its (new) value being defined. This is so even when the court has failed to invite the claimant to correct this shortcoming and when the respondent has not objected to the claimant’s failure to set out appropriately the value of the subject matter of the dispute. In such a situation both parties lose their right to lodge an appeal on points of law.
23. The Constitutional Court in its decision of 18 October 2007 in a case nos. Up-2089/06 and U-I-106/07 found that even though the first-instance court might have breached the law by not acting in line with section 45 of the Civil Procedure Act this had not amounted to a violation of the equal protection of rights because it had not created a disadvantageous position with respect to access to Supreme Court for the party in question. Both parties could have protected their interest in having access to Supreme Court; the claimant by properly defining the value of the subject-matter of the dispute and the respondent by objecting if the claimant had failed to do so. The Constitutional Court moreover noted that the system whereby the Supreme Court independently assessed the value in dispute in relation to the admissibility of the appeal on points of law, regardless of the lower courts’ assessment of the value of the subject matter of the dispute, was not incompatible with the Constitution. Referring to the principle of legal certainty, it stressed that an appeal on points of law was a remedy which allowed for interference with final judicial decisions and thus required a restrictive approach.
COMPLAINT
24. The applicants complained under Article 6 § 1 of the Convention of having been deprived of access to the Supreme Court. In the applicants’ view the first-instance court should have instructed them to specify the new value of the subject matter of the dispute in accordance with sections 44 and 45 of the Civil Procedure Act.
THE LAW
25. The applicants complained of a violation of their right to 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
26. The Government pleaded non-exhaustion of domestic remedies, submitting that the applicants had failed to set out the arguments they had pursued before the Court in their constitutional complaint.
27. They further argued that the determination, on the one hand, of court fees and, on the other hand, of the admissibility of the appeal on points of law, were two completely different operations. The first one was administrative in nature, was based on the amount in dispute set out in the claim, could be challenged by means of an objection, and had been in the present case done by a first-instance court. The determination of the admissibility of the appeal on points of law was a judicial assessment by the Supreme Court, based on the value of the subject-matter disputed before the Supreme Court.
28. The Government maintained that the applicants should – in their original claim and when making modifications – have set out the appropriate value in dispute, thereby ensuring their access to the Supreme Court. As the latter could not have determined the value of the subject matter challenged in the applicant’s appeal on points of law, it had rightly rejected it. The Supreme Court had followed the well-established case-law of which the applicants, who had been represented by a qualified lawyer, should have been aware. Their failure to comply with the respective requirements could not be attributed to the State.
29. As regards the position of the respondent party in the domestic proceedings in question, the Government submitted that the first-instance court had invited it to set out the value of the counterclaim because this had been important for, inter alia, the subject-matter jurisdiction of that court. The court had had no reason to invite the applicants to do that, as they had set out the overall value of the subject matter of the legal action at the beginning of the proceedings and thus the court had been in a position to proceed on the merits. Moreover, according to the Government, neither the applicants nor the respondent had had the right to appeal on points of law as regards the modified claim: the applicants because they had not set out the value of its subject matter, and the respondent because it had failed to react to this failure during the first-instance proceedings.
30. The Government also submitted that the first-instance court might have overlooked the applicant’s failure to set out the value of the subject matter of the modified claim because at that stage of proceedings this had been no longer relevant, other than for the question of admissibility of the future appeal on points of law.
2. The applicants
31. The applicants argued that they had invoked the main arguments pursued in the proceedings before the Court in their constitutional complaint and had therefore properly exhausted domestic remedies.
32. They further argued, referring to section 18(5) of the Court Fees Act (see paragraph 20 above), that the court fees for the appeal on points of law should have been determined based on the value of the subject matter of the challenged part of the decision, which in their case had been the value of the subject matter of the modified claim. As they had failed to indicate such a value, the Ljubljana District Court should have warned them in accordance with section 45 of the Civil Procedure Act (see paragraph 19 above), just as it had warned the defendant when it had failed to indicate the value of the subject matter of the counterclaim (see paragraph 6 above). The applicants further argued that the court fees had been calculated taking into account the originally specified value of the subject matter of the dispute, while the Supreme Court had not taken into account the same amount for the purpose of examining their appeal on points of law.
33. The applicants disagreed with the Constitutional Court’s decision of 18 October 2007 (see paragraph 23 above). They also pointed out that although the Supreme Court’s case-law might be extensive this does not make it compatible with human rights. In their view, the Supreme Court’s decisions finding that the party’s failure to set out the value of the subject matter of the modified claim precluded access to an appeal on point of law, some of which had been already delivered by 2002, had been contrary to Article 6 § 1 of the Convention.
B. The Court’s assessment
34. The Court takes note of the objection of non-exhaustion of domestic remedies raised by the Government (see paragraph 26 above). However, in the circumstances of the present case, it is not necessary to examine this objection, the present application being in any case inadmissible, for the following reasons.
35. The Court observes that the present case concerns the right of access to the Supreme Court in relation to the application of the value-of-dispute requirement. In Slovenia, for an appeal on points of law to be admissible the value of its subject matter must exceed a statutorily-defined threshold. This value can be determined from the value set out in the legal action or fixed during the proceedings under the conditions set out in the Civil Procedure Act (see paragraph 19 above). The domestic court is required under the aforementioned Act to verify, before examining the merits, that the value of the subject matter has been fixed appropriately.
36. In the present case, the applicants’ appeal on points of law was rejected by the Supreme Court because they had failed to fix the amount of the subject matter of the modified claim which was at stake in the proceeding before the Supreme Court (see paragraph 15 above). The decision was based on the relevant legislation and the Supreme Court’s established case-law, in accordance with which failure to fix properly the value of the subject matter in issue should lead to the rejection of an appeal on points of law. The applicants complained that this requirement had deprived them of access to the Supreme Court. They relied on two arguments. Firstly, the first-instance court had failed to invite them to fix the value of the subject matter of the modified claim although it had warned the respondent when it had failed to set out the value of the subject matter of the counterclaim. Secondly, the court fees for the appeal on points of law had been calculated taking into account the originally specified value of the subject matter of the dispute, while the Supreme Court had not taken this value into account for the value-of-dispute purpose (see paragraph 32 above).
37. Having regard to the foregoing, the Court notes that the present case is similar to the case of Zubac v. Croatia ([GC], no. 40160/12, 5 April 2018), which was recently decided by the Grand Chamber. It refers to the principles set out in §§ 76-99 therein.
38. The Court emphasises that the nature of the restriction at issue, which followed from the relevant domestic law and practice of the Supreme Court, that is to say an obligation to properly fix the value of the subject matter of the dispute, does not in itself appear to have been the result of inflexible procedural rules. The relevant domestic law and practice provided for a possibility of amending the value of the dispute in the situation when a claim is modified during the proceedings (see paragraphs 19 and 22 above) and there is no indication that this opportunity was not open to the applicants. Provided that the value of the modified claim attained the value-of-dispute threshold, the applicants could thus by properly amending the value of the subject matter have secured their access to the Supreme Court. Bearing these considerations in mind, the Court will examine whether the restriction in question was justified, that is to say, whether it pursued a legitimate aim and was proportionate to such an aim (see Zubac, cited above, § 104).
39. The Court observes that the impugned restriction falls within the generally recognised legitimate aim of the statutory value-of-dispute threshold for appeals to the Supreme Court of ensuring that the latter, in view of the very essence of its role, only deals with matters of the requisite significance (see Zubac, cited above, § 105, and paragraph 23 above). As regards the proportionality between this aim and the means employed to achieve it, the Court refers to the criteria considered in Zubac (cited above, §§ 85-99).
40. With regard to the foreseeability of the restriction, the Court finds that it is not disputed that the Civil Procedure Act and the established case-law of the Supreme Court and the Constitutional Court obliged claimants in the proceedings such as the one at stake in the present case to fix the value of the subject matter of the dispute for each of the claims pursued as well as to fix a new value when they modified any of the claims (see paragraphs 19, 22, 23 and 33 above). These rules were also relied on by the Supreme Court in rejecting the applicants’ appeal on point of law (see paragraphs 15, 19 and 22 above). It further finds that it was likewise established in the aforementioned courts’ case-law that the failure of the first-instance court to invite the claimant to comply with the aforementioned obligation did not absolve the parties of their responsibility and did not secure them access to the Supreme Court (see paragraphs 19, 22 and 23 above). The Court thus sees no reason to doubt that the conditions to be satisfied with respect to the admissibility of an appeal on points of law were provided in a coherent and foreseeable manner.
41. It is further noted that the applicants argued that the above-mentioned case-law was inconsistent with the requirements of Article 6 § 1 of the Convention because they had had to bear the consequences of the error of the first-instance court, which had not reacted to their failure to set out properly the value of the subject matter. They alleged that this had resulted in them paying the court fees in the Supreme Court proceedings while having their appeal on points of law rejected (see paragraph 32 above). In this connection the Court emphasises that the applicants were represented by a qualified lawyer and should have been aware of the above-mentioned conditions for the admissibility of an appeal on points of law (see paragraph 40 above). It also finds nothing indicating that the applicants were not on a par with the respondent party. It is true that the latter was reminded to set out the value of the subject matter of its counterclaim (see paragraph 6 above). However, as the Government convincingly explained the respondent apparently failed to indicate any value of the subject matter and the first-instance court needed that information in order to determine subject-matter jurisdiction (see paragraph 29 above). There is no reason to believe that the court would not have done the same had the applicants failed to indicate any value.
42. As regards the applicants’ argument concerning the court fees (see paragraph 32 above), the Court notes that they were set in accordance with the applicable and foreseeable rules and could not be seen as conferring on the applicants any right of access to the Supreme Court (see Zubac, cited above, § 120). Moreover, it was open to the applicants to object to the payment order but it seems that they did not avail themselves of this opportunity (see paragraph 14 above).
43. Lastly, the Court takes note of the specific role of the Supreme Court (see paragraphs 18 and 23 above) and of the coherent and foreseeable rules the applicants were obliged to follow (see paragraph 40 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 applicants’ access to its jurisdiction.
44. Against the above background, 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 18 October 2018.
Andrea Tamietti Georges Ravarani
Deputy RegistrarPresident
Full & Egal Universal Law Academy