FIRST SECTION
DECISION
Application no. 72996/16
Mirjana MIRENIĆ-HUZJAK and Tatjana JERKOVIĆ
against Croatia
The European Court of Human Rights (First Section), sitting on 24 September 2019 as a Chamber composed of:
Krzysztof Wojtyczek, President,
Ksenija Turković,
Armen Harutyunyan,
Pere Pastor Vilanova,
Pauliine Koskelo,
Jovan Ilievski,
Raffaele Sabato, judges,
and Renata Degner, Deputy Section Registrar,
Having regard to the above application lodged on 28 November 2016,
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, Ms Mirjana Mirenić-Huzjak and Ms Tatjana Jerković, are Croatian nationals, who were born in 1959 and 1972 respectively and live in Velika Gorica and Zagreb. They were represented before the Court by Mr A. Šagovac, a lawyer practising in Velika Gorica.
2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicants were the co-owners of two neighbouring plots of land designated as cadastral plots no. 939/6 and no. 939/13. In 1995 they sold plot no. 939/6 to a certain Ms M.M.Non-contentious proceedings for fixing of a boundary
5. The boundary between the two plots was in dispute, so on 25 April 1996 the applicants instituted non-contentious proceedings against M.M. for the fixing of a boundary (izvanparnični postupak za uređenje međa) in the Velika Gorica Municipal Court (Općinski sud u Velikoj Gorici).
6. After several remittals, on 1 June 2006 the Municipal Court, in the presence of the parties and an expert surveyor, carried out an on-site inspection. The expert established that the applicants were the co-owners of plot no. 939/13 with a surface area of 424 square metres, and that M.M. was the owner of plot no. 939/6 with a surface area of 615 square metres; 265 square metres of plot no. 939/13 was disputed. During the on-site inspection the court fixed the boundary between the two plots and on the same day issued a decision to that effect. The decision stated, inter alia, that any neighbour who participated in non-contentious proceedings for the fixing of a boundary could, within six months of the decision becoming final, seek to be declared the owner of a disputed part in regular civil proceedings and could apply for the boundary to be re-set accordingly.
7. On 24 September 2007 the Čakovec County Court (Županijski sud u Čakovcu) dismissed an appeal lodged by the applicants against the Municipal Court’s decision, which thereby became final.Civil proceedings
8. On 19 November 2007 the applicants brought a civil action against M.M. in the Velika Gorica Municipal Court. They sought to be declared the owners and sought repossession of the entire plot no. 939/13 with a surface area of 424 square metres.
9. At a hearing held on 9 October 2008 the applicants’ representative requested that the court allow him time to further specify their claim, in particular to stipulate exactly which part of the plot in question the applicants were seeking to repossess. The court issued a ruling ordering the applicants to specify their claim within fifteen days.
10. In submissions of 15 October 2008 the applicants argued that their claim was clear and precise, and that it referred to plot no. 939/13 in its entirety, as the defendant was appropriating the entire plot.
11. On 10 February 2009 the court decided to obtain an opinion from an expert surveyor. After carrying out an on-site inspection on 27 March 2009, the expert submitted his report on 14 April 2009, stating that the southern part of plot no. 936/13 measuring 265 square metres was in the possession of the defendant.
12. In submissions of 30 April 2009 the applicants adjusted their claim in accordance with the expert’s findings and sought to be declared the owners of the disputed 265 square metres of plot no. 939/13.
13. By a judgment of 11 November 2009 the Municipal Court ruled for the applicants.
14. On 3 February 2010 the defendant appealed.
15. By a decision of 7 December 2011 the Velika Gorica County Court (Županijski sud u Velikoj Gorici) quashed the first-instance judgment and declared the applicants’ action inadmissible as being out of time. In particular, the County Court treated the applicants’ adjustment of their claim on 30 April 2009 (see paragraph 12 above) as a new claim. Seen in that way, the County Court found that this new claim had been brought outside of the statutory time-limit of six months (see paragraph 6 above). It thus declared the applicants’ action inadmissible, relying on section 369(2) of the Civil Procedure Act (see paragraph 21 below).
16. The applicants then, on 1 February 2012, lodged an appeal on points of law (revizija) against the second-instance decision, relying explicitly on section 382(2) of the Civil Procedure Act (see paragraph 21 below). They argued that the decision in the dispute depended on the resolution of a point of procedural law which was important for ensuring the uniform application of the law and equality of all before the law. The relevant part of their appeal on points of law was worded as follows:
“The appeal on points of law is based on the second subparagraph of section 382(2) of the Civil Procedure Act because the second-instance court in the contested decision adopted a view contrary to the Civil Procedure Act. In this way that view is not only contrary to the law but also contrary to the legal view of the [Supreme Court]. Therefore, a decision in the dispute depends on the correct resolution of a point of procedural law that is important for ensuring the uniform application of the law and equality of all in its application. The unlawful legal view of the second-instance court called into question the uniform application of the law.”
17. The applicants contended, in particular, that their submissions of 30 April 2009 (see paragraph 12 above) represented a reduction of the claim, which was always allowed (see section 191(3) of the Civil Procedure Act quoted in paragraph 21 below). Specifically, in their extraordinary appeal the applicants raised the following point of law:
“In the ownership-related civil proceedings initiated after the final decision on the fixing of a boundary, may a claim for repossession be amended six months after [such] decision became final, by reducing (partially withdrawing) the claim as regards the area in dispute? That is, may a claim be specified so to seek repossession of an area smaller than the one initially sought, in line with the report of an expert surveyor?”
18. By a decision of 29 December 2015 the Supreme Court (Vrhovni sud Republike Hrvatske) declared inadmissible the applicants’ appeal on points of law. The relevant part of that decision reads as follows:
“Deciding on the admissibility of the extraordinary appeal on points of law lodged by the plaintiffs, the panel of this court found that their appeal on points of law was inadmissible. That is so because the plaintiffs in their appeal on points of law did not give reasons as to why they considered that the point of law they raised was important for ensuring the uniform application of the law and equality of all in its application. In particular, the plaintiffs’ arguments, confined to serious procedural errors ... allegedly committed by the second-instance court, do not constitute reasons which are important for ensuring the uniform application of the law and equality of all in its application, within the meaning of section 382(3) of the Civil Procedure Act.
Therefore, the statutory requirements for admissibility of the appeal on points of law set out in section 382(3) of the Civil Procedure Act were not met in this case.
In view of the above it was decided, on the basis of section 392b(2) of the Civil Procedure Act, as indicated in the operative provisions of this decision.”
19. On 13 April 2016 the applicants lodged a constitutional complaint against the Supreme Court’s decision, complaining, inter alia, of the unfairness of the proceedings and a denial of access to a court. In so arguing, they relied on Article 29 paragraph 1 of the Croatian Constitution guaranteeing the right to fair proceedings, and on Article 6 § 1 of the Convention.
20. On 25 May 2016 the Constitutional Court (Ustavni sud Republike Hrvatske) declared inadmissible the applicants’ constitutional complaint. It held that the case did not raise a constitutional issue. The Constitutional Court’s decision was served on the applicants’ representative on 27 June 2016.Relevant domestic law and practiceConstitutional Court Act
21. Under section 62(1) of the Constitutional Court Act, anyone who considers that his or her rights guaranteed by the Constitution have been infringed by a decision passed by the judicial or administrative authorities or any other public authority in determination of any of his or her rights or obligations may lodge a constitutional complaint against such decision within thirty days (the text of that provision is reproduced in K.B. and Others v. Croatia, no. 36216/13, § 96, 14 March 2017). Those wishing to lodge a constitutional complaint against a contested decision are normally required to have exhausted other remedies available to them (section 62(2) of the same Act). In civil proceedings, that entails lodging an appeal on points of law with the Supreme Court in cases where the second-instance decision in question is amenable to such appeal (section 62(3)).
22. If the Supreme Court has declared an appeal on points of law inadmissible, that is, rejected it on procedural grounds without examining on the merits the appeal and the second-instance decision being contested, the Constitutional Court will declare any subsequent constitutional complaint against the second-instance decision inadmissible as being lodged outside of the statutory time-limit of thirty days. In such cases the Constitutional Court can only examine whether, in deciding to declare the appeal on points of law inadmissible, the Supreme Court breached any of the complainant’s rights guaranteed by the Constitution.
23. The extraordinary appeal on points of law was introduced into Croatian legal system in its current form (see sections 382 and 392b of the Civil Procedure Act in paragraph 26 below) upon the entry into force of the 2008 Amendments to the Civil Procedure Act on 1 October 2008. After its introduction, Croatian advocates found it difficult to assess whether the Supreme Court would find their appeal on points of law admissible (that is, whether the Supreme Court would find the appeal to be in compliance with the formal requirements for applying for such a legal remedy and whether that court would consider the appeal as raising a point of law that was important for the uniform application of the law). They have therefore started lodging extraordinary appeals on points of law simultaneously with constitutional complaints.
24. In response, the Constitutional Court in such cases has developed a practice whereby it informs the complainants by letter that it will postpone the examination of their constitutional complaint until the Supreme Court has decided on their appeal on points of law. If the complainants’ extraordinary appeal on points of law is eventually declared inadmissible, the Constitutional Court will not declare the constitutional complaint lodged (simultaneously with such appeal) against the second-instance decision inadmissible as being out of time or for failure to properly exhaust available remedies. In particular, the relevant part of the instructions for completing the constitutional complaint form (Upute za ispunjavanje obrasca ustavne tužbe) of 11 April 2016 reads as follows:
“In practice there are cases where it is uncertain whether an appeal on points of law is admissible ...
In the practice of the Constitutional Court this problem has been resolved in the following way: complainants lodge an appeal on points of law against a final second-instance judgment, and if they are not entirely certain whether in the given case their appeal on points of law is admissible or not, they simultaneously lodge a constitutional complaint against [that] judgment ...
The Constitutional Court does not declare such constitutional complaints inadmissible, but postpones their examination pending the Supreme Court’s decision on the appeal on points of law, and (from 11 April 2016) informs the complainants thereof by letter ...
The simultaneous use of an appeal on points of law and a constitutional complaint must be a strict exception! The Constitutional Court will put [the examination of] your constitutional complaint ‘on hold’ only if it considers that there were reasons why you could not assess with certainty whether the appeal on points of law would be considered admissible or not.”
25. To date the Constitutional Court has never declared a constitutional complaint inadmissible on account of the complainant’s failure to lodge beforehand an extraordinary appeal on points of law.Civil Procedure Act
26. The relevant provisions of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia no. 4/77 with subsequent amendments, and Official Gazette of the Republic of Croatia no. 53/91, with subsequent amendments), which has been in force since 1 July 1977, read as follows at the material time:
Amendment of an action
Section 190(1) and (2)
“The plaintiff may amend an action until the conclusion of the main hearing.
After the statement of claim has been served on the defendant, amending the action requires the defendant’s consent. However, even if the defendant opposes the amendment, the court may allow [it] if it finds it appropriate for the final resolution of the issues between the parties.”
Section 191(1) and (3)
“(1) To amend an action means to change the identity of the claim, to increase the existing claim or to submit another claim in addition to the existing one.
(3) The action is not amended if the plaintiff has changed the legal basis of the claim, reduced the claim or changed, supplemented or corrected certain particulars in such a manner that the claim remained unchanged.”
Section 369(2)
“If, in the proceedings before the first-instance court, it was [inter alia, decided on a belated civil action, which thus had to be declared inadmissible] the second-instance court shall quash the first-instance judgment and declare the action inadmissible.”
Section 373a(1)
“The second-instance court shall, by means of a judgment, dismiss the appeal and uphold the first-instance judgment, or reverse the first-instance judgment, if it finds that from the case file it follows:
- that the relevant facts are not disputed between the parties, or
- that it is also possible to establish them on the basis of the documents and the evidence contained in the case file, regardless of whether the first-instance court when making its decision took these documents or the evidence into consideration.”
1. Appeal on points of law
Section 382
“(1) Parties may lodge an appeal on points of law (revizija) against a second-instance judgment:
- if the value of the subject matter of the dispute of the contested part of the judgment exceeds HRK 200,000,
- [in certain employment disputes],
- if the second-instance judgment was adopted in accordance with section 373a or 373b of this Act [that is, if the second-instance court assessed the evidence and/or established the facts differently from the first-instance court or held a hearing].
(2) In cases where the parties are not entitled to lodge an appeal on points of law in accordance with paragraph 1 of this section, they may [nevertheless] do so if a decision in the dispute depends on the resolution of a point of substantive or procedural law [that is] important for ensuring the uniform application of the law and equality of all in its application, for example:
- if the Supreme Court has not yet ruled on that point ... in respect of which there is divergent case-law of the second-instance courts,
- if the Supreme Court has already ruled on that point but the decision of the second-instance court is not in conformity with that ruling,
- if the Supreme Court has already ruled on that point and the decision of the second-instance court is in conformity with that ruling but ... the case-law should be revisited in view of changes in the legal system occasioned by new legislation, international treaties or decisions of the Constitutional Court, the European Court of Human Rights or the Court of Justice of the European Union.
(3) In the [extraordinary] appeal on points of law referred to in paragraph 2 of this section, the appellants must specify the point of law which is the ground for their appeal [together] with specific reference to legislation and other sources of law related thereto, and [must] give reasons as to why they find that point important for ensuring the uniform application of the law and equality of all in its application.
(4) An appeal on points of law must be lodged within thirty days of the service of the second-instance judgment.”
Section 392b
“(1) A panel composed of five judges of the Supreme Court shall declare inadmissible an incomplete, inadmissible [in the strict sense] or belated [extraordinary] appeal on points of law, unless the first-instance court has not already done so. Such a decision shall be reasoned.
(2) The panel referred to in paragraph 1 of this section shall by a decision declare inadmissible an [extraordinary] appeal on points of law if it does not specify the point of law which is the ground for the appeal [together] with specific reference to legislation and other sources of law related thereto, or if it does not give specific reasons as to why the appellant finds that point important for ensuring the uniform application of the law and equality of all in its application.
(3) The panel referred to in paragraph 1 of this section shall declare inadmissible an [extraordinary] appeal on points of law if it finds that the point of law which is the ground for the appeal is not important for ensuring the uniform application of the law and equality of all in its application.”Relevant Council of Europe instruments
27. The relevant part of Recommendation No. R (95) 5 concerning the introduction and improvement of the functioning of appeal systems and procedures in civil and commercial cases, adopted by the Committee of Ministers on 7 February 1995 at the 528th meeting of the Ministers’ Deputies, reads as follows:
Chapter IV- Role and function of the third court
Article 7 - Measures relating to appeals to a third court
“a. The provisions of this recommendation should, where appropriate, apply also to the ‘third court’, where such a court exists, that is a court which exercises control over the second court. Constitutional courts or similar are, for the purposes of this recommendation, not included.
b. In considering measures concerning third courts, states should bear in mind that cases have already been heard by two courts.
c. Appeals to the third court should be used in particular in cases which merit a third judicial review, for example cases which would develop the law or which would contribute to the uniform interpretation of the law. They might also be limited to appeals where the case concerns a point of law of general public importance. The appellant should be required to state his reasons why the case would contribute to such aims.
...”
COMPLAINTS
28. The applicants complained under Article 6 § 1 of the Convention of a violation of their right of access to a court in that the domestic courts had first declared their civil action inadmissible and had then also declared inadmissible their appeal on points of law.
29. The applicants further complained, also under Article 6 § 1 of the Convention, of a breach of the adversarial principle in the proceedings before the second-instance court, insufficient reasoning of the Supreme Court’s decision, and denial of their right of appeal.
THE LAWAlleged violation of Article 6 § 1 of the Convention on account of lack of access to a court
30. The applicants’ complained that their right of access to a court had been violated by (a) the County Court’s decision to declare their civil action inadmissible, and (b) the Supreme Court’s decision to declare inadmissible their appeal on points of law. They relied on Article 6 § 1 of the Convention, which in the relevant part reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”Alleged violation of the right of access to a court on account of the Supreme Court’s decision to declare inadmissible the applicants’ appeal on points of law
31. The Government disputed the admissibility of this complaint, arguing that it was manifestly ill-founded.
(a) The parties’ arguments
(i) The Government
32. The Government submitted that the applicants had not complied with the formal requirements for lodging an extraordinary appeal on points of law.
33. The Government explained that admissibility of that remedy was subject to certain statutory requirements, all of which had to be met in a given case. Notably, the appellants had to, inter alia, give reasons as to why they considered the point raised in their extraordinary appeal to be important for ensuring the uniform application of the law and equality of all before the law (see section 382(3) of the Civil Procedure Act in paragraph 26 above). The Supreme Court was not entitled to raise such point of law on its own motion or to speculate on the reasons why an appellant considered the raised point important.
34. The applicants in the present case had not complied with those requirements because they had failed to give reasons as to why they had considered the point of law raised in their extraordinary appeal important for the uniform application of the law. The Government referred to the case of Krpić v. Croatia ((dec.), no. 75012/12, §§ 39, 41 and 43, 31 May 2016), where the same omission had led the Court to declare the access-to-court complaint inadmissible as manifestly ill-founded. They thus invited the Court to do the same in the present case.
(ii) The applicants
35. The applicants submitted that the Government’s arguments relying on the alleged shortcomings in lodging their extraordinary appeal on points of law were misleading because their appeal had in any event been admissible under the third subparagraph of section 382(1) of the Civil Procedure Act (see paragraph 26 above).
36. The applicants explained that the second-instance court in its decision of 7 December 2011, whereby it reversed the first-instance decision of 11 November 2009, had assumed the role of a first-instance court (see paragraphs 13 and 15 above). The second-instance court had done so without hearing the parties and had thereby breached the principle of adversarial hearing. What is more, it had done so without relying on section 373a of the Civil Procedure Act, which would have made it clear that the applicants were entitled to lodge a regular appeal on points of law (redovna revizija) under the third subparagraph of section 382(1) of the same Act (see paragraphs 15 and 26 above).
37. When deciding on their extraordinary appeal on points of law, the Supreme Court had failed to take those circumstances into account and had declared their appeal inadmissible without valid reasons and in an arbitrary manner. By so doing the Supreme Court had breached their right to appeal guaranteed by the Convention and the Croatian Constitution.
(b) The Court’s assessment
38. The relevant principles emerging from the Court’s case-law concerning the right of access to a court, and in particular, access to the superior courts, are summarised in the case of Zubac v. Croatia [(GC], no. 40160/12, §§ 76-86, 5 April 2018).
39. The Court first notes that in the present case the applicants in their appeal on points of law did not rely on the third subparagraph of section 382(1) of the Civil Procedure Act; nor did they advance any arguments to the effect that their appeal should be treated as a regular appeal on points of law. Rather, they explicitly relied on section 382(2) of the Civil Procedure Act (see paragraphs 16-17 and 26 above), that is to say, they lodged a so-called extraordinary appeal on points of law. In these circumstances it cannot be argued, as the applicants sought to do (see paragraphs 35-37 above), that the Supreme Court should have examined their appeal as a regular appeal on points of law.
40. The Court further notes that the Supreme Court examined the applicants’ appeal as an extraordinary appeal on points of law and declared it inadmissible because they had failed to comply with the formal requirements of domestic law, namely, they had failed to give reasons as to why they considered the point raised in their extraordinary appeal to be important for ensuring the uniform application of the law, and equality of all before the law. In so doing, the Supreme Court acknowledged that the applicants had provided some reasons, but held that those reasons related solely to the alleged procedural errors committed by the second-instance court, rather than to the importance of the raised point for the uniform application of the law (see paragraph 18 above).
41. Having regard to its case-law on the matter (see Trevisanato v. Italy, no. 32610/07, §§ 32-47, 15 September 2016, and Krpić, cited above, §§ 39, 41 and 44) as well as to the relevant Council of Europe instruments (see paragraph 27 above), the Court considers that in the given circumstances it cannot be said that the Supreme Court’s decision declaring the applicants’ appeal on points of law inadmissible amounted to excessive formalism involving an unreasonable and particularly strict application of procedural rules unjustifiably restricting the applicants’ access to its jurisdiction.
42. It follows that this complaint is inadmissible under Article 35 § 3 (a) of the Convention as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 thereof.Alleged violation of the right of access to a court on account of the County Court’s decision to declare the applicants’ civil action inadmissible
43. The Government disputed the admissibility of this complaint on two grounds. They argued, first, that the applicants had failed to properly exhaust domestic remedies and, secondly, that the complaint was, in any event, manifestly ill-founded.
(a) Exhaustion of domestic remedies
(i) The parties’ arguments
The Government
44. The Government submitted that an extraordinary appeal on points of law was an effective domestic remedy which the applicants had been required to exhaust in order to comply with their obligation under Article 35 § 1 of the Convention. However, as already explained above (see paragraphs 32-34), the applicants had failed to properly exhaust that remedy. The applicants could have averted the negative consequences of their appeal on points of law being declared inadmissible by lodging a constitutional complaint simultaneously with that remedy (see paragraphs 23-24 above). However, they had failed to do so.
45. The Government submitted that an extraordinary appeal on points of law was a legal remedy with a dual purpose. It was primarily aimed at ensuring the uniform application of the law and equality of all before the law (its public-law purpose), which was also the Supreme Court’s role under the Croatian Constitution. Its second purpose was to protect the rights of individuals, that is, to ensure that a lawful decision was rendered in the given case (its private-law purpose). Therefore, while in an extraordinary appeal on points of law appellants could complain of breaches of their rights committed by the lower courts, that remedy could be used only if a decision in a case depended on the resolution of a point of substantive or procedural law which was important for ensuring the uniform application of the law and the equality of all before of the law (see section 382(2) of the Civil Procedure Act in paragraph 26 above).
46. Following such an appeal, the Supreme Court could quash or reverse the contested second-instance decision, which meant that it was a remedy capable of redressing the breaches complained of.
47. The answer to the question whether or not the point of law raised in an extraordinary appeal on points of law was important for the uniform application of the law did not depend on the Supreme Court’s discretion in the sense that it would render that remedy ineffective. That was why the Supreme Court was required to give reasons when it did not agree with the appellant on the importance of the raised point of law (see section 392b of the Civil Procedure Act in paragraph 26 above). The Supreme Court did so by, for example, stating that it had already provided an answer to the given point of law in its earlier decisions.
48. As regards the issue of judicial discretion and its impact on the effectiveness of a remedy, the Government generally remarked that within the constraints of the law, any decision of any domestic court ultimately depended on that court’s assessment. However, that did not mean that a particular legal remedy was a discretionary remedy, within the meaning of the Court’s case-law (the Government referred, in particular, to Knapić v. Croatia (dec.), no. 2839/08, 4 June 2009) which would make it ineffective.
49. Lastly, the Government pointed out that the Croatian Constitutional Court often declared constitutional complaints inadmissible on the grounds that the case did not raise a constitutional issue. That necessarily entailed a degree of judicial discretion similar to that exercised by the Supreme Court when deciding extraordinary appeals on points of law. Yet, under the Court’s case-law there was no doubt that a constitutional complaint was an effective remedy. The Government thus saw no reason why the two remedies should be treated differently.
50. In the light of the foregoing (see paragraphs 44-50 above), the Government invited the Court to find that an extraordinary appeal on points of law was an effective remedy to be exhausted for the purposes of Article 35 §1 of the Convention. The applicants had failed to properly exhaust domestic remedies by not complying with the formal requirements of domestic law to lodge such an appeal (see paragraphs 26-28 above) and by not lodging their constitutional complaint simultaneously with that remedy (see paragraphs 23-24 and 44 above).
The applicants
51. The applicants raised no separate arguments in addition to those summarised in paragraphs 35-37 above.
(ii) The Court’s assessment
52. For the reasons set out below (see paragraphs 54-56), the Court does not find it necessary to examine all the arguments raised by the parties.
53. At the outset the Court reiterates that if more than one potentially effective remedy is available, the applicant is only required to have used one of them (see Moreira Barbosa v. Portugal (dec.), no. 65681/01, ECHR 2004‑V (extracts); Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, ECHR 2005‑XII (extracts); Karakó v. Hungary, no. 39311/05, § 14, 28 April 2009; and Aquilina v. Malta [GC], no. 25642/94, § 39, ECHR 1999‑III). Indeed, when one remedy has been attempted, use of another remedy which has essentially the same purpose is not required (see Riad and Idiab v. Belgium, nos. 29787/03 and 29810/03, § 84, 24 January 2008; Kozacıoğlu v. Turkey [GC], no. 2334/03, §§ 44 et seq., 19 February 2009; Micallef v. Malta [GC], no. 17056/06, § 58, ECHR 2009; and Lagutin and Others v. Russia, nos. 6228/09 and 4 others, § 75, 24 April 2014). It is for the applicant to select the remedy that is most appropriate in his or her case (see O’Keeffe v. Ireland [GC], no. 35810/09, §§ 110-111, ECHR 2014 (extracts)). To sum up, if domestic law provides for several parallel remedies in different fields of law, an applicant who has sought to obtain redress for an alleged breach of the Convention through one of these remedies is not necessarily required to use others which have essentially the same objective (see Jasinskis v. Latvia, no. 45744/08, §§ 50 and 53-54, 21 December 2010). Therefore, the central issue in the present case is whether an extraordinary appeal on points of law is an effective remedy to be exhausted for the purposes of Article 35 §1 of the Convention.
54. In this connection it is sufficient to note that an extraordinary appeal on points of law is a remedy which may be granted only if the appellants persuade the Supreme Court that their case raises a point of law which is important for the uniform application of the law (see section 382(2) of the Civil Procedure Act in paragraph 26 above). It is therefore evident that this remedy is not capable of addressing those Convention complaints which do not concern divergent domestic case-law. The Court thus considers that an extraordinary appeal on points of law cannot be considered effective in respect of such complaints.
55. In the present case the applicants complained before the Court that the County Court’s decision of 7 December 2011 to declare their civil action inadmissible had been in breach of their right of access to a court (see paragraphs 28 and 30 above). They did not argue that the decision in question was not in conformity with the Supreme Court’s case-law, that other county courts had been ruling differently in similar cases or that their complaint in any way concerned divergent domestic case-law.
56. Thus, instead of lodging a constitutional complaint directly against the County Court’s decision of 7 December 2011, the applicants lodged an extraordinary appeal on points of law (see paragraphs 15, 16 and 19 above) – a remedy which cannot be considered effective in their particular case. They have therefore failed to properly exhaust domestic remedies.
57. It follows that this complaint is inadmissible under Article 35 § 1 of the Convention for non-exhaustion of domestic remedies and must be rejected pursuant to Article 35 § 4 thereof.
(b) As regards the issue whether the complaint is manifestly ill-founded
58. In view of its finding that this complaint is inadmissible for non-exhaustion of domestic remedies, the Court does not find it necessary to address the Government’s remaining inadmissibility objection based on the argument that this complaint is manifestly ill-founded.Other alleged violations of Article 6 § 1 of the Convention
59. The Court notes that in their observations of 7 March 2019 the applicants developed and elaborated on certain submissions contained in their application form in a manner which made it clear that they wished to present those submissions as separate complaints rather than as factual background or arguments supporting their access-to-court complaints examined above (see paragraphs 30-58). In particular, they submitted that the proceedings before the Velika Gorica County Court as the second-instance court had not been adversarial, that the Supreme Court had not given sufficient reasons for its decision to declare their appeal on points of law inadmissible, and that, as a result thereof, they had been denied the right to appeal against the County Court’s decision.
60. The Court reiterates that the applicants may subsequently elucidate or elaborate upon their initial submissions, and that it must take into account not only the application form but the entirety of their submissions in the course of the proceedings before it, which may eliminate any initial omissions or obscurities (see, for example, Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 129, 20 March 2018).
61. However, even assuming that the applicants’ initial inchoate submissions could be construed as separate complaints and thus susceptible of being subsequently elaborated on, the Court’s notes that
- the complaint concerning the alleged lack of adversarial character of the proceedings before the Velika Gorica County Court is inadmissible for non-exhaustion of domestic remedies, for the same reasons as the applicants’ access-to-court complaint concerning that court’s decision of 7 December 2011 (see paragraphs 39-42 above);
- the complaint concerning the alleged lack of reasoning by the Supreme Court when declaring inadmissible the applicants’ appeal on points of law is manifestly ill-founded because that court gave sufficient reasons for its decision (see paragraphs 18 and 39 above); and
- the complaint concerning the alleged breach of the right to appeal is also manifestly ill-founded because the Convention does not guarantee such a right in civil proceedings (see, for example, McLeod v. the United Kingdom (dec.), no. 24755/94, 26 June 1996).
62. It follows that this part of the application is also inadmissible under Article 35 §§ 1 and § 3 (a) of the Convention for non-exhaustion of domestic remedies and as manifestly ill-founded, and must be rejected pursuant to Article 35 § 4 thereof.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 31 October 2019.
Renata DegnerKrzysztof Wojtyczek
Deputy RegistrarPresident
Full & Egal Universal Law Academy