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FIRST
SECTION
CASE OF VUSIĆ v. CROATIA
(Application
no. 48101/07)
JUDGMENT
STRASBOURG
1 July
2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Vusić v.
Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Khanlar
Hajiyev,
Dean
Spielmann,
Sverre
Erik Jebens,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 10 June 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 48101/07) 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 Croatian national, Mr Zvonko Vusić (“the
applicant”), on 14 September 2007.
- The
applicant was represented by Mrs B. Čamovski, an advocate
practising in VaraZdin. The Croatian Government (“the
Government”) were represented by their Agent, Mrs Š.
StaZnik.
- On
3 September 2008 the President of the First Section decided to
communicate the complaint concerning the right to a fair hearing to
the Government. It was also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1962 and lives in VaraZdin.
- On
30 March 1988 the applicant brought a civil action in the VaraZdin
Municipal Court (Općinski sud u VaraZdinu) against a
certain J.V., seeking to recover possession of a house in VaraZdin,
claiming that the house had been donated to him. In his statement of
claim (tuZba) he indicated 1,000,000 former Yugoslav dinars
(YUD) as the value of the subject matter of the dispute.
- In
his submission to the court of 1 March 2001 the applicant indicated
that the value of the subject matter of the dispute was 101,000
Croatian kunas (HRK) and explained that he had adjusted the value in
line with inflation, the change of currency (see paragraphs 20-22
below) and the increase of his claim.
- On
25 September 2001 the applicant amended his claim, seeking also to
register ownership of the house in his name in the land register.
- On
5 July 2002 the Municipal Court ruled against the applicant. On
26 November 2002 the VaraZdin County Court (Zupanijski sud u
VaraZdinu) dismissed an appeal (Zalba protiv presude) by
the applicant and upheld the first-instance judgment.
- On
6 March 2003 the applicant lodged an appeal on points of law
(revizija protiv presude) against the second-instance
judgment. On 26 March 2003 the VaraZdin Municipal Court declared
his appeal on points of law inadmissible ratione valoris
because it considered that the value of the subject matter of the
dispute was below the statutory threshold of HRK 100,000. It
found that the value of the subject matter of the dispute indicated
by the applicant in his statement of claim had been YUD 1,000,000,
which, when converted into kunas, was HRK 1 (one kuna).
- The
applicant appealed against that decision (Zalba protiv rješenja),
arguing, inter alia, that in his submission of 1 March 2001 he
had adjusted the value of the subject matter of the dispute and that
the new value exceeded the statutory threshold of HRK 100,000. On 20
May 2003 the VaraZdin County Court dismissed his appeal. It held
that, pursuant to the Civil Procedure Act, the relevant value of the
subject matter of the dispute was the one indicated by the plaintiff
in the statement of claim and that subsequent changes were of no
relevance. It also corrected the calculation of the first-instance
court, stating that, when converted into kunas, the value of the
subject matter of the dispute which the applicant had indicated in
his statement of claim in fact amounted to only HRK 0.10 (ten lipas).
- The
applicant then lodged with the Supreme Court (Vrhovni sud
Republike Hrvatske) a procedural appeal on points of law
(revizija protiv rješenja) against that decision. On 25
February 2004 the Supreme Court, sitting as a panel composed of
judges B.G., V.P.R., I.M., P.M. and G.G., quashed the
lower-instances’ decisions of 26 March and 20 May 2003. It held
that, while it was true that the relevant value of the subject matter
of a dispute was the one indicated by the plaintiff in the statement
of claim, that rule did not apply if the plaintiff subsequently
amended his or her claim. Because, in the present case, the applicant
did amend his claim in his submission of 25 September 2001,
in which he also demanded costs corresponding to the new value of the
subject matter of the dispute indicated in his previous submission of
1 March 2001, the Supreme Court concluded that the applicant’s
appeal on points of law of 6 March 2003 was admissible. The Supreme
Court returned the case to the first-instance court in order to serve
the applicant’s appeal on points of law of 6 March 2003 to the
respondent party for reply (section 390(1) of the Civil Procedure
Act). The relevant part of the Supreme Court’s decision read as
follows:
“I The plaintiff’s appeal on
points of law is well founded. Therefore, the decision of the
VaraZdin County Court, no. GZ-569/03 of 20
May 2003 and the decision of the VaraZdin Municipal Court, no.
P-274/92 of 26 March 2003 are hereby quashed and the case is remitted
to the first-instance court for fresh proceedings.
II The costs of the proceedings [incurred] in
respect of this appeal on points of law shall be decided in a final
decision.
Reasons
...
The appeal on points of law is well-founded.
...
A decision on whether the appeal on points of law is
well-founded depends on the resolution of the procedural question
which value of the subject matter of the dispute is relevant.
Section 40(2) of the Civil Procedure Act provides that
when an action does not concern a sum of money, the relevant value
shall be the value of the subject matter of the dispute indicated by
the plaintiff in the statement of claim.
Once the value of the subject matter of the dispute has
been indicated in this way, the plaintiff is not allowed to change it
in the subsequent course of the proceedings, except in a case in
which the action has been amended, in which case instead of the value
of the subject matter of the dispute indicated in the statement of
claim, [the plaintiff] is authorised to indicate a new value of the
subject matter of the dispute.
In the case at issue, the following facts are important
for determining the relevant value of the subject matter of the
dispute and the admissibility of the appeal on points of law:
1. By the action of 13 May 1998 the plaintiff
sought that a certain immovable property be handed over into his
possession, and indicated 1,000,000 [former Yugoslav] dinars as the
value of the subject matter of the dispute, [the amount of] which
today equals 0,10 [Croatian] kunas;
2. In the submission of 1 March 2001 the
plaintiff indicated a new value of the subject matter of the dispute
in the amount of 101,000 [Croatian] kunas;
3. By the submission of 25 September 2001 the
plaintiff amended the action by adding to the existing claim that a
certain immovable property be handed over into his possession the
claim for issuance of the permission to
register the property (clausula intabulandi), in order
to record the ownership of that immovable property in the land
register. In that submission, he specified the claim for costs of the
proceedings in accordance with the value of the subject matter of the
dispute of 101,000 [Croatian] kunas.
Having regard to such a procedural situation in respect
of the value of the subject matter of the dispute, this court finds
that in the case at issue the amount of 101,000 [Croatian] kunas
has to be considered as the relevant value of the subject matter of
the dispute, [that is,] the amount the plaintiff indicated in his
submission of 1 March 2001 which [submission] preceded the amendment
of the action. This is so because in the instant case it cannot be
argued that the plaintiff has agreed that, even after the amendment
of the action, the relevant value of the subject matter of the
dispute should remain the one indicated in the statement of claim.
Namely, from the circumstances of the present case it
may be rightly concluded that in his submission of 25 September 2001
the plaintiff failed to indicate the value of the subject matter of
the dispute in the amount of 101,000 [Croatian] kunas, considering
that he had already done so in the submission of 1 March 2001. This
is especially so if one takes into account the fact that in the
submission of 25 September 2001 he specified his claim for costs of
the proceedings in accordance with the newly indicated value of the
subject matter of the dispute.
Finding for these reasons that the value of the subject
matter of the dispute of 101,000 [Croatian] kunas is [the] relevant
[value] for determining the admissibility of the appeal on points of
law, it cannot but be concluded, in accordance with section 382(3) of
the Civil Procedure Act and section 10(3) of the 1999 Amendments to
the Civil Procedure Act, that the appeal on points of law is
admissible.
For these reasons the first and the second-instance
decisions had to be quashed pursuant to section 394(1) taken in
conjunction with section 400 of the Civil Procedure Act, and the case
remitted to the first-instance court for fresh proceedings so that it
can proceed with the appeal on points of law in accordance with
section 390 of the Civil Procedure Act.”
- In
the resumed proceedings, the VaraZdin Municipal Court, in discharging
its duties under section 390(3) of the Civil Procedure Act, forwarded
the case file to the Supreme Court for a decision on the applicant’s
appeal on points of law of 6 March 2003.
- On
23 February 2005 the Supreme Court, sitting as a panel composed of
judges P.M., I.M., V.P.R., G.G. and B.H., declared the applicant’s
appeal on points of law of 6 March 2003 inadmissible ratione
valoris, finding that the value of the subject matter of the
dispute was below the statutory threshold of HRK 100,000. This time
the court held that the relevant value of the subject matter of the
dispute was the one indicated by the plaintiff in the statement of
claim and that, in the present case, that value was YUD 1,000,000,
which, when converted into kunas, amounted to HRK 0.10. The
relevant part of the Supreme Court’s decision reads as follows:
“The plaintiff’s appeal on points of law
against the judgment of the VaraZdin County Court, no. GZ-1046/02 of
26 November 2002 is hereby declared inadmissible.
Reasons
...
The appeal on points of law is inadmissible.
Pursuant to section 382(2) of the Civil Procedure Act,
an appeal on points of law is inadmissible in pecuniary disputes
where ... the value of the subject matter of the dispute of the
contested part of the final judgment does not exceed 100,000
[Croatian] kunas.
Pursuant to section 40(2) of the Civil Procedure Act, in
a case where an action does not concern a sum of money, the relevant
value shall be the value of the subject matter of the dispute
indicated by the plaintiff in the statement of claim.
Pursuant to section 10(3) of the 1999 Amendments to the
Civil Procedure Act, this provision applies to all proceedings in
which a final decision of a second-instance court was rendered after
the entry into force of the 1999 Amendments, [that is, after]
6 November 1999.
The case at issue concerns a pecuniary dispute where the
claim is directed at the handover of (immovable) property, issuance
of a land register document, so that, in accordance with the cited
legislation, the relevant value of the subject matter of the dispute
is the one indicated by the plaintiff in the statement of claim.
The value of the subject matter of the dispute indicated
in the statement of claim is 1,000,000 [former Yugoslav] dinars, [the
amount of] which after the denomination equals 0,1 [Croatian] kunas.
Given that the second-instance judgment of the VaraZdin
County Court, no. GZ-1046/02 was rendered on 26 November 2002, it
follows that the appeal on points of law is inadmissible.”
- On
3 October 2005 the applicant lodged a constitutional complaint
against that Supreme Court decision of 23 February 2005, alleging a
violation of his constitutional right to a fair hearing by pointing
out the discrepancy between that decision and the one of 25 February
2004. On 8 February 2007 the Constitutional Court (Ustavni
sud Republike Hrvatske) dismissed the applicant’s complaint
and, on 15 March 2007, served its decision on his
representative. It took note of the applicant’s argument
concerning conflicting decisions of the Supreme Court, but held that
the contested decision was in line with the relevant provisions of
the Civil Procedure Act and that the proceedings before the ordinary
courts had not been contrary to his constitutional right to a fair
hearing.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Constitutional Court Act
- The
relevant part of the 1999 Constitutional Act on the Constitutional
Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu
Republike Hrvatske, Official Gazette of the Republic of Croatia
no. 99/1999 of 29 September 1999 – “the
Constitutional Court Act”), as amended by the 2002 Amendments
(Ustavni zakon o izmjenama i dopunama Ustavnog zakona o Ustavnom
sudu Republike Hrvatske, Official Gazette of the Republic of
Croatia no. 29/2002 of 22 March 2002), which entered into force on 15
March 2002, reads as follows:
Section 62
“1. Anyone may lodge a constitutional complaint
with the Constitutional Court if he or she deems that the decision of
a state authority, local or regional self-government, or a legal
person invested with public authority, on his or her rights or
obligations, or as regards suspicion or accusation of a criminal
offence, has violated his or her human rights or fundamental
freedoms, or right to local or regional self-government, guaranteed
by the Constitution (“constitutional right”)...
2. If another legal remedy is available in respect of
the violation of the constitutional rights [complained of], the
constitutional complaint may be lodged only after this remedy has
been exhausted.
3. In matters in which an administrative action or, in
civil and non-contentious proceedings, an appeal on points of law
[revizija] are available, remedies shall be considered
exhausted only after the decision on these legal remedies has been
given.”
Section 63
“(1) The Constitutional Court shall examine a
constitutional complaint whether or not all legal remedies have been
exhausted if the competent court fails to decide a claim concerning
the individual’s rights and obligations or a criminal charge
against him or her within a reasonable time ...
(2) If a constitutional complaint ... under paragraph 1
of this section is upheld, the Constitutional Court shall set a
time-limit within which the competent court must decide the case on
the merits...
(3) In a decision issued under paragraph 2 of this
section, the Constitutional Court shall assess appropriate
compensation for the applicant for the violation of his or her
constitutional rights ... The compensation shall be paid out of the
State budget within three months from the date a request for payment
is lodged.”
B. The Civil Procedure Act
1. Relevant provisions
- The
relevant part of the Civil Procedure Act (Zakon o parničnom
postupku, Official Gazette of the Socialist Federal Republic of
Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980, 69/1982,
58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991, and Official
Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 58/1993,
112/1999, 88/2001, 117/2003, 88/2005, 2/2007, 84/2008 and 123/2008),
as in force at the material time, provided as follows:
C h a p t e r t w o
JURISDICTION
AND COMPOSITION OF THE COURT
- S
u b j e c t m a t t e r j u r i s d i c t i o n
Determining the value of the subject matter of the
dispute
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 indicated by the plaintiff in the statement of claim (u
tuZbi).
(3) If, in the case referred to in paragraph 2 of this
section, it is obvious that the value of the subject matter of the
dispute indicated by the plaintiff is too high or too low, so that
the question of ... the right to lodge an appeal on points of law
arises, the court shall, at the latest at the preparatory hearing or,
if no preparatory hearing was held, at the main hearing before the
examination of the merits, quickly and in an appropriate manner
verify the accuracy of the indicated value.
C h a p t e r
f o u r t e e n
ACTION
Content of an action
Section 186 (2)
“When the jurisdiction of the court or its
composition, or the right to lodge an appeal on points of law,
depends on the value of the subject matter of the dispute, and the
object of an action is not the sum of money, the plaintiff shall in
the statement of claim (u tuZbi) indicate the value of the
subject matter of the dispute.”
C h a p t e r
t w e n t y t h r e e
JUDGMENT
Res judicata
Section 334
“(1) The court shall be bound by its judgment
(presuda) as soon as it has been pronounced, and if the
judgment has not been pronounced, as soon as it has been dispatched.
(2) A judgment shall not take effect on the parties
until the day it is served on them.”
C h a p t e r
t w e n t y f o u r
[PROCEDURAL] DECISION
Section 343 (3) and (4)
“(3) The court shall be bound by its [procedural]
decisions (rješenja) unless they concern the conduct of
the proceedings or this Act provides otherwise.
(4) When a [procedural] decision is not going to be
served in writing, it shall take effect on the parties as soon as it
has been pronounced.”
Section 347
“Provisions of .... section 334 paragraph 2 ... of
this Act shall also apply, mutatis mutandis, to [procedural]
decisions (rješenja).
C h a p t e r
t w e n t y s i x
EXTRAORDINARY REMEDIES
- Appeal
on points of law
Section
382(1) provides that the parties may lodge an appeal on points of law
(revizija protiv presude) against the second-instance judgment
if the value of the subject matter of the dispute of the contested
part of the judgment exceeds a certain amount of money (statutory
threshold). The statutory threshold in civil (that is,
non-commercial) cases was changed as follows:
|
Currency
|
Value
|
Period
|
|
YUD
|
5,000
|
1 July 1977 – 26 November 1982
|
|
YUD
|
50,000
|
27 November 1982 – 21 November 1987
|
|
YUD
|
800,000
|
22 November 1987 – 5 October 1989
|
|
YUD
|
8,000,000
|
6 October 1989 – 31 December 1989
|
|
YUD
|
800
|
1 January 1990 – 10 April 1990
|
|
YUD
|
8,000
|
11 April 1990 – 22 December 1991
|
|
HRD
|
8,000
|
23 December 1991 – 7 January 1993
|
|
HRD
|
3,000,000
|
8 January 1993 – 12 May 1994
|
|
HRK
|
3,000
|
13 May 1994 – 5 November 1999
|
|
HRK
|
100,000
|
after 6 November 1999
|
Section 388
“An appeal on points of law (revizija protiv
presude) shall be lodged with the court which gave the
first-instance judgment ....”
Section 389
“A belated, incomplete or [otherwise] inadmissible
appeal on points of law (revizija protiv presude), shall be
declared inadmissible by a decision of a single judge or the
president of a panel, without holding a hearing.”
Section 390(1) and (3)
“(1) A single judge or the president of a panel of
the first-instance court shall forward a copy of a timely, complete
and admissible appeal on points of law to the opposing party, who
may, within fifteen days of the service of the appeal on points of
law, submit a reply to the appeal on points of law to the same court.
(3) After having received the reply to the appeal on
points of law or after the expiry of the time-limit for replying to
the appeal on points of law, a single judge or the president of a
panel of the first-instance court shall forward directly to [the
Supreme Court] the appeal on points of law and the reply to the
appeal on points of law, if submitted, together with the case file.”
Section 400 (3)
“A [procedural] appeal on points of law (revizija
protiv rješenja) shall always lie against the decision of
the second-instance court upholding the decision of the
first-instance court declaring the appeal on points of law
inadmissible (revizija protiv presude).”
5.a. Reopening of proceedings following a
final judgment of the European Court of Human Rights in Strasbourg
finding a violation of a fundamental human right or freedom
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.”
2. The case-law of the Supreme Court
- In
its case no. Rev 885-05-2 of 9 November 2005 the Supreme Court held
that the plaintiff was not authorised to subsequently change the
value of the subject matter of the dispute indicated in his statement
of claim unless he also amended the action (by increasing,
supplementing or replacing the initial claim).
3. The doctrine
- The
Croatian legal doctrine (see S. Triva and M. Dika, Građansko
parnično procesno pravo
(The Law of Civil Procedure), Zagreb, 2004, p. 356) describes
the so-called internal binding effect of court decisions rendered in
civil proceedings in the following manner:
“The court is in principle bound by its decisions
rendered in the course of the proceedings. The court cannot itself
alter its own binding decision because this can be done only by the
court competent to decide on legal remedies against that decision.
...
The court is always bound by decisions rendered in the
form of a judgment. If a judgment is to be pronounced, the court is
bound by it as soon as it has been pronounced, and if the judgment is
not to be pronounced, as soon as it has been dispatched.
The court is bound by decisions rendered in the form of
a [procedural] decision unless they concern the conduct of the
proceedings or the law provides otherwise.
The court may re-examine and decide again issues decided
by a non-binding [procedural] decision whenever the need to do so
arises.”
C. The 1999 Amendments to the Civil Procedure Act
- On
6 November 1999 the Amendments to the Civil Procedure Act (Zakon o
izmjenama i dopunama Zakona o parničnom postupku, Official
Gazette of the Republic of Croatia no. 112/1999 of 29 October 1999)
entered into force. They raised the statutory threshold for lodging
an appeal on points of law (revizija) to the Supreme Court in
civil matters from HRK 3,000 to HRK 100,000. Accordingly, from
then on, for such an appeal to be admissible ratione valoris
in civil matters, the value of the subject matter of the dispute had
to exceed the latter amount. Section 10 provided that the Amendments
were also immediately applicable to pending proceedings except to
those cases in which an appeal on points of law had already been
lodged.
D. Legislation relating to denominations of the
domestic currency
- The
Act on the Change of the Value of the Dinar (Zakon o promjeni
vrijednosti dinara, Official Gazette of the Socialist Federal
Republic of Yugoslavia no. 83/89), which entered into force on 1
January 1990, established the new value of the Yugoslav dinar (YUD)
so that one new dinar corresponded to 10,000 old dinars.
- By
the Decision on the Introduction of the Croatian Dinar as the
Currency on the Territory of the Republic of Croatia (Odluka o
uvođenju hrvatskog dinara kao sredstva plaćanja na
teritoriju Republike Hrvatske, Official Gazette of the Republic
of Croatia no. 71/1991), which entered into force on 23 December
1991, the Republic of Croatia introduced its own currency, the
Croatian dinar (HRD). The Yugoslav dinar (YUD) was replaced by the
Croatian dinar at an exchange rate of YUD 1 to HRD 1.
- On
13 May 1994 the Decision on the Termination of the Validity of the
Decision on the Introduction of the Croatian Dinar as the Currency on
the Territory of the Republic of Croatia and on the Manner and Time
of Calculation of Sums Expressed in Croatian Dinars into Kunas and
Lipas (Odluka o prestanku vaZenja Odluke o uvođenju hrvatskog
dinara kao sredstva plaćanja na teritoriju Republike Hrvatske,
te o načinu i vremenu preračunavanja iznosa izraZenih u
hrvatskim dinarima u kune i lipe, Official Gazette of the
Republic of Croatia no. 37/1994) entered into force, introducing the
Croatian kuna (HRK) as the currency of the Republic of Croatia. It
provided that the Croatian dinar should be replaced by the Croatian
kuna at an exchange rate of 1,000 dinars to one kuna.
E. The Constitutional Court’s jurisprudence
- In
decision no. U-III-2646/2007 of 18 June 2008 (Official Gazette of the
Republic of Croatia no. 104/2008 of 12 September 2008), in a case
where the plaintiff, who had brought his action in 1978, had sought
payment of 48,600 German marks, the Constitutional Court found
violations of the complainant’s constitutional rights to
equality before the courts and to a fair hearing and quashed the
Supreme Court’s decision declaring the appeal on points of law
inadmissible ratione valoris. The Constitutional Court held,
inter alia:
“When the civil proceedings for payment of a
relatively high amount of foreign currency have lasted thirty years,
and the value of the subject matter of the dispute in [those
proceedings] (which had at the time the action was brought greatly
exceeded the amount prescribed for admissibility of an appeal on
points of law) is being determined according to the nominal amount of
the domestic currency (which had become worthless due to
denomination) and not according to the real value of the amount
sought, then such a long lapse of time always benefits one party. The
outcome in its favour is due solely to the protracted nature of the
proceedings, which upsets the other party’s equal status before
the law.”
- In
decision no. U-III-4361/2008 of 10 June 2009 (Official Gazette of the
Republic of Croatia no. 87/2009 of 21 July 2009) in a similar case,
the Constitutional Court confirmed the above jurisprudence.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE BREACH OF THE PRINCIPLE OF LEGAL
CERTAINTY
- The
applicant complained that the Supreme Court had first, on 25 February
2004, declared his appeal on points of law admissible and then, on 23
February 2005, declared it inadmissible, without giving any reasons
for departing from its previous decision. He relied on Article 6 §
1 of the Convention, which reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a ... hearing ... by [a] ...
tribunal ...”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 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 arguments of the parties
(a) The Government
- The
Government first submitted that, according to the Court’s
established case-law, neither Article 6 nor any other provision of
the Convention or its Protocols guaranteed a right to have a
civil case heard by three judicial instances. In other words, no
provision of the Convention required the High Contracting Parties to
grant persons within their jurisdiction an appeal to the Supreme
Court on important legal questions. If a High Contracting Party made
provision for such an appeal, it was entitled to prescribe the
conditions under which it may be brought.
- Thus,
the Government argued that, in a situation such as in the present
case – where two judicial instances had examined the merits of
the applicant’s action – the impossibility of lodging an
appeal on points of law, in cases where the legislator had clearly
prescribed the requirements for its admissibility, could not be
considered to have been a violation of the right of access to a court
or the right to a fair hearing.
- The
Government submitted that in the decision of the Supreme Court of 25
February 2004 the Supreme Court had not been authorised to decide on
the admissibility of the applicant’s appeal on points of law
and had thus merely given its opinion regarding the determination of
the value of the subject matter of the dispute. When, later, the case
had been submitted to it, the Supreme Court had been allowed to give
a different opinion regarding the value criterion. This was the case
because the system of precedents did not exist in Croatia and the
courts were not bound by their previous decisions or reasons given.
- In
the alternative, the Government argued that the decision declaring
the applicant’s appeal on points of law inadmissible had been
based on law, in particular, the relevant provisions of the Civil
Procedure Act and the 1999 Amendments to the Civil Procedure Act.
This had been confirmed by the Constitutional Court, which in its
decision of 8 February 2007 had found that the proceedings
before the ordinary courts had been conducted in a manner compatible
with the applicant’s constitutional right to a fair hearing.
- In
particular, the Government noted that, by its submission of 1 March
2001, the applicant had attempted to increase the value of the
subject matter of the dispute. However, because the costs of
proceeding were calculated in relation to that value, to allow the
plaintiff (in this case the applicant) to increase it unilaterally in
any phase of the proceedings would run contrary to the interests of
the respondent who could be forced to pay significantly higher costs.
It was for that reason that the legislator prescribed that only the
court was authorised to verify the value of the subject matter of the
dispute if the plaintiff had set it too high or too low. However,
pursuant to section 40(3) of the Civil Procedure Act, the court was
authorised to do so only at the preparatory hearing and, if one was
not held, at the main hearing before the examination of the merits.
The Government stressed that the court was not authorised to examine
changes to the value of the subject matter of the dispute which occur
on the basis of the application of laws and regulations in force, in
particular on the basis of the legislation relating to denominations
of the domestic currency.
- According
to the existing case law of the Supreme Court, the only situation in
which a plaintiff would be allowed to change the value of the subject
matter of the dispute during the proceedings would be a situation
where the action had been amended, in which case the plaintiff would
be authorised, at the same time, to indicate the new value of the
subject matter of the dispute. However, the applicant had failed to
do so because he had first indicated the new value of the subject
matter of the dispute in his submission of 1 March 2001 and only
subsequently, on 25 September 2001, amended his action by
supplementing it with a new claim. Therefore, the first-instance
court had taken as relevant the original value of the subject matter
of the dispute indicated in the applicant’s action of 30 March
1988 and calculated the costs of proceedings according to that value.
- In
the light of the foregoing, the Government considered that Croatian
legislation had provided clear and unambiguous rules for cases where
the value of the subject matter in the dispute had dropped owing to a
change and devaluation of the domestic currency, and had regulated
the effect of such changes on the right to lodge an appeal on points
of law. In their view, there had therefore been no violation of
Article 6 § 1 of the Convention.
(b) The applicant
- The
applicant reiterated that the Supreme Court had first, on 25 February
2004, declared his appeal on points of law admissible and then,
without any valid explanation, on 23 February 2005, declared it
inadmissible.
- The
applicant further argued that the Supreme Court’s finding in
its decision of 23 February 2005 that the value of the subject matter
of the dispute had amounted to HRK 0.10 was absurd.
- The
applicant also submitted that, at the time that he had brought his
action, he had the right to lodge an appeal on points of law, a right
which he could not lose until the end of the proceedings. He argued
that the decision of the Supreme Court of 23 February 2005 and
the decision of the Constitutional Court of 15 March 2007 were
contrary to the 1999 Amendments to the Civil Procedure Act which, in
his view, had not had retroactive effects.
2. The Court’s assessment
- The
Court reiterates that Article 6 of the Convention does not compel the
Contracting States to set up courts of appeal or of cassation.
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, for example,
Brualla Gómez de la Torre v. Spain, 19 December
1997, § 37, Reports of Judgments and Decisions
1997 VIII).
- Turning
to the present case, the Court first notes that, contrary to the
applicant’s view, the 1999 Amendments to the Civil Procedure
Act, which raised the statutory threshold for lodging an appeal on
points of law to HRK 100,000, were applicable to his case (see
paragraph 19 above). They followed a generally recognised principle
that procedural rules apply immediately to the pending proceedings
(see, mutatis mutandis, Brualla Gómez de la Torre v.
Spain, cited above, §§ 35-36).
- The
Court further notes that, after the first and second-instance courts
had ruled against him, the applicant lodged an appeal on points of
law (revizija protiv presude) with the Supreme Court on 6
March 2003. While the lower courts declared that appeal on points of
law inadmissible ratione valoris, on 25 February 2004 the
Supreme Court quashed their decisions, clearly stating in a
well-reasoned decision that the applicant’s appeal on points of
law was admissible (see paragraph 11 above).
- However,
following that decision, once the first-instance court had forwarded
to the Supreme Court the case file and the applicant’s appeal
on points of law of 6 March 2003, that court, on 23 February
2005, declared it inadmissible ratione valoris without
providing any explanation as to why it had departed from its previous
decision of 25 February 2004. Furthermore, the same four judges
(P.M., I.M., V.P.R. and G.G.) were sitting on both the five-member
panels that gave the two contrary decisions (see paragraphs 11
and 13 above). The applicant’s subsequent constitutional
complaint was to no avail (see paragraph 14 above).
- In the absence of any reference to the previous
decision of 25 February 2004 on the same issue in the same case
or a detailed reasoning by either the Supreme Court or the
Constitutional Court, the Court cannot see why the two decisions were
different. It is therefore impossible to know whether the Supreme
Court in its decision of 23 February 2005 simply neglected its
previous decision of 25 February 2004 or whether it consciously
departed from it and, if so, for what reasons.
- The
Court takes note of the Government’s argument that the Supreme
Court’s decision of 23 February 2005 was in line with that
court’s case-law, the argument of which is akin to the
Constitutional Court’s reasoning that the contested decision of
the Supreme Court was “in line with the relevant provisions
of the Civil Procedure Act” (see paragraph 14 above),
implying that the decision of 25 February 2004 was not. However,
the Court notes that, according to the domestic law, in particular
section 343(3) of the Civil Procedure Act (see paragraphs 16 and
18 above), the Supreme Court was bound by its decision of 25 February
2004 as it did not concern the conduct of the proceedings. This
means, inter alia, that this decision was binding for the same
court in the subsequent course of the same proceedings.
- Irrespective of these considerations, the Court
reiterates that one of the fundamental aspects of the rule of law is
the principle of legal certainty, a principle which is implied in the
Convention (see Beian v. Romania (no. 1),
no. 30658/05, § 39, ECHR 2007 XIII (extracts)).
Conflicting decisions in similar cases stemming from the same court
which, in addition, is the court of last resort in the matter, may,
in the absence of a mechanism which ensures consistency, breach that
principle and thereby undermine public confidence in the judiciary
(see, for example, Beian,
cited above, §§ 36-39;
Tudor Tudor v. Romania, no. 21911/03, § 29, 24 March
2009; and Iordan Iordanov and Others v. Bulgaria, no.
23530/02, §§ 47-53, 2 July 2009), such
confidence being one of the essential components of a State based on
the rule of law. The Contracting States have the obligation to
organise their legal system so as to avoid the adoption of discordant
judgments (see Vrioni and Others v. Albania, no. 2141/03, §
58, 24 March 2009). The Court considers that this reasoning
applies a fortiori in the present instance where the same
court reached conflicting decisions in the same case. It also notes
that it has previously found a violation of Article 6 § 1
of the Convention in similar circumstances (see Kostadin Mihaylov
v. Bulgaria, no. 17868/07, 27 March 2008).
- In
the light of the foregoing, the Court considers that the existence of
the two contradictory decisions of the Supreme Court in the same case
is incompatible with the principle of legal certainty. The role of a
higher court in a Contracting Party is precisely to resolve conflicts
of jurisprudence, avoid divergences and ensure uniform application of
law. Therefore, by adopting a new decision on the same issue in the
same proceedings and thereby effectively overruling its previous
decision, without any reference to it or reasoning to the contrary,
the Supreme Court in the instant case itself became the source of
uncertainty (see, mutatis mutandis, Beian v. Romania (no.
1), cited above,
§§ 37-39). In this way it infringed the principle of legal
certainty, inherent in Article 6 § 1 of the Convention.
- There
has accordingly been a violation of that Article.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE LACK OF INDEPENDENCE AND IMPARTIALITY
- The
applicant further complained under Article 6 § 1 of the
Convention that the Supreme Court had been neither independent nor
impartial, as the change of its legal view described above could only
be explained by outside pressure.
- The
Court considers that the mere fact that the Supreme Court gave
contrary decisions in the same case does not mean, in the absence of
other evidence, that it did so because of outside pressure. As the
applicant did not substantiate this complaint further and because
there is no other evidence to suggest that the domestic courts lacked
independence or impartiality, the Court finds that this complaint is
inadmissible under Article 35 § 3 as manifestly
ill-founded and must be rejected pursuant to Article 35 § 4
of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE EXCESSIVE LENGTH OF PROCEEDINGS
- Lastly,
the applicant complained that the length of the above-mentioned civil
proceedings had been incompatible with the “reasonable time”
requirement, laid down in Article 6 § 1 of the
Convention.
- The
Court refers to its decision in the Slaviček case, where
it held that since 15 March 2002 (when the 2002 Amendments to
the Constitutional Court Act entered into force) a constitutional
complaint under section 63 of the Constitutional Court Act has
represented an effective domestic remedy in respect of the length of
court proceedings in Croatia (see Slaviček v. Croatia
(dec.), no. 20862/02, ECHR 2002-VII).
- It
follows that, in the period between 15 March 2002 and 23 February
2005, that is, while the impugned proceedings were pending before the
ordinary courts, the applicant could have lodged a constitutional
complaint about their length. However, he did not do so.
- The
length of the proceedings in their part before the Constitutional
Court following the applicant’s regular constitutional
complaint of 3 October 2005, amounting to one year and five
months, cannot in itself be considered unreasonable.
- It
follows that this complaint is inadmissible under Article 35 §§ 1
and 3 for non-exhaustion of domestic remedies and as manifestly
ill-founded, respectively, and that it must be rejected pursuant to
Article 35 § 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
applicant claimed 100,000 euros (EUR) in respect of pecuniary damage.
- The
Government contested that claim.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
- As
regards the non-pecuniary damage, the Court first notes that the
applicant’s representative did not submit any claim in this
respect. The Court further reiterates that the most appropriate form
of redress in cases where it finds a 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, and
Yanakiev v. Bulgaria, no. 40476/98, §
90, 10 August 2006). In this connection the Court notes that the
applicant can now file a petition under section 428a of the Civil
Procedure Act (see paragraph 16 above) for the reopening of the
above-mentioned civil proceedings in respect of which the Court has
found a violation of Article 6 § 1 of the
Convention. Having regard to the foregoing, the Court considers that
there is no call to award the applicant any sum on account of
non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed HRK 32,254.80 for the costs and expenses
incurred before the domestic courts and HRK 5,000 for those incurred
before the Court.
- The
Government contested these claims.
- 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 were
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 673 EUR for costs and
expenses in the domestic proceedings and EUR 683 for the
proceedings before the Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the unfairness
of the proceedings on account of the alleged breach of the principle
of legal certainty admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the breach of the
principle of legal certainty;
- Holds
(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, EUR 1,356 (one
thousand three hundred and fifty six euros), plus any tax that may be
chargeable to the applicant, in respect of costs and expenses, to be
converted into Croatian kunas at the rate applicable at the date of
settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 1 July 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judges
Spielmann and Malinverni is annexed to this judgment.
C.L.R.
S.N.
JOINT CONCURRING OPINION OF JUDGES SPIELMANN AND
MALINVERNI
In
paragraph 58 the judgment states “that the most appropriate
form of redress in cases where it finds a 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, and
Yanakiev v. Bulgaria, no. 40476/98, § 90, 10
August 2006). In this connection the Court notes that the applicant
can now file a petition under section 428a of the Civil Procedure Act
(see paragraph 16 above) for the reopening of the
above-mentioned civil proceedings in respect of which the Court has
found a violation of Article 6 § 1 of the
Convention.”
For
reasons we have explained on many occasions,
we would very much have liked this principle, on account of its
importance, to have been reflected in the operative part of the
judgment.
That
requirement appears to us to be all the more necessary in the present
case, in view of the finding that, “[h]aving regard to the
foregoing, the Court considers that there is no call to award the
applicant any sum on account of non-pecuniary damage” (see
paragraph 58).
