Last Updated on August 23, 2019 by LawEuro
Information Note on the Court’s case-law 217
April 2018
Zubac v. Croatia [GC] – 40160/12
Judgment 5.4.2018 [GC]
Article 6
Civil proceedings
Article 6-1
Access to court
Alleged excessively formalistic interpretation of procedural rules (ratione valoris admissibility threshold): no violation
Facts – Civil cases are brought before the Croatian Supreme Court by means of an appeal on points of law, which may be either: (i) an “ordinary” appeal on points of law, a full individual right where the disputed part of the impugned decision represents a value exceeding a specific threshold, which stood at 100,000 Croatian kunas (HRK) at the material time; or (ii) failing that, an “extraordinary” appeal on points of law seeking to ensure a uniform interpretation of the law. In either case the appeal is confined to points of law.
The applicant brought a civil action, the subject matter of which was evaluated by her first lawyer at HRK 10,000 (about EUR 1,400). After the applicant had changed lawyers, the parties exchanged pleas at an initial hearing on the merits. At a subsequent hearing the lawyer re-evaluated the subject matter at HRK 105,000. However, the “civil claim” mentioned in the action could only be amended under a special court decision which was no longer possible at that stage. Nevertheless, the trial courts used the new figure in calculating the court fees. The applicant’s appeal on points of law was dismissed by the Supreme Court, which declared it inadmissible ratione valoris on the grounds that the subject matter indicated in the first-instance claim document had not been validly amended.
In the Convention proceedings, the applicant alleged that in breach of Article 6 § 1 of the Convention she had been prevented from having access to the Supreme Court. In a judgment of 6 September 2016 (see Information Note 205) a Chamber of the Court found a violation of that provision by four votes to three.
On 6 March 2017 the case was referred to the Grand Chamber at the Government’s request.
Law – Article 6 § 1
(a) The impugned restriction – The restriction in issue was not the result of inflexible procedural rules: the relevant law and practice allowed for the possibility of amending the subject matter of the dispute; the applicant had also been at liberty to lodge an “extraordinary” appeal on points of law, but had omitted to do so.
(b) Legitimacy of the aim pursued – The Supreme Court’s main function was to ensure the uniform application of the law and the equality of all before the courts. Therefore, setting a specific ratione valoris threshold was legitimately geared to guaranteeing that the Supreme Court was called upon to deal only with cases of a level of importance consonant with its role. Moreover, review by that court of irregularities committed by the lower courts in setting the value of the dispute was also a legitimate concern, regarding the rule of law and the proper administration of justice.
(c) Proportionality of the obstacle – In this case, the respondent State had to be granted a wide margin of appreciation: (i) the applicant’s case had been examined by two levels of jurisdiction; (ii) the case had not raised any unfairness issues; and (iii) the Supreme Court’s role had been confined to reviewing the proper implementation of domestic law by the lower courts.
For the reasons set out below, that margin of appreciation had not been overstepped.
Firstly, the conditions for allowing an appeal on points of law were foreseeable. The Supreme Court’s case-law was consistent and clear: whether the error in question was attributable to the lower courts or to one of the parties, when the value of the subject matter of the dispute was unlawfully changed at an advanced stage in proceedings, an appeal on points of law was not permitted. Furthermore, the law required a specific court decision in order to change the value of the subject matter of the dispute.
In the present case, at the time when such a decision could validly have been requested and also when the applicant had so requested, she had been represented by a qualified lawyer practising in Croatia who was supposed to be conversant with Croatian law and jurisprudence.
Accordingly, even though the lower courts had subsequently seemed to accept the increased value of the subject matter (at least for the purposes of calculating court fees), the applicant and her lawyer had clearly been in a position to grasp that the late change to the value of the subject matter of the dispute would preclude access to the Supreme Court.
Secondly, the errors which had impeded the applicant’s access to the Supreme Court were primarily and objectively attributable to her, as represented by a lawyer:
– the fact that the applicant’s first lawyer practised in Montenegro rather than in Croatia was exclusively a matter for her free choice of legal representative; she could clearly have instructed a Croatian lawyer, which she had in fact subsequently done;
– the alleged disproportion between the value indicated in the claim document and the real value of the property in issue was irrelevant; the applicant was entitled to set the value of the subject matter of the dispute at an amount which did not necessarily correspond to the commercial value of the property;
– it would have been possible to modify the value initially indicated up until the time of the presentation of the defence’s substantive arguments, but the applicant had failed to do so, despite already being represented by a Croatian lawyer;
– the applicant’s change of lawyer had not prevented the new lawyer from personally requesting the change in the value of the subject matter of the dispute earlier on, at the first hearing on the merits.
Based on full knowledge of the relevant facts, the Supreme Court’s interpretation of the relevant domestic law would not seem to have been arbitrary or manifestly unreasonable.
The applicant’s procedural error could not be excused by the subsequent error committed by the courts, as that would run counter to the principle of the rule of law and the requirement of diligent and proper conduct of the proceedings and the careful implementation of the relevant procedural rules.
The applicant could not have had any legitimate expectation arising from the increase in the court fees which she had paid, merely as a consequence of her own conduct, and for whose reimbursement she could have applied.
Thirdly, it could not be affirmed that when the Supreme Court declared the applicant’s appeal on points of law inadmissible it had been applying excessive formalism. In a situation where domestic law had allowed it to filter cases coming before it, to hold that that court should be bound by errors committed by the lower courts could severely impede its work and make it impossible for it to fulfil its specific role.
In the absence of any reason to cast doubt on the procedural framework established by law for indicating the value of the subject matter of the dispute, it could not be said that applying the mandatory provisions in question had amounted to excessive formalism. On the contrary, it had enhanced legal certainty and the proper administration of justice: the Supreme Court had simply restored the rule of law after the errors committed by the applicant and by the two lower courts on an issue affecting its jurisdiction. Since the rule of law was a fundamental principle of democracy and of the Convention, there could be no expectation, derived from the Convention or otherwise, that the Supreme Court would ignore or overlook obvious procedural irregularities.
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In sum, there had been no disproportionate hindrance impairing the very essence of the applicant’s right of access to a court or transgressing the national margin of appreciation.
Conclusion: no violation (unanimously).
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