FOURTH SECTION
\nDECISION<\/p>\n
Application no. 39484\/14
\nMirjan FLEGO
\nagainst Slovenia<\/p>\n
The European Court of Human Rights (Fourth Section), sitting on 27\u00a0November 2018 as a Committee composed of:<\/p>\n
Georges Ravarani, President,
\nMarko Bo\u0161njak,
\nP\u00e9ter Paczolay, judges,
\nand Andrea Tamietti, Deputy Section Registrar,<\/p>\n
Having regard to the above application lodged on 22 May 2014,<\/p>\n
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
THE FACTS<\/strong><\/p>\n 1.\u00a0\u00a0The applicant, Mr MirjanFlego, is a Slovenian national who was born in 1956 and lives in Lucija. He was represented before the Court by Mr\u00a0E.\u00a0Doki\u010d, a lawyer practising in Piran.<\/p>\n 2.\u00a0\u00a0The Slovenian Government (\u201cthe Government\u201d) were represented by their Agent, Ms T. Miheli\u010d\u017ditko, State Attorney.<\/p>\n A.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n 3.\u00a0\u00a0The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n 4.\u00a0\u00a0On 24 June 2009 the applicant and his mother commenced proceedings to establish their property rights over a parcel of land, claiming one half of the land each. In the legal action they indicated a value for the subject matter of the dispute of 15,000\u00a0euros (EUR).<\/p>\n 5.\u00a0\u00a0On 25 January 2013 the Koper District Court dismissed their claim. On 19 November 2013 the Koper Higher Court upheld the first-instance judgment. Neither of the two courts noted the value of the subject matter of the dispute in their judgments but referred to the subject of the dispute in descriptive terms (\u201cestablishment of property rights\u201d).<\/p>\n 6.\u00a0\u00a0On 17 December 2013 the applicant and his mother, who were represented by a practising lawyer, lodged an application for leave to appeal on points of law (predlogzadopustitevrevizije) against the Koper Higher Court judgment of 19 November 2013. Enclosed with the application were the judgments of the first- and second-instance courts.<\/p>\n 7.\u00a0\u00a0According to an official note of 20 December 2013, a judicial clerk of the Supreme Court called the administrator of the Koper District Court and learnt that the value of the subject matter of the dispute before the first-instance court had been specified as EUR 15,000. On 20\u00a0December 2013 the Supreme Court ordered the applicant and his mother to pay the court fees for their application based on the indicated claim value of EUR\u00a015,000. The applicant and his mother paid the fees.<\/p>\n 8.\u00a0\u00a0On 13 February 2014 the Supreme Court rejected the application as incomplete. It held that it had to examine compliance with formal requirements before considering the merits of the application. In relation to this, it reiterated that the party submitting the application bore the burden of presenting the facts and of proof of compliance with the formal requirements of the procedure. The Supreme Court pointed out that it was not obliged to look for the missing information of its own accord, even to correctly determine and justify the amount in dispute before that court. The latter was, according to the Supreme Court, important for the purposes of examining the admissibility of the application vis-\u00e0-vis the value threshold, as leave to appeal on points of law could only be granted if the amount in dispute exceeded EUR 2,000 and did not exceed EUR 40,000 (section\u00a0367\u00a0(2) and (4) of the Civil Procedure Act, see paragraph 11 below). Referring to its principled opinion of 1993 (see paragraph 13 below), the Supreme Court further held that no party had the right to appeal on points of law if the value of the subject matter of the dispute had not been specified. The court observed that neither the application for leave to appeal nor the supporting documents submitted by the applicant, namely the first- and second-instance judgments, showed that the applicant had specified the amount in dispute at any point during the proceedings. Consequently, an appeal on points of law would be inadmissible, meaning that the court could not grant the parties the leave sought.<\/p>\n 9.\u00a0\u00a0On 10 April 2014 the Constitutional Court refused to accept a constitutional complaint lodged by the applicant for consideration, finding that it did not concern an important constitutional question or entail a violation of human rights with serious consequences for the applicant.<\/p>\n B.\u00a0\u00a0Relevant domestic law and practice<\/strong><\/p>\n 1.\u00a0\u00a0The Civil Procedure Act<\/em><\/p>\n 10.\u00a0\u00a0The Supreme Court has competence to decide cases concerning, inter alia, extraordinary legal remedies, and to perform other functions provided for by law, such as ensuring uniform case-law.<\/p>\n 11.\u00a0\u00a0The relevant provisions of the Civil Procedure Act (Official Gazette no. 73\/07, with further relevant amendments), as in force at the relevant time, stated:<\/p>\n Section 367<\/p>\n \u201c…<\/p>\n In pecuniary disputes an appeal on points of law shall be admissible if the value of the subject matter of the part of the final judgment which is being challenged exceeds EUR 40,000 (an admissible appeal on points of law).<\/p>\n If an appeal on points of law under the preceding paragraph is not admissible, it shall only be admissible in the event that leave to appeal is granted by the court pursuant to section 367a of this Act (granted leave to appeal on points of law).<\/p>\n If the law stipulates that no appeal on points of law shall be permitted or if the value of the subject matter of the part of the final judgment which is being challenged does not exceed EUR 2,000, the court shall not grant leave to appeal on points of law …\u201d<\/p>\n Section 367a<\/p>\n \u201cThe Supreme Court shall grant leave to appeal on points of law when its decision is expected to tackle a legal question that has importance in terms of legal certainty, the uniform application of the law or the development of the law through case-law…<\/p>\n The Supreme Court decides whether to grant leave to appeal on points of law on the basis of the party\u2019s application for leave to appeal on points of law.\u201d<\/p>\n Section 367b<\/p>\n \u201c…<\/p>\n An application for leave to appeal on points of law shall be lodged with the Supreme Court.<\/p>\n A party shall append a copy of the final judgment of the court of second instance to the application for leave to appeal on points of law; he or she may also append a copy of the first-instance court\u2019s judgment and copies of any other documents of the case file showing any procedural error alleged.<\/p>\n In the application for leave to appeal on points of law a party shall indicate in a precise and specific manner the contentious legal question and the provision of law allegedly infringed; the circumstances showing the importance of the legal question concerned; and briefly state the reasons why the court of second instance had erred in its judgment …<\/p>\n If a party fails to comply with [the above paragraphs] … of this section, an application for leave to appeal on points of law shall be rejected.\u201d<\/p>\n 2.\u00a0\u00a0The Court Fees Act<\/em><\/p>\n 12.\u00a0\u00a0Section 32 of the Court Fees Act (Official Gazette no. 37\/08 with further amendments) provides, as far as relevant, as follows:<\/p>\n \u201c(1)\u00a0The initial value remains the basis for the payment of court fees even if the value has changed during the proceedings …\u201d<\/p>\n 3.\u00a0\u00a0The domestic case-law<\/em><\/p>\n 13.\u00a0\u00a0According to the Supreme Court\u2019s published principled opinion of 16 December 1993, if the claimant fails to indicate the value of the subject matter of the dispute in the claim, he or she has no right to appeal on points of law. This opinion has consistently been followed in domestic case-law, making it crucial for parties to ensure that the value of the subject matter is defined in a timely and appropriate manner.<\/p>\n 14.\u00a0\u00a0It transpires from the Supreme Court\u2019s case-law that anyone who lodges an extraordinary legal remedy is obliged to demonstrate that the conditions of admissibility have been duly met (decisions nos.:\u00a0II\u00a0DoR 214\/2009 of 25 November 2009 and II DoR 63\/2010 of 8 April 2010). Furthermore, the appellant has the burden of proving the compliance with the formal requirements (decision no. II DoR 165\/2011 of 14 July 2011).<\/p>\n 15.\u00a0\u00a0The Supreme Court has previously rejected applications for leave to appeal on points of law as incomplete when the value of the subject matter in dispute was not evident from the application and supporting documents (decisions nos.: II DoR 27\/2010 of 1 April 2010 and II DoR 191\/2010 of 16\u00a0September 2010). In decision no. III DoR 117\/2010 of 8 March 2011, the Supreme Court rejected an application for leave to appeal on points of law because the appellant had failed to submit any evidence which could prove that the value of the subject matter had been defined in accordance with the Civil Procedure Act, noting that the value of the subject matter had not been evident from the judgments of the lower courts that the appellant had submitted to the court.<\/p>\n COMPLAINT<\/strong><\/p>\n 16.\u00a0\u00a0The applicant complained under Article 6 \u00a7 1 of the Convention of having been deprived of access to the Supreme Court. In the applicant\u2019s view, the Supreme Court\u2019s interpretation of the procedural rules concerning the requirement to specify the amount in dispute in the application for leave to appeal on points of law was excessively formalistic and restrictive.<\/p>\n THE LAW<\/strong><\/p>\n 17.\u00a0\u00a0The applicant complained of a violation of his right of access to court under Article 6 \u00a7 1 of the Convention, which, in so far as relevant, reads as follows:<\/p>\n \u201cIn the determination of his civil rights and obligations … everyone is entitled to a fair … hearing … by [a] … tribunal …\u201d<\/p>\n A.\u00a0\u00a0The parties\u2019 submissions<\/strong><\/p>\n 1.\u00a0\u00a0The Government<\/em><\/p>\n 18.\u00a0\u00a0The Government pleaded inadmissibility rationemateriae, submitting that the Supreme Court, when deciding on the application for leave to appeal on points of law, had not ruled on a \u201ccivil right\u201d within the meaning of Article 6 of the Convention, but on the admissibility of a legal remedy.<\/p>\n 19.\u00a0\u00a0The Government further argued that the procedural rules of access to the Supreme Court, which admittedly limited the right of access to court, were aimed at ensuring legal certainty and sound management of court proceedings. In their opinion, the negative consequences of submitting an incomplete application for leave to appeal on points of law were foreseeable and could have been avoided had the applicant, who had been represented by a qualified lawyer, acted with sufficient diligence.<\/p>\n 20.\u00a0\u00a0Furthermore, the Government contended that the determination, on the one hand, of court fees and, on the other hand, of the admissibility of the application, were two completely different operations. The first was based exclusively on the amount in dispute set out in the initial claim (see paragraph 12 above), which was the only relevant amount for the calculation of court fees throughout the proceedings. The second was a judicial assessment by the Supreme Court, based in part on the value of the subject matter in dispute before the Supreme Court.<\/p>\n 2.\u00a0\u00a0The applicant<\/em><\/p>\n 21.\u00a0\u00a0The applicant argued that the Koper District and Higher Courts should have set out the value of the subject matter in dispute in the introduction to the written copy of the judgments. As they had failed to do so, the applicant should not have been made to bear the negative consequences of the courts\u2019 omission.<\/p>\n 22.\u00a0\u00a0Furthermore, he maintained that no rule obliged him to indicate the value of the subject matter in dispute in the application seeking leave to appeal on points of law. In his opinion, the Supreme Court\u2019s interpretation of the party\u2019s obligation to set out the value of the subject matter in dispute in the application for leave to appeal on points of law had been too restrictive and thus incompatible with Article 6 \u00a7 1 of the Convention.<\/p>\n 23.\u00a0\u00a0The applicant further argued that the court fees had been calculated by the Supreme Court taking into account the amount in dispute that he had set out in the claim, but that the Supreme Court had then failed to take into account the same figure for the purpose of examining his application for leave to appeal on points of law.<\/p>\n B.\u00a0\u00a0The Court\u2019s assessment<\/strong><\/p>\n 24.\u00a0\u00a0The Court notes that the Government argued that the present complaint was inadmissible rationemateriae because the Supreme Court had not ruled on a\u201ccivil right (see paragraph 18 above). It notes in this respect that Article 6 \u00a7 1 of the Convention has been previously found to be applicable to leave-to-appeal proceedings before the highest domestic courts (see the case-law referred to in Valchev and Others v. Bulgaria (dec.), no.\u00a047450\/11 and 2 others,\u00a7\u00a7 69-71, 21 January 2014, and Monnell and Morris v. the United Kingdom, 2 March 1987, \u00a7 54, Series A no.\u00a0115).\u00a0Furthermore, the Court does not discern any reason which would make it doubt the existence of a dispute over an arguable civil claim in the present case. Therefore, it finds Article 6 \u00a7 1 of the Convention applicable in its civil limb and dismisses the Government\u2019s plea of inadmissibility rationemateriae.<\/p>\n 25.\u00a0\u00a0The Court observes that in the present case the applicant\u2019s application for leave to appeal on points of law was rejected by the Supreme Court as incomplete because he had failed to indicate and justify the amount of the subject matter at stake in the proceedings before the Supreme Court (see paragraph 8 above).<\/p>\n