FOURTH SECTION
\nDECISION<\/p>\n
Application no. 45483\/13
\nBogomir JELEN and Helena RIFELJ
\nagainst Slovenia<\/p>\n
The European Court of Human Rights (Fourth Section), sitting on 25\u00a0September 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 10 July 2013,<\/p>\n
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
THE FACTS<\/strong><\/p>\n 1.\u00a0\u00a0The applicants, Mr BogomirJelen and Ms Helena Rifelj, are Slovenian nationals who were born in 1946 and 1953 respectively and live in Grosuplje. They were represented before the Court by Mr K. Plau\u0161tajner, a lawyer practising in Ljubljana.<\/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 14 March 2005 the applicants concluded a purchase contract with company X for a flat, which included parking space no. 14. On 6\u00a0April\u00a02005 the flat in question was handed over to the applicants. After paying the purchase price the applicants requested the originals of the purchase contract. Company X informed the applicants that it had sold parking space no.\u00a014 to another individual. Instead, it offered the applicants another parking space and compensation of 500 euros (EUR). The applicants refused the offer on the grounds that the new parking space was smaller and its location made it difficult to park.<\/p>\n 5.\u00a0\u00a0On 2 September 2005 the applicants brought civil proceedings against company X with the aim of obtaining documents allowing them to register their ownership of parking space no. 14. Specifically, they requested that the following documents be submitted to them: (a) the originals of the purchase contract; (b) an original annex to the purchase contract certified by a notary, according to which they could register their property right with the Land Registry in respect of the flat and parking space no.\u00a014; and (c) a document certified by a notary according to which they could remove any lien concerning the above property. The applicants fixed the amount in dispute at 2,500,000 tolars (SIT \u2013 approximately EUR\u00a010,432).<\/p>\n 6.\u00a0\u00a0The defendant company lodged a counterclaim, requesting that the applicants sign a modified purchase contract for parking space no. 9. On 19\u00a0December 2005 the court invited the defendant company to fix the amount in dispute. On 23\u00a0December 2005 the defendant company fixed the amount in dispute at SIT 2,500,000.<\/p>\n 7.\u00a0\u00a0On 13 April 2006 the Ljubljana District Court upheld the applicants\u2019 claim. On 21\u00a0February\u00a02007, following an appeal by the defendant company, the Ljubljana Higher Court quashed the first-instance judgment and remanded the case for re-examination.<\/p>\n 8.\u00a0\u00a0On 7 February 2008 the applicants requested that an interim judgment be issued concerning the flat. As regards parking space no. 14 they modified their claim, requesting a declaratory judgment finding that they had validly purchased the parking space. The court accepted this modification of the claim.<\/p>\n 9.\u00a0\u00a0On 13 May 2008 the District Court issued an interim judgment, partly upholding the applicants\u2019 claims (a) and (b) (see paragraph 5 above) concerning the flat whereas it left open the question of ownership over parking space no.\u00a014. The court dismissed claim (c), finding that the property at issue had not been subject to any lien.<\/p>\n 10.\u00a0\u00a0At the oral hearing of 15 May 2008 the applicants further specified their remaining (modified) claim concerning parking space no. 14 (see paragraph 8 above) by requesting a declaratory judgment that they had purchased it. The court allowed this modification. On the same day the District Court upheld the applicants\u2019 modified claim concerning parking space no. 14 and dismissed the defendant company\u2019s counterclaim.<\/p>\n 11.\u00a0\u00a0The defendant company appealed against the judgment of 15 May 2008. On 3 December 2008 the Ljubljana Higher Court quashed that judgment and dismissed the applicants\u2019 request for a declaratory judgment, finding that because the respondent had not been the registered owner of parking space no. 14, the applicants could have requested compensation for non-fulfilment of the contract or another parking space only.<\/p>\n 12.\u00a0\u00a0On 19 January 2009 the applicants lodged an appeal on points of law (revizija) against the Ljubljana Higher Court\u2019s decision of 3\u00a0December 2008.<\/p>\n 13.\u00a0\u00a0At the relevant time the Civil Procedure Act set down a value\u2011of\u2011dispute (rationevaloris) threshold for admissibility of an appeal on points of law of EUR 4,172.92. This threshold related to the amount in dispute before the Supreme Court (section 367 of the Civil Procedure Act, see paragraph 19 below).<\/p>\n 14.\u00a0\u00a0The applicants were ordered by the Ljubljana District Court to pay court fees for their appeal on points of law (see paragraph 12 above) fixed in relation to the amount in dispute set out in the claim (EUR\u00a010,432). The court fees were fixed at EUR 423. The payment order included a notice that an objection could be lodged against it for, inter alia, incorrect determination of the court fees. The applicants paid the fees.<\/p>\n 15.\u00a0\u00a0On 13 September 2012 the Supreme Court rejected the applicant\u2019s appeal on points of law as inadmissible for failure to fix the amount in dispute. The Supreme Court pointed out that the applicants had modified their claim seeking a declaratory judgment without indicating the value of this modified claim. The amount in dispute as indicated in the original claim, which did not include a claim for a declaratory judgment, could not be taken into account for the purposes of the value-of-dispute threshold. The Supreme Court further observed that the applicants had, initially, fixed an unidentified total amount in dispute of EUR 10,432 with regard to several claims contrary to section 41 of the Civil Procedure Act (see paragraph 19 below), which required the specification of the value of the subject matter of each claim. The applicants\u2019 appeal on points of law would, therefore, have been inadmissible even with regard to their initial claims.<\/p>\n 16.\u00a0\u00a0The applicants lodged a constitutional complaint alleging, inter alia, a violation of their rights to legal remedy and to equal protection of rights. In particular they argued that pursuant to section 44(2) of the Civil Procedure Act (see paragraph 19 below) the value of the subject matter of the dispute set out in the claim should be decisive. In their view, section 41 of the aforementioned Act did not apply to their case.<\/p>\n 17.\u00a0\u00a0On 24 January 2013 the Constitutional Court dismissed the applicants\u2019 constitutional complaint, finding that it did not concern an important constitutional question or entail a violation of human rights which would have serious consequences for the applicants.<\/p>\n B.\u00a0\u00a0Relevant domestic law and practice<\/strong><\/p>\n 18.\u00a0\u00a0The Supreme Court has the competence to decide cases concerning, inter alia, extraordinary legal remedies, and perform other functions provided for by law, such as ensuring uniform case-law.<\/p>\n 19.\u00a0\u00a0The relevant provisions of the Civil Procedure Act (Official Gazette no. 726\/99, with further relevant amendments) state:<\/p>\n Section 39<\/p>\n \u201cIf the … right to appeal on points of law … is made to depend upon the amount in dispute, the amount shall be defined as the value of the principal claim.<\/p>\n Interest, costs and expenses … and other accessory claims are not to be taken into account unless they are pursed as a principal claim.\u201d<\/p>\n Section 41<\/p>\n \u201cIn actions containing several claims of the same claimant against the same defendant which are based upon the same factual and legal backgrounds, the jurisdiction shall be determined according to the sum of the values of all claims.<\/p>\n If the claims are based upon different backgrounds or are pursued against several defendants, the jurisdiction shall be determined according to the value of each separate claim.\u201d<\/p>\n Section 44<\/p>\n \u201cIf in the action containing a non-pecuniary claim the claimant declares his or her willingness to accept a certain sum of money in lieu of satisfying the claim, such a sum shall be considered as the amount in dispute.<\/p>\n In other non-pecuniary claims, the amount in dispute shall be defined as the amount fixed by the claimant in the legal action.<\/p>\n If, in the case referred to in the second paragraph of the present section, the amount in dispute fixed in the action is evidently too high or too low or if the claimant sets out only the overall amount despite the fact that he or she is pursuing several claims against the same defendant, and the conditions under section 41(1) have not been met, thereby putting into question the … right to appeal on points of law, the court shall, not later than upon the main hearing and before examining the merits, verify the correctness of the fixed amount in an expeditious and appropriate manner.The court decree upon the correctness of the determination of the amount in dispute shall be issued immediately and shall not be subject to appeal.\u201d<\/p>\n Section 45<\/p>\n \u201cIf the claim does not concern a monetary sum and where … the right to appeal on points of law depend[s] on the amount in dispute which the claimant has failed to fix in his or her legal action, the court shall act pursuant to Article 108 hereof governing the proceedings with incomplete pleadings.\u201d<\/p>\n Section 108<\/p>\n \u201cIf … [a claim] is unclear or does not contain all of the information necessary for proceeding with the case, the court shall ask the person … to correct or supplement. … [it]. …\u201d<\/p>\n Chapter 26 \u2013 Extraordinary legal remedies<\/p>\n Section 367<\/p>\n \u201c…<\/p>\n In pecuniary disputes an appeal on points of law shall be permitted if the value of the subject matter of the part of the final judgment which is being challenged exceeds [SIT] 1,000,000.<\/p>\n …\u201d<\/p>\n 20.\u00a0\u00a0Section 18 of the Court Fees Act (Official Gazette no. 37\/08), as applicable at the time the appeal on points of law was lodged, provided that when a decision was challenged only in part, the court fees in relation to the respective remedy were to be calculated on the basis of the value of the challenged part of the decision.<\/p>\n 21.\u00a0\u00a0Section 32 of the Court Fees Act provided 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 been changed during the proceedings if not otherwise provided in the following paragraphs.<\/p>\n (2)\u00a0If the court pursuant to section 31 of this Act determined new value [that is when it considered of its own motion or following the respondent\u2019s objection that the value set by the party was too low] the new value should be taken as the basis for the payment of court fees. …\u201d<\/p>\n 22.\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. Furthermore, the following principles can be discerned from the Supreme Court\u2019s case-law, submitted by the Government. An appeal on points of law in pecuniary disputes is permitted if the value of the subject matter of the part of the decision challenged thereby exceeds the statutory value-of-dispute threshold. It is thus crucial for the parties to ensure that the value of such subject matter is defined in a timely and appropriate manner. If the claimant pursues several claims he or she should indicate a value for each of them or else the appeal on points of law may be inadmissible. Appeals on points of law are also not permitted when the value of the subject matter of the dispute is set at the beginning but the claim is subsequently modified without its (new) value being defined. This is so even when the court has failed to invite the claimant to correct this shortcoming and when the respondent has not objected to the claimant\u2019s failure to set out appropriately the value of the subject matter of the dispute. In such a situation both parties lose their right to lodge an appeal on points of law.<\/p>\n 23.\u00a0\u00a0The Constitutional Court in its decision of 18 October 2007 in a case nos. Up-2089\/06 and U-I-106\/07 found that even though the first-instance court might have breached the law by not acting in line with section 45 of the Civil Procedure Act this had not amounted to a violation of the equal protection of rights because it had not created a disadvantageous position with respect to access to Supreme Court for the party in question. Both parties could have protected their interest in having access to Supreme Court; the claimant by properly defining the value of the subject-matter of the dispute and the respondent by objecting if the claimant had failed to do so. The Constitutional Court moreover noted that the system whereby the Supreme Court independently assessed the value in dispute in relation to the admissibility of the appeal on points of law, regardless of the lower courts\u2019 assessment of the value of the subject matter of the dispute, was not incompatible with the Constitution. Referring to the principle of legal certainty, it stressed that an appeal on points of law was a remedy which allowed for interference with final judicial decisions and thus required a restrictive approach.<\/p>\n COMPLAINT<\/strong><\/p>\n 24.\u00a0\u00a0The applicants complained under Article 6 \u00a7 1 of the Convention of having been deprived of access to the Supreme Court. In the applicants\u2019 view the first-instance court should have instructed them to specify the new value of the subject matter of the dispute in accordance with sections 44 and 45 of the Civil Procedure Act.<\/p>\n THE LAW<\/strong><\/p>\n 25.\u00a0\u00a0The applicants complained of a violation of their right to 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 26.\u00a0\u00a0The Government pleaded non-exhaustion of domestic remedies, submitting that the applicants had failed to set out the arguments they had pursued before the Court in their constitutional complaint.<\/p>\n 27.\u00a0\u00a0They further argued that the determination, on the one hand, of court fees and, on the other hand, of the admissibility of the appeal on points of law, were two completely different operations. The first one was administrative in nature, was based on the amount in dispute set out in the claim, could be challenged by means of an objection, and had been in the present case done by a first-instance court. The determination of the admissibility of the appeal on points of law was a judicial assessment by the Supreme Court, based on the value of the subject-matter disputed before the Supreme Court.<\/p>\n 28.\u00a0\u00a0The Government maintained that the applicants should \u2013 in their original claim and when making modifications \u2013 have set out the appropriate value in dispute, thereby ensuring their access to the Supreme Court. As the latter could not have determined the value of the subject matter challenged in the applicant\u2019s appeal on points of law, it had rightly rejected it. The Supreme Court had followed the well-established case-law of which the applicants, who had been represented by a qualified lawyer, should have been aware. Their failure to comply with the respective requirements could not be attributed to the State.<\/p>\n 29.\u00a0\u00a0As regards the position of the respondent party in the domestic proceedings in question, the Government submitted that the first-instance court had invited it to set out the value of the counterclaim because this had been important for, inter alia, the subject-matter jurisdiction of that court. The court had had no reason to invite the applicants to do that, as they had set out the overall value of the subject matter of the legal action at the beginning of the proceedings and thus the court had been in a position to proceed on the merits. Moreover, according to the Government, neither the applicants nor the respondent had had the right to appeal on points of law as regards the modified claim: the applicants because they had not set out the value of its subject matter, and the respondent because it had failed to react to this failure during the first-instance proceedings.<\/p>\n 30.\u00a0\u00a0The Government also submitted that the first-instance court might have overlooked the applicant\u2019s failure to set out the value of the subject matter of the modified claim because at that stage of proceedings this had been no longer relevant, other than for the question of admissibility of the future appeal on points of law.<\/p>\n 2.\u00a0\u00a0The applicants<\/em><\/p>\n 31.\u00a0\u00a0The applicants argued that they had invoked the main arguments pursued in the proceedings before the Court in their constitutional complaint and had therefore properly exhausted domestic remedies.<\/p>\n 32.\u00a0\u00a0They further argued, referring to section 18(5) of the Court Fees Act (see paragraph 20 above), that the court fees for the appeal on points of law should have been determined based on the value of the subject matter of the challenged part of the decision, which in their case had been the value of the subject matter of the modified claim. As they had failed to indicate such a value, the Ljubljana District Court should have warned them in accordance with section 45 of the Civil Procedure Act (see paragraph 19 above), just as it had warned the defendant when it had failed to indicate the value of the subject matter of the counterclaim (see paragraph 6 above). The applicants further argued that the court fees had been calculated taking into account the originally specified value of the subject matter of the dispute, while the Supreme Court had not taken into account the same amount for the purpose of examining their appeal on points of law.<\/p>\n 33.\u00a0\u00a0The applicants disagreed with the Constitutional Court\u2019s decision of 18 October 2007 (see paragraph 23 above). They also pointed out that although the Supreme Court\u2019s case-law might be extensive this does not make it compatible with human rights. In their view, the Supreme Court\u2019s decisions finding that the party\u2019s failure to set out the value of the subject matter of the modified claim precluded access to an appeal on point of law, some of which had been already delivered by 2002, had been contrary to Article 6 \u00a7 1 of the Convention.<\/p>\n B.\u00a0\u00a0The Court\u2019s assessment<\/strong><\/p>\n 34.\u00a0\u00a0The Court takes note of the objection of non-exhaustion of domestic remedies raised by the Government (see paragraph 26 above). However, in the circumstances of the present case, it is not necessary to examine this objection, the present application being in any case inadmissible, for the following reasons.<\/p>\n 35.\u00a0\u00a0The Court observes that the present case concerns the right of access to the Supreme Court in relation to the application of the value-of-dispute requirement. In Slovenia, for an appeal on points of law to be admissible the value of its subject matter must exceed a statutorily-defined threshold. This value can be determined from the value set out in the legal action or fixed during the proceedings under the conditions set out in the Civil Procedure Act (see paragraph 19 above). The domestic court is required under the aforementioned Act to verify, before examining the merits, that the value of the subject matter has been fixed appropriately.<\/p>\n 36.\u00a0\u00a0In the present case, the applicants\u2019 appeal on points of law was rejected by the Supreme Court because they had failed to fix the amount of the subject matter of the modified claim which was at stake in the proceeding before the Supreme Court (see paragraph 15 above). The decision was based on the relevant legislation and the Supreme Court\u2019s established case-law, in accordance with which failure to fix properly the value of the subject matter in issue should lead to the rejection of an appeal on points of law. The applicants complained that this requirement had deprived them of access to the Supreme Court. They relied on two arguments. Firstly, the first-instance court had failed to invite them to fix the value of the subject matter of the modified claim although it had warned the respondent when it had failed to set out the value of the subject matter of the counterclaim. Secondly, the court fees for the appeal on points of law had been calculated taking into account the originally specified value of the subject matter of the dispute, while the Supreme Court had not taken this value into account for the value-of-disputepurpose (see paragraph 32 above).<\/p>\n