SECOND SECTION

DECISION

Application no. 316/19 Majda MOHORIČ against Slovenia

The European Court of Human Rights (Second Section), sitting on 16 March 2021 as a Committee composed of:

Aleš Pejchal, President, Egidijus Kūris, Carlo Ranzoni, judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 14 December 2018,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Ms Majda Mohorič, is a Slovenian national, who was born in 1956 and lives in Starše. She was represented before the Court by Mr J. Korpič, a lawyer practising in Murska Sobota.

2 . The Slovenian Government (“the Government”) were represented by their Agent, Mrs N. Pintar Gosenca, State Attorney.

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

4 . On 29 February 2008, the applicant ’ s common-law partner, V.S., brought an action before the Murska Sobota District Court against company P.M. seeking 57,300 euros (EUR) in compensation for the loss of rent with respect to two flats in a building, which had been returned to his legal predecessor in denationalisation proceedings. The claim related to the period between 1992 and 2007, when the property in question was disposed of by company P.M. In addition, V.S. claimed payment of statutory default interest on the aforementioned amount. He later modified his claim seeking also damages for poor maintenance of the property in the sum of EUR 1,848.00 and submitted an alternative claim seeking reimbursement of rents set out for each individual year together with default interest.

5 . In its pleadings company P.M. invoked a claim it had against V.S. based on the Murska Sobota Local Court ’ s final decision issued in an unrelated set of proceedings. It requested that its claim to the amount of EUR 25,387.58 together with default interest be offset against V.S. ’ s claim. Subsequently, it extended the objection by claiming that the amount of EUR 38,171.92 together with default interest be offset.

6 . Following the re-examination of the case after it had been remitted by the Maribor Higher Court, the Murska Sobota District Court delivered a judgment on 28 June 2013. It established that V.S. had a valid claim to the amount of EUR 39,040.11, which included the principal claim to the amount of EUR 25,326.50 and the default interest in the sum of EUR 13,713.61. The court also found that company P.M. had an enforceable claim against V.S. to the amount of EUR 48,805.61, which comprised the principal claim to the amount of EUR 30,807.49 and the default interest in the sum of EUR 17,998.12. The court offset the claims to the amount of EUR 39,040.11 and dismissed V.S. ’ s primary and alternative claim.

7 . V.S. appealed.

8 . On 8 January 2014 the Maribor Higher Court modified the first ‑ instance court ’ judgment in the formulation of the operative part, finding that the first instance court should have not dismissed the entire claim of V.S. but only the part exceeding the amount that had been offset.

9 . On 7 February 2014 V.S. lodged a request for leave to appeal on points of law with the Supreme Court. On the first page of the request he indicated that the amount in dispute was EUR 59,148.00 plus interest. He argued that the case raised an important legal issue relating to the way the compensation for the inability to use property had been calculated. In addition, he disputed the way his claim was offset, arguing that the set-off had not been permissible and had not been supported by any case-law.

10 . On 20 February 2014 V.S. lodged an appeal on points of law with the Murska Sobota District Court concerning the dismissed part of his claim. On the front page of his appeal on points of law as well as in the reasoning that followed, he indicated EUR 49,286.27 as the disputed amount. He stated that given that the amount at issue was EUR 49,286.27 he fulfilled the conditions for admissibility of the appeal on points of law. He noted that the claim he had sought to establish in the first-instance proceedings was higher than what he had been awarded. In particular he argued that had the compensation been calculated correctly he should have been awarded EUR 88,326.38 instead of only EUR 39,040.11, which had been offset against P.M. ’ s claim. As indicated in V.S. ’ s appeal on points of law these amounts included the principal amount together with the default interest. V.S. repeated the arguments he had put forward in his request for leave to appeal on points of law as regards the calculation of the rents and the allegedly impermissible set-off between his and company P.M. ’ s claim. He complained of violations of procedural rules in the first and second instance proceedings and alleged that the law had been wrongly applied.

11 . On 15 May 2014 the Supreme Court rejected V.S. ’ s request for leave to appeal on points of law as inadmissible. It noted that the request for leave to appeal could be lodged if the disputed amount was between EUR 2,000 and EUR 40,000. In the present case, however, V.S challenged the decision with respect to the amount of EUR 59,148 (EUR 57,300 in respect of the loss of rental income and EUR 1,848 with respect to inadequate maintenance).

12 . On 14 January 2016 the Supreme Court rejected V.S. ’ s appeal on points of law finding that it was not allowed. It noted that V.S. challenged the part of the lower court ’ s judgment that dismissed his claim, namely the part concerning the amount of EUR 49,286.27. The latter represented the difference between EUR 88,326.38 and EUR 39,040,11 (see paragraph 10 above). However, pursuant to section 39 of the Civil Procedure Act, the disputed amount for the purposes of the ratione valoris threshold should be determined by reference to the principal claim. Consequently, the disputed amount in the present case represented the difference between EUR 57,300 (the principle amount claimed, see paragraph 4 above) and EUR 25,326.50 (the principle amount that was awarded, see paragraphs 6 and 8 above). The disputed amount therefore did not exceed the ratione valoris threshold.

13 . On 5 April 2016 V.S. lodged a constitutional complaint against the Supreme Court ’ s decision of 14 January 2016. He alleged, among other things, a violation of Article 6 of the Convention, and submitted the following arguments in support of his allegations:

- By checking the register of received cases, the domestic courts could have noticed that a request for leave to appeal on points of law as well as an appeal on points of law had been lodged in his case.

- The Supreme Court ’ s opinion in the decision of 15 May 2014 was correct and the disputed amount exceeded the threshold ratione valoris , namely EUR 40,000.

- The decisions of the Supreme Court were arbitrary and did not provide for judicial protection. He paid court fees for both sets of proceedings with a view to obtaining judicial protection.

- The Supreme Court ’ s panels deciding on his request for leave to appeal on points of law and his appeal on points of law were presided by the same judge (A.F.) and included judges N.B, and M.K.P., which was unacceptable.

14 . On 30 August 2017 V.S. passed away. It appears that the Constitutional Court was not aware of it.

15 . On 18 June 2018 the Constitutional Court decided not to admit the constitutional complaint for consideration based on section 55b (2) of the Constitutional Act.

16 . The relevant part of the Civil Procedure Act (Official Gazette, no. 73/07 – official consolidated text, as amended, hereinafter “the CPA”) at the relevant time read as follows:

Section 39

“When the amount in dispute is decisive in order to establish... the right to appeal on points of law or in other cases stipulated by this Act, such amount shall be defined as the value of the principal claim.

Interest, cost and expenses, contractual penalty and other accessory claims are not to be taken into account unless they are pursued as a principal claim.”

Section 367

“...

An appeal on points of law shall be permitted if the value of the disputed part of the final judgment exceeds EUR 40,000 (admissible appeal on points of law).

If an appeal on points of law under the preceding paragraph is not admissible, it may only be permitted provided that it is granted by the court pursuant to section 367a of this Act (granted [leave to] appeal on points of law).

If the law stipulates that no appeal on points of law shall be permitted or if the value of the disputed part of the final judgment does not exceed EUR 2,000, the court should not grant leave to appeal on points of law. ...

...”

Section 367a

“The Supreme Court shall grant [leave to] appeal on points of law when its decision is expected to tackle a point of law of significant importance in terms of ensuring legal certainty, uniform application of the law or its further development through case law. ...

... ”

Section 367b

“...

The request for leave to appeal on points of law shall be lodged with the Supreme Court.

...”

Section 373

“The appeal on points of law shall be lodged with the court which delivered the judgment at first instance...

...”

Section 374

“A judge of the first-instance court shall reject by way of a decision without hearing a late, incomplete or inadmissible appeal on points of law.

...”

Section 377

“The Supreme Court shall reject by way of a decision a late, incomplete or inadmissible appeal on points of law, if the judge of the first-instance court has not already done so within the scope of his rights (Section 374).”

COMPLAINT

17 . The applicant complained that the Supreme Court ’ s decisions rejecting V.S. ’ s appeal on points of law and his request for leave to appeal on points of law had been in breach of the right of access to court and contrary to Articles 6 § 1 and 13 of the Convention.

THE LAW

18 . The applicant complained of a violation of the right of access to court and relied on Articles 6 § 1 and 13 of the Convention. In this respect Article 6 § 1 is to be regarded as constituting a lex specialis in relation to Article 13 (see Sukhorubchenko v. Russia , no. 69315/01, § 60, 10 February 2005). The Court will therefore consider the complaint only under Article 6 § 1, which, in so far as relevant, reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing ... by [a] ... tribunal ...”

19 . The Government argued that the applicant could not be considered to be a victim of the alleged violation.

20 . They further argued that the complaints before the Constitutional Court and the Court concerned only the rejection of the appeal on points of law. As regards the decision concerning the request for leave to appeal on points of law the applicant or V.S. failed to exhaust domestic remedies.

21 . The Government explained that nothing prevented the parties from lodging an appeal on points of law as well as a request for leave to appeal on points of law in the same case though this was neither envisaged in law nor necessary. The decision on each of the remedies was taken independently, even if by the same panel, and the Supreme Court was not required to verify whether the appellant had lodged also another remedy before it. If the same part of the lower court ’ s judgment was challenged one of the remedies would inevitably be inadmissible.

22 . With regard to the rejection of V.S. ’ s appeal on points of law the Government argued that the purpose of the provisions concerning ratione valoris threshold was to ensure legal certainty and proper administration of justice. The rejection of the appeal on points of law in the present case was based on a clear legal provision which was consistently applied in practice. V.S. in all his previous pleadings indicated the value of the dispute by reference to the principal amount. It is unclear why he changed the approach in his appeal on points of law. V.S. was represented by a legal professional, as required by law, and the procedural error was solely a consequence of his actions.

23 . The applicant argued that she as V.S. ’ s successor should have been able to continue the proceedings, including before the Court. She further argued that the first-instance court should have rejected the appeal on points of law further to section 374 of the CPA (see paragraph 16 above). Had this happened, V.S. would have lodged a constitutional complaint against the decision rejecting the request for leave to appeal on points of law as he would have been aware of the outcome of the proceedings concerning the appeal on points of law. In this connection, the applicant referred to the Ljubljana Higher Court ’ s decision of 12 June 2019 issued in another – unrelated – set of proceedings. In this decision the aforementioned higher court upheld a first-instance court ’ s rejection of an appeal on points of law.

24 . The applicant criticised the fact that the Supreme Court, sitting in a panel with identical composition, had rejected first V.S. ’ s request for leave to appeal on points of law and subsequently his appeal on points of law. As regards the latter, the applicant argued that when the claims had been offset during the proceedings, the principal claim and the interest should have been considered together. She submitted the Ljubljana Higher Court ’ s decision of 25 November 2009 issued in unrelated proceedings which indicated that the principle amount and the default interest should be considered together when claims were being offset. Moreover, she argued that the amount that had been offset in V.S. ’ s case had exceeded the ratione valoris threshold.

25 . Finally, in her observations of 3 August 2020 the applicant alleged that the domestic proceedings had been too long and argued that the decision rejecting the request for leave to appeal on points of law was insufficiently reasoned.

26 . The Court considers that it does not need to rule on the objection concerning the victim status raised by the Government (see paragraph 19 above) as the application is in any event inadmissible for the following reasons.

27 . The general principles on access to the superior courts and the ratione valoris restrictions in this respect were set out in Zubac v. Croatia ([GC], no. 40160/12, §§ 80-99, 5 April 2018).

28 . As to the present case, the Court agrees with the Government that the applicant or V.S. did not exhaust domestic remedies with respect to the rejection of the request for leave to appeal on points of law (see paragraph 20 above). The Court finds the applicant ’ s argument that the first-instant court should have rejected V.S. ’ s appeal on points of law (see paragraph 23 above), which would have presumably happened earlier, irrelevant. It suffices to note that section 377 of the CPA (see paragraph 16 above) clearly allowed for the possibility that the Supreme Court rejected an appeal on points of law if it did not comply with the admissibility requirements. Therefore and in so far as the applicant complained about the decision of 15 May 2014 (see paragraph 11 above) the application should be declared inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention. However, the Court will have regard to this decision in so far as it is relevant for the assessment of the remaining part of the application.

29 . Turning to the question whether the decision of 14 January 2016 rejecting V.S. ’ s appeal on points of law (see paragraph 12 above) was in breach of Article 6 § 1 , the Court observes that the statutory ratione valoris threshold (see section 367 of the CPA, cited in paragraph 16 above) served a legitimate aim of ensuring, inter alia , proper administration of justice. It further notes that prior to the appeal on points of law the case was heard by two national judicial levels exercising full jurisdiction in the matter and that no discernible issue of lack of fairness arises in this case (see Zubac , cited above, § 108). Having regard to the wide margin of appreciation enjoyed in this area by the States (see Zubac , cited above, § 108), the Court will proceed to assess other circumstances relevant to the question of proportionality of the impugned restriction on access to court in the present case (see Zubac , cited above, § 109).

30 . In this connection, it is observed that the domestic law, in particular Section 39 of the CPA (see paragraph 16 above), had made it clear that the amount in dispute which had been relevant for the assessment of the compliance with the ratione valoris threshold should be defined as the value of the principal claim, excluding, inter alia , the interest. The Ljubljana Higher Court ’ s decision to which the applicant referred (see paragraph 24 above) is not able to alter this finding as by itself it does not amount to an established case-law and, more importantly, is concerned with the legal set ‑ off of claims and not with the indication of the disputed amount for the purpose of ratione valoris rules. Therefore, V.S., who was represented in the proceedings by a qualified lawyer, had no reasons to believe that he should have included the interest when indicating the disputed amount. In fact he should have known that the disputed part of the claim – that was, as formulated by him, the part that had been dismissed by the lower courts (see paragraph 10 above) – did not reach the ratione valoris threshold (EUR 40,000) for the appeal on points of law. The Court moreover notes that nothing prevented V.S. to challenge this part of the lower courts ’ judgments by first requesting a leave to appeal on points of law.

31 . It is true that V.S. did in fact lodge a request for leave to appeal on points of law (see paragraph 9 above). However, in that request he indicated that he wished to challenge the lower court ’ s judgment in respect of both: the part of the claim that had been awarded but offset and the part that had been dismissed. He indicated as the disputed value his entire principal claim. As established by the Supreme Court on 15 May 2014, this amount reached the ratione valoris threshold for appeal on points of law and thus a leave to appeal was not required (see paragraph 11 above). Therefore, the decision of 15 May 2014 cannot serve to show that a request for leave to appeal on points of law based on the same submissions V.S. made in his appeal on points of law, namely the indication of the dismissed part of the claim as the disputed amount, would have been rejected. In this regard the Court does not find it significant that both impugned decisions were adopted by a panel with identical composition. They were adopted in 2014 and 2016, respectively, in separate sets of proceedings and were based on the arguments V.S. advanced in each of the remedies.

32 . In sum, the Court finds that the impugned restriction, which was based on a clear statutory provision, was foreseeable. The error which led to the denial of access to the Supreme Court was entirely attributable to V.S., who was represented by a qualified lawyer. There are no grounds for finding that the Supreme Court ’ s application of law amounted to an excessive formalism.

33 . The complaint concerning the right of access to court should thus be rejected as manifestly ill-founded under Article 35 §§ 3 (a) and 4 of the Convention.

34 . In so far as the applicant ’ s submissions concerning the length of the proceedings and the lack of reasoning (see paragraph 25 above) could be understood as allegations of violations of the Convention, the Court notes that they were submitted in her observations of 3 August 2020. Given that the proceedings in question were terminated in 2018 (see paragraph 15 above) and these complaints were submitted outside the six-month time ‑ limit, the Court is precluded from examining them pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 8 April 2021 .

Hasan Bakırcı Aleš Pejchal Deputy Registrar President