FIRST SECTION

DECISION

Application no. 21550/12 Nevenka KUZMANOVIĆ against Croatia

The European Court of Human Rights (First Section), sitting on 14 May 2019 as a Committee composed of:

Krzysztof Wojtyczek, President, Pere Pastor Vilanova, Pauliine Koskelo, judges, and Renata Degener, Deputy Section Registrar ,

Having regard to the above application lodged on 23 March 2012,

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 Nevenka Kuzmanović, is a Croatian national, who was born in 1955 and lives in Varaždin. She was represented before the Court by Mr T. Juričan, a lawyer practising in Varaždin.

2. The Croatian Government (“the Government”) were represented by their Agent, Ms Å . Sta ž nik.

A. The circumstances of the case

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

4. On 9 March 2007 the applicant ’ s former husband, M.K., brought a civil action in the Vara ž din Municipal Court ( Op ć inski sud u Vara ž dinu ) asking that court to establish that he owned a one-half share in a flat in Varaždin and to order the applicant to allow him to register ownership of that share in the flat with the land registry. He specified the value of his claim as 101,000 Croatian kunas (HRK).

5. The civil action was forwarded to the applicant for a response but as she was absent the letter was served on her minor daughter who did not inform the applicant of that correspondence.

6. On 25 April 2007 the Varaždin Municipal Court adopted a judgment in default of a response, granting M.K. ’ s civil claim in full.

7. When the applicant learned of the default judgment she lodged a request for the case to be reinstated and an appeal challenging the first ‑ instance judgment before the Vara ž din County Court ( Ž upanijski sud u Vara ž dinu ).

8. On 20 October 2009 the Varaždin County Court dismissed the appeal as ill-founded.

9. On 30 November 2009 the applicant lodged an appeal on points of law with the Supreme Court ( Vrhovni sud Republike Hrvatske ) challenging the lower courts ’ judgments.

10. On 31 May 2010 the Supreme Court declared the applicant ’ s appeal on points of law inadmissible as incompatible ratione valoris . It interpreted M.K. ’ s civil claim as two separate actions: one for the establishment of his share in the flat, and the other for an order securing the registration of his ownership of that share at the land registry. The Supreme Court thus divided the stated value of the claim by two and held that the resulting value of HRK 50,500 did not reach the minimum ratione valoris threshold of HRK 100,000 (approximately 13,700 euros) for an appeal on points of law.

11. The applicant then lodged a constitutional complaint before the Constitutional Court ( Ustavni sud Republike Hrvatske ) arguing that M.K. ’ s claim had consisted of two aspects which could not be separated from one another, and that the Supreme Court ’ s decision finding that the case concerned two actions each with a value of HRK 50,500 had therefore been unreasonable.

12. On 9 February 2012 the Constitutional Court declared the applicant ’ s constitutional complaint inadmissible. It held that the Supreme Court ’ s decision was not arbitrary and thus did not raise a constitutional issue.

13. The decision of the Constitutional Court was served on the applicant ’ s representative on 5 March 2012.

B. Relevant domestic law and practice

14. The relevant domestic law and practice is set out in the case of Jureša v. Croatia ( no. 24079/11, §§ 18-20 , 22 May 2018).

COMPLAINTS

15. The applicant complained, under Article 6 of the Convention and Article 1 of Protocol No. 1 thereto, of unfairness of the civil proceedings leading to the restriction of her property rights and a lack of access to the Supreme Court and the Constitutional Court in that respect.

THE LAW

A. Alleged violation of Article 6 § 1 of the Convention on account of the lack of access to court

16. The applicant complained under Article 6 § 1 of the Convention that her right to a fair hearing had been violated by the Supreme Court when it found her appeal on points of law inadmissible ratione valoris . In particular, she argued that the procedural rule applied by the Supreme Court, according to which the value of the dispute was divided by two, was not applicable in her case as M.K. ’ s claim had consisted of two aspects which could not be separated from one another . She also complained that the Constitutional Court had deprived her of access to that court. She relied on Article 6 of the Convention, which, in so far as relevant, reads as follows:

Article 6

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

1. Access to the Supreme Court

(a) The parties ’ arguments

17. The Government claimed that the applicant had failed to exhaust all available domestic remedies since she had never complained that the value of the dispute was set too high or too low. By not doing so, the applicant had consciously exposed herself to the possibility of her appeal on points of law being declared inadmissible on ratione valoris grounds, because she had known that her right to appeal on points of law depended on the value of the dispute.

18. The Government also claimed tha t the complaint was of a fourth ‑ instance nature since it concerned the application of domestic law.

19. The applicant, in response, maintained her arguments.

(b) The Court ’ s assessment

20. The Court finds that it is not necessary to address the Government ’ s objection that the applicant had failed to exhaust domestic remedies as her complaint is in any event inadmissible for the following reasons.

21. The Court notes that it has already found no violation of Article 6 § 1 of the Convention in a case raising similar issues to those in the present case (see Jureša v. Croatia , no. 24079/11, 22 May 2018).

22. Having examined the submitted material, the Court considers that the applicant has not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case.

23. In particular, from 1 February 2010 onwards, the Supreme Court started to change its interpretation of section 37(2) of the Civil Procedure Act in cases similar to that of the applicant, considering claims for recognition of ownership and the issuance of a permission to register title ( clausula intabulandi ) as two separate claims. This interpretation has remained the practice since 10 May 2010 (see Jureša , cited above, § 43) . Thus, the present case does not concern divergent approaches by the Supreme Court which could create case-law uncertainty, but rather a reversal of case-law, which falls within the discretionary powers of the domestic courts, particularly in countries which have a system of written law (as in Croatia) and which are not, in theory, bound by precedent (see Jureša , cited above, § 43).

24. The Court further notes that Article 6 of the Convention does not compel the Contracting States to set up courts of appeal or of cassation (see Brualla Gómez de la Torre v. Spain , 19 December 1997, § 37, Reports of Judgments and Decisions 1997 ‑ VIII ). While it is true that, where such courts do exist (ibid, loc. cit.), the guarantees of that Article must be complied with, the conditions of admissibility of remedies to highest domestic courts may be stricter than those for an ordinary appeal (see Krpi ć v. Croatia (dec.), no. 75012/12, § 41, 31 May 2016, and SierpiÅ„ski v. Poland , no. 38016/07, § 99, 3 November 2009).

25. Accordingly, the present complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

2. Access to the Constitutional Court

26. The applicant complained that she had been deprived of her right of access to the Constitutional Court when it had declared her constitutional complaint inadmissible.

27. The Court notes that even though the Constitutional Court did declare the applicant ’ s constitutional complaint inadmissible, its decision was not based on any formal grounds. Rather, by holding that the contested decision of the Supreme Court was not arbitrary and that thus did not raise any constitutional issue, the Constitutional Court in fact examined the merits of the applicant ’ s constitutional complaint, in particular her argument that she had been denied access to court because her appeal on points of law had been unjustifiably declared inadmissible (see Krpi ć , cited above, § 42).

28. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Other alleged violations of the Convention

29. The applicant complained of a violation of her right to a fair hearing before the lower courts and of a restriction of her property rights. She relied on Article 6 of the Convention (cited above) and Article 1 of Protocol No. 1 to the Convention, which reads as follows:

Article 1 of Protocol No. 1

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

30. The Government contested those arguments.

31 . The Court reiterates its above-mentioned findings (see paragraph 23 above) concerning the applicant ’ s access-to-court complaint: in lodging her appeal on points of law, the applicant did not comply with the procedural requirements of the domestic law. This means that in the context of her remaining complaints under the Convention, she failed to exhaust properly domestic remedies (see Krpi ć , cited above, § 59). It follows that this part of the application is inadmissible under Article 35 § 1 of the Convention for non-exhaustion of domestic remedies and must be rejected pursuant to Article 35 § 4 thereof.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 6 June 2019 .

Renata Degener Krzysztof Wojtyczek Deputy Registrar President