FOURTH SECTION

DECISION

Application no . 29007/08 Primož BRITOVŠEK against Slovenia

The European Court of Human Rights ( Fourth Section), sitting on 4 July 2017 as a Committee composed of:

Vincent A. De Gaetano, President, Georges Ravarani , Marko Bošnjak , judges, and Andrea Tamietti, Deputy Section Registrar ,

Having regard to the above application lodged on 12 June 2008,

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, Mr Primož Britovšek , is a Slovenian national who was born in 1970 and lives in Selnica ob Dravi . He was represented before the Court by Mr A. Kac , a lawyer practising in Maribor, and later by Mr A. Tušek and Ms T. Zorjan Tušek , lawyers practising in Lenart v Slovenskih Goricah . The Slovenian Government (“the Government”) were represented by their Agent, Ms A. Vran , State Attorney.

A. The circumstances of the case

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

3. On 17 March 1995 the applicant was involved in a traffic accident in which another driver hit his car from behind.

4. The applicant requested compensation for the damage to his vehicle directly from the other driver ’ s insurance company. However, as they were unable to reach an agreement, the applicant initiated court proceedings against the insurance company, claiming compensation for the value of his car and statutory default interest from the date of the damage.

5 . Meanwhile, the insurance company appointed an expert, J.K., to determine the cause of the accident and the amount of damage. On 4 June 1995 he issued an opinion stating that the applicant ’ s car was no longer useable and had to be replaced. He assessed the damage to the applicant ’ s car at 3,149,799.80 Slovenian tolars (SIT). [1] As to the cause, he was of the view that the applicant had first hit a tree and had only later been hit by the other car. Taking into account the above opinion, the applicant adjusted the amount of his claim to SIT 3,149,799.80.

6. During the proceedings, the first-instance court appointed another expert, S.V. He assessed the damage sustained by both cars and confirmed both drivers ’ version of events, namely that the other driver had hit the applicant ’ s car from behind with such force that its front had hit a tree.

7 . On 14 February 2003 the court allowed the applicant ’ s claim for compensation in respect of pecuniary damage in its entirety. It also awarded the applicant full statutory default interest consisting of two components, one meant to serve as an inflationary adjustment and the other meant to serve as compensation for late payment (see paragraphs 18 and 20 below) from 18 March 1995 until the date of payment. The court noted that the model of the applicant ’ s car was no longer being manufactured and decided that it was most appropriate to use the value assessed by the expert taking into account the circumstances at the time of the accident. The court also noted that the defendant company had contested the applicant ’ s claims: relying on J.K. ’ s opinion (see paragraph 5 above), the defendant company had blamed the applicant for the accident, but had also argued that the value of his car had been substantially l ower than the value assessed by J.K. Moreover, the applicant had initially contested the assessment of the car ’ s value, but had subsequently agreed to the amount of pecuniary damage as established by J.K.

8 . The defendant company appealed against the judgment, arguing, inter alia , that the first-instance court had erred in its assessment of the facts. It pointed out, among other things, that the grounds for and amount of damage had been disputed until the judgment and argued that the applicant could only be awarded statutory default interest from the date of the first ‑ instance judgment. It relied on section 189 § 2 of the Obligations Act (in force at the time of the accident) and section 168 of the Code of Obligations (in force since 1 January 2002), which provided that compensation for damage was to be determined according to the prices applicable at the time of the court ruling, unless otherwise provided by law (see paragraphs 17-18 below). The applicant did not reply to those submissions.

9 . On 20 October 2004 the Celje Higher Court dismissed most of the defendant company ’ s complaints, including the one regarding the award of statutory default interest from the date of the damage. It considered that since the applicant had claimed compensation for pecuniary damage in relation to the situation that had existed at the time the damage had occurred, it was not possible to use the statutory provisions under which compensation would only be determined later, at the time of the judgment.

10. The defendant company lodged an appeal on points of law ( revizija ) with the Supreme Court again complaining, inter alia , that the damage should have been assessed according to the prices applicable at the time of the court ruling. Consequently, statutory default interest should have been awarded from the date of the first-instance judgment. The applicant did not reply to these submissions.

11 . On 21 September 2006 the Supreme Court issued a judgment allowing the defendant company ’ s appeal on points of law in the part regarding the award of statutory default interest. It emphasised that section 189 § 2 of the Obligations Act provided that compensation for damage had to, in principle, be determined according to the prices applicable at the time of the court ruling. No other provisions could be applied in the applicant ’ s case, since his claim could not be regarded as a “clear” monetary claim, but rather a “claim arising from unrepaired pecuniary damage”, a so-called “unclear” monetary claim, a fact which was not disputed by the parties. That requirement was part of the substantive law concerning the award of compensation and could not be freely disposed of by the parties. The lower courts had therefore erred in holding that section 189 § 2 of the Obligations Act and the case-law based on that provision did not apply because the plaintiff had set out the amount of damage according to the circumstances at the time when the damage occurred. The Supreme Court also explained that if the applicant did not seek compensation to the extent that was allowed by the substantive law, the court could not restore the situation that had existed before the damage by ignoring the substantive law and departing from the established case-law. In its view, that should be particularly true when the result of the ruling would violate the fundamental principle that an aggrieved party should not profit from compensation. In this connection, the Supreme Court pointed out that the award of statutory default interest from the occurrence of the damage until the court ruling would result in an award of SIT 18,915,166.80 [2] , which would greatly exceed the amount necessary to restore the previous situation.

12 . The Supreme Court also referred to its principled opinion of 26 June 2002 (see paragraphs 19-20 below) which, in its view, having regard to the date of the first ‑ instance judgment, should have bound the courts in the present case. Having regard to that and the legislation in force since 1 January 2002, it awarded the applicant full statutory default interest from the date of the first-instance judgment (14 February 2003 – see paragraph 7 above) until payment. For the period 1 January 2002 until 14 February 2003 it awarded the applicant interest at a decreased rate, serving as compensation for late payment, which was introduced as a general rule by the Code of Obligations which came into force on 1 January 2002 (see paragraphs 18-20 below).

13. The applicant lodged a constitutional complaint against the Supreme Court judgment.

14. On 11 February 2008 the Constitutional Court, referring to one of its decisions adopted a month earlier, rejected his complaint on the grounds that constitutional complaints solely challenging awards of statutory default interest were inadmissible.

B. Relevant domestic law and practice

1. Function of the Supreme Court

15 . Article 127 of the Constitution of the Republic of Slovenia ( Ustava Republike Slovenije , Official Gazette of the Republic of Slovenia no. 33/91 ‑ I, with subsequent amendments) defines the Supreme Court as the highest court in the State with the competence to decide on ordinary and extraordinary legal remedies and perform other functions provided for by law.

16 . The relevant parts of sections 109 and 110 of the Courts Act ( Zakon o sodiščih , Official Gazette of the Republic of Slovenia no. 94/07, with subsequent amendments) provide that the Supreme Court is responsible for developing uniform case-law. This is done in plenary sessions by adopting principled opinions regarding questions that are important for the uniform application of acts and adopting legal opinions regarding questions of case ‑ law.

2. Obligations Act

17 . The Obligations Act ( Zakon o obligacijskih razmerjih , Official Gazette of the Socialist Federative Republic of Yugoslavia no. 29/78, with subsequent amendments) provided that where it was impossible to restore the previous situation, the obligation to pay compensation fell due at the moment when the damage occurred. The compensation was, in principle, to be determined according to the prices applicable at the time of the court ruling. In determining the amount of compensation, the courts were to consider the circumstances which arose after the occurrence of the damage and award the injured party enough compensation to restore the financial situation to what it would have been had the damage not occurred.

18 . On 1 January 2002 the Obligations Act was replaced by the Code of Obligations ( Obligacijski zakonik , Official Gazette of the Republic of Slovenia no. 83/2001). The provisions relevant to the present case have not changed in substance. The Code defined the annual default interest rate unless a specific Act stipulated otherwise, which at the time was the Statutory Default Interest Rate and Base Interest Rate Act. In the relevant amendment (ZPOMZO-A, Official Gazette of the Republic of Slovenia no. 109/2001, hereinafter “Amendment A”), which entered into force on 1 January 2002, a distinction was made between the “true” default interest rate and “base” interest rate by defining the base interest rate as an annual interest rate aimed at maintaining the value of monetary obligations in the domestic currency.

3. Relevant practice

(a) Principled opinions of the Supreme Court

19 . A principled opinion ( načelno pravno mnenje ) of 29 May 1987 stated that default interest on monetary compensation for non-monetary pecuniary damage, determined according to the prices valid at the time of the delivery of the judgment, should run from the first ‑ instance judgment. On 26 June 2002, following entry into force of the Code of Obligations (see paragraph 18 above) , the Supreme Court adopted an opinion. It was of the view that statutory default interest on compensation for damage determined according to the prices applicable at the time of the court ruling (as set out in the applicable laws, see paragraphs 17-18 above) should, during the validity of Amendment A (see paragraph 18 above), start running on 1 January 2002 (the Code of Obligations ’ entry into force), unless payment became due at a later date, at the prescribed rate decreased by the base interest rate. After delivery of the judgment, the default interest rate was to be the full rate stipulated by Amendment A (see paragraph 18 above).

20 . The Supreme Court pointed out that the existing case-law, which was in line with the principled opinion of 29 May 1987, was a result of irregular inflation levels. It had not played the role of true default interest because the statutory default interest had been predominantly determined by the adjustment component. Having regard to the recently enacted distinction between “true” default interest rates and adjustment rates (see paragraph 18 in fine above), only “true” statutory default interest could be awarded. The real value of compensation could now be maintained by considering prices at the date of delivery of the judgment. “True” default interest could start running after the entry into force of the relevant legislation, provided that it had been sought by the plaintiff.

(b) Supreme Court case-law

( i ) Decisions submitted by the applicant

21 . In case no. II Ips 88/2002 of 27 November 2002, the first-instance court established the compensation having regard to the circumstances at the time the claim was lodged and awarded the plaintiff default interest from the date of the first-instance judgment. The Supreme Court reversed that decision, noting that if the lower courts had been of the opinion that the interest should be awarded from the date the damage was determined, it should have also awarded compensation reflecting the circumstances at that time for which there were no procedural obstacles since the plaintiff had not been awarded the full amount he had requested.

22 . In judgment no. II Ips 434/2002 of 5 June 2003 the Supreme Court pointed out that how the Obligations Act was applied depended on the circumstances of a particular case, including the question whether the parties agreed on which circumstances should be taken into account. It agreed with the higher court that interest should run from the date of expert valuation. It noted that the defendant had not objected to the manner in which the damage had been determined and had taken this into account when paying part of the debt. The court found that “because the defendant [had] accepted the consideration of prices [at the time of the damage] and [had taken] them into account ... it [could not] now argue that the prices from the time of delivery of the first-instance judgment should be taken into account and interest awarded from that date onwards”.

23 . In case no. II Ips 638/2004 of 29 June 2006, the damage had been assessed by an expert according to the prices applicable at the time of the accident. The Supreme Court awarded default interest from the date the claim was made, finding that the valuation of the damage had been provided on a special form immediately after the accident and that both parties had agreed to it and relied on it in the proceedings concerning the claim.

(ii) Decisions submitted by the respondent Government

24. The Government submitted several decisions of the Supreme Court, the most relevant of which are as follows.

25 . In judgments no. II Ips 282/2000 of 15 November 2000 and no. II Ips 170/2000 of 10 January 2001, the Supreme Court held that awarding interest from a date preceding the judgment would mean double adjustment. According to judgment no. II Ips 282/2000, when a court determines the amount of compensation it takes into account all the circumstances, including the passage of time, where appropriate.

26 . In judgment no. II Ips 635/2004 of 3 March 2005, the Supreme Court confirmed the judgments of the lower courts, which had awarded default interest from the date of delivery of the judgment. It also confirmed that had the interest been awarded from an earlier date, that would have meant double adjustment. The Supreme Court also noted that the courts had been consistently applying the case-law according to which interest on an “unclear” monetary claim ran from the time the damage was determined and observed that the same principle also underpinned judgment no. II Ips 88/2002 (see paragraph 21 above) on which the plaintiff had relied.

27 . In judgment no. II Ips 351/2005 of 12 April 2007, the Supreme Court noted that the unrepaired pecuniary damage gave rise to a so-called “unclear” claim and therefore awarded the default interest from the day after the first-instance judgment. It also noted that the plaintiff had had the opportunity until the end of the final hearing to amend his claim so as to reflect the circumstances at that time.

COMPLAINTS

28. The applicant complained under Article 6 of the Convention that the proceedings concerning his claim for compensation of damage had been unfair, as, without providing any reasons, the Supreme Court had departed from the established case-law regarding the date from which statutory default interest should accrue in cases of compensation for pecuniary damage and had awarded him a substantially lower amount of interest.

29. The applicant further complained under Article 13 of the Convention that the constitutional complaint in his case had been ineffective because the Constitutional Court had refused to examine it.

30. Lastly, he complained under Article 14 of the Convention that he had been treated differently to parties in comparable proceedings and that the opposing party had been treated more favourably by the courts.

THE LAW

A. Complaint under Article 6 § 1 of the Convention

31. The applicant complained under Article 6 § 1 of the Convention that the Supreme Court had decided his case contrary to its established practice and without providing any relevant reasons for doing so.

The relevant part of this provision reads as follows:

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

1. Submissions by the parties

32. The Government submitted that they could not comment on the domestic proceedings in any detail as the case file had already been destroyed. They did, however, contend that the Supreme Court decision in the applicant ’ s case had been well-reasoned and in line with established case-law. The amount of damage had been disputed between the parties. The Supreme Court had determined the compensation with regard to the circumstances at the time of the judgment and not at the time when the damage had occurred. The Supreme Court was, however, constrained by the amount sought by the applicant and could have not awarded him more than he had requested. The applicant could have formulated his claim differently and would have been entitled to higher compensation had he claimed it. Lastly, the Government argued that the Supreme Court was, under the provisions of the Courts Act, entrusted with ensuring the consistency of case-law.

33. The applicant pointed out that the Supreme Court had, in his case only and without any explanation, departed from the established case-law according to which the value of pecuniary damage assessed by an expert should be considered as giving rise to a “clear” monetary claim. Such claims were assessed with regard to the circumstances at the time the damage had been caused and default interest awarded from the time the claim had been determined by the expert. The applicant argued that contrary to the case-law, the Supreme Court had considered his pecuniary claim “unclear”. As a result, it had considered the value of the claim to have been determined at the final hearing and thereby denied him default interest with respect to the previous six years. He alleged that his claim had become “clear” when he and the defendant company had agreed to the expert valuation. He also submitted that the Supreme Court ’ s finding that the award of interest from the time of the expert evaluation would have meant double adjustment had been arbitrary and it had been absurd to expect him to alter his claim during the proceedings.

2. The Court ’ s assessment

34. The Court notes that the issue at the centre of the present case is whether the Supreme Court, which, allegedly departing from its established case-law, reversed the lower courts ’ decisions to the applicant ’ s detriment, acted in breach of the principle of legal certainty.

35 . The Court reiterates that when dealing with allegations concerning conflicting decisions of domestic courts, it must determine in the first place whether the allegedly conflicting decisions concerned identical factual situations (see Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 61, 20 October 2011). Where the facts are identical but the application of the law by a domestic court or courts differs, the Court must be guided in its examination of the issue by the following criteria: whether “profound and long-standing differences” exist in the case-law of a supreme court, whether the domestic law provides for machinery for overcoming these inconsistencies, whether that machinery has been applied and, if appropriate, to what effect (see Nejdet Şahin and Perihan Şahin , cited above, § 53).

36. Turning to the present case, the Court notes firstly that the difference between the outcome in the applicant ’ s case and the Supreme Court decisions he relied on lay in the factual situations rather than the application of substantive law. In particular, in two of the cases relied on by the applicant, the Supreme Court explicitly referred to the fact that both parties agreed with the pre-trial evaluation of the damage (see paragraphs 22 ‑ 23 above). Yet, in the applicant ’ s case, contrary to his submissions, the defendant company persistently objected to the expert valuation (see paragraphs 7-8 above). In the third case, the Supreme Court dealt with a situation which differed in that the plaintiff, unlike the applicant, sought an amount of compensation which exceeded the damage assessed by the expert and therefore the Supreme Court found no procedural obstacles to award the plaintiff compensation that reflected the circumstances at the time of the first-instance decision (see paragraph 21 above). Hence, the cases relied on by the applicant concerned different factual and legal situations. This finding would in itself be sufficient for the Court to conclude that the Supreme Court did not act contrary to the principle of legal certainty in the applicant ’ s case (see, mutatis mutandis , Uçar v. Turkey ( dec. ), no. 12960/05, 29 September 2009).

37. Nevertheless, and having regard also to the other app licable criteria (see paragraph 35 above), the Court notes that in any event it was not argued, let alone shown, tha t there were “profound and long ‑ standing differences” in the case-law of the Supreme Court.

38. Moreover, the Court notes that the Courts Act gives the Supreme Court the role to act as the machinery for overcoming inconsistencies in case-law (see paragraphs 15-16 above). In respect of substantive issues relevant for the present case, the Supreme Court performed that role by issuing the principled opinion of 26 June 2002 (see paragraphs 19-20 above) and applying the principles established therein to the present case. Therefore, the Court finds that a corrective mechanism existed in cases of profound divergences in the case-law.

39. The Court also notes that the applicant had the benefit of adversarial proceedings in which he was able to adduce evidence, and that his arguments were properly examined by the courts (see, for example and mutatis mutandis , Agroslunce , Spol . S R.O. v. The Czech Republic ( dec ). no . 9842/13, 15 September 2015).

40. In so far as the applicant complained that the Supreme Court judgment lacked reasoning, the Court notes that the former explained in detail why it was of the view that the case concerned a so-called “unclear” claim. It also explained that, accordingly, the compensation was to be awarded taking into account the prices applicable at the date of the judgment and that awarding full default interest would in such a case result in an excessive award (see paragraph 11 above). Furthermore, this reasoning was consistent with that developed by the Supreme Court in other cases (see paragraphs 21 - 23 and 25 - 27 above) and was generally in line with the principles set out in the principled opinion of 26 June 2002 (see paragraphs 12 and 19 - 20 above). Having regard to the foregoing, the Court accepts that the Supreme Court provided detailed reasoning for its judgment.

41. Therefore, the Court finds that there had been no “profound and long-standing differences” in the relevant case-law, nor that this had resulted in judicial uncertainty as to the manner in which the applicant ’ s case should be decided. It is, of course, understood that it is not for the Court to pronounce as to what the actual outcome of the applicant ’ s legal actions should have been (see, for example and mutatis mutandis , Vinčić and Others v. Serbia , nos. 44698/06 and 30 others , § 56, 1 December 2009, and Rakić and Others v. Serbia , nos. 47460/07 and 29 others, § 44, 5 October 2010).

42. Against the above background, the Court considers that the applicant ’ s complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Remaining complaints

43. The applicant complained that in his case the constitutional complaint had been ineffective and therefore in breach of Article 13 of the Convention. Moreover, he complained that he had been treated differently to parties in comparable proceedings and that the opposing party had been treated more favourably by the courts which, in his view, amounted to a violation of Article 14 of the Convention.

44. The Court has examined the applicant ’ s remaining complaints. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, it finds that they do not disclose any appearance of a violation of the Articles relied on by the applicant. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously ,

Declares the application inadmissible.

Done in English and notified in writing on 27 July 2017 .

Andrea Tamietti Vincent A. De Gaetano Deputy Registrar President

[1] . A pproximately EUR 13,150

[2] . A pproximately EUR 79 ,000