JOINT DISSENTING OPINION OF JUDGES

KARAKAŞ, VUČINIĆ AND TURKOVIĆ

1. We do not share the view of the majority that there has been no violation of Article 6 § 1 of the Convention as regards the applicant ’ s access to the Supreme Court.

2. In the present case the Supreme Court, allegedly contrary to its own established practice according to which a civil action for recognition of ownership and the issuance of clausula intabulandi was considered as one single claim, treated the applicant ’ s civil action as two separate claims. For that reason, the Supreme Court divided the declared value of the dispute in half and held that, on the basis of such a calculation, the amount of the dispute in the applicant ’ s case did not reach the necessary rationae valoris threshold (100,000 kunas) for an appeal on points of law to be admissible (see paragraph 42 of the judgment). The applicant complained that by acting in this way the Supreme Court had deprived her of access to its jurisdiction in an arbitrary manner (see paragraph 34 of the judgment), and had been motivated solely by a desire for an ‘ efficient ’ , that is, ‘ laconic ’ disposal of cases (see the applicant ’ s application, page 3, and her observations, page 2). She also argued that it was manifestly unreasonable to treat a civil action for recognition of ownership and the issuance of clausula intabulandi as consisting of two separate claims (see paragraph 34 of the judgment).

3. The majority addressed the applicant ’ s complaint only in part and in a cursory way. It failed to address the second issue. It also failed to ascertain whether the effects of the Supreme Court ’ s interpretation of domestic law were compatible with the Convention, that is, whether the Supreme Court ’ s decision in the present case, declaring the applicant ’ s appeal on points of law inadmissible, in itself unduly restricted the applicant ’ s right of access to a court, which was actually the core of the applicant ’ s complaint (see, inter alia , Zubac v. Croatia [GC], no. 40160/12, § 81, 5 April 2018). It is long ‑ e stablished practice that, when finding a violation, the Court may choose to address only some of the issues raised by the applicant. It may dismiss other issues under the formula that “ it is not necessary to examine whether there has been a violation of ...”. However, the same is not true when the Court does not find a violation in respect of a particular issue. In holding that there has been no violation of the Convention in a particular case the Court is then obliged to address all the issues raised by the applicant. The majority failed to do so in the present case.

4. To put things in perspective, it must be recalled that in the present case the rationae valoris restriction imposed on the applicant was based not only on legislation, but also on case-law which, in the Government ’ s claim, was long-standing (see paragraph 39 of the judgment) [2] . However, until 1 February 2010 the Supreme Court, in cases similar to that of the applicant, relying on section 37(2) of the Civil Procedure Act, considered civil actions for recognition of ownership and the issuance of a clausula intabulandi as a single claim (see paragraphs 19 and 43 of the judgment). In decision no. 807/08-2 of 1 February 2010, the Supreme Court departed – apparently for the first time – from its previous case-law, considering claims for recognition of ownership and the issuance of a clausula intabulandi as two separate claims (see paragraph 20 of the judgment). Less than three months later, in decision no. 339/08-2 of 29 April 2010, the Supreme Court again considered claims for recognition of ownership and the issuance of a clausula intabulandi as one claim (see paragraph 19 of the judgment). Then, on 10 May 2010, in decision no. Rev-1021/08-2, the Supreme Court reverted to holding that claims for recognition of ownership and the issuance of a clausula intabulandi were to be dealt with as two separate claims (see paragraph 20 of the judgment). After that decision, according to the case-law submitted by the Government, the Supreme Court continued to follow this approach (see paragraph 43 of the judgment). However, in none of these judgments did the Supreme Court announce and/or substantiate and provide reasons for the changes in its approach.

5. Taking the above development in the domestic jurisprudence into consideration, we agree with the majority that the situation in the present case involves a reversal by the Supreme Court of its case-law (see paragraph 44 of the judgment). However, it must not be overlooked that this jurisprudential development was not clear-cut and took place over a certain period (at least three and a half months), during which time the applicant ’ s case was pending before the Supreme Court. During that time, only two decisions in line with the outcome of the applicant ’ s case were apparently taken, and between them a conflicting decision had also been adopted. This reveals a chaotic approach by the Supreme Court in interpreting the requirements, laid down by law, for establishing the value of a dispute and, accordingly, the admissibility of an appeal on points of law. Consequently, it is not possible to suggest, as Government have, that the case-law applied in the present case was long-established at the relevant time (see paragraph 39 of the judgment). It is also evident that it is not always feasible to make a clear distinction between divergent approaches to similar legal and factual circumstances and a reversal of case-law.

6. The Court has developed a relatively extensive case-law concerning divergent approaches in respect of the same legal issue raised by similar factual circumstances, that is, conflicting court decisions, and has thus had an opportunity to pronounce judgment on the conditions in which conflicting decisions of highest domestic courts - either within a single court, or by different courts ruling at last instance or by two types of court which are called upon to give judgment, in parallel, on the same legal issue - were in breach of the fair-trial requirements enshrined in Article 6 § 1 of the Convention (for a detailed overview of the relevant case-law, see Nejdet Şahin and Perihan Şahin v. Turkey , no.13279/05, §§ 49-95, 20 October 2011). However, the Court ’ s case-law on the conditions in which a reversal of case-law amounts to a breach of access to a court and/or the fair-trial requirements enshrined in Article 6 § 1 is still rudimentary and in statu nascendi.

7. The majority in the present case failed to address even this limited case-law. It has reduced the case to a mere statement that “in the absence of arbitrariness and where not manifestly unreasonable, a reversal of case-law falls within the discretionary powers of the domestic courts, notably in countries which have a system of written law (as in Croatia) and which are not, in theory, bound by precedent” (see paragraph 44 of the judgment), referring by way of comparison to Borg v. Malta (no. 37537/13, § 111, 12 January 2016) and Petro-M SRL and Rinax-TVR SRL v. Moldova ((dec.), no. 44787/05, §§ 15- 21, 28 February 2017). The majority completely disregarded the fact that neither of these two cases dealt with possible undermining of the principle of legal certainty in the context of the right of effective access to a court. Borg (cited above) dealt with the Constitutional Court ’ s reversal of its interpretation of the European Court of Human Rights ’ case-law, which, according to Dimech v. Malta (no. 34373/13, § 68, 3 April 2015), relied upon by Borg , cannot by itself raise an issue of legal certainty at the domestic level. Petro-M SRL and Rinax-TVR SRL (cited above) dealt with the issue of lawfulness under Article 1 of Protocol No. 1 to the Convention, relying on Borg. However, the Moldovan case should be contrasted with Brezovec v. Croatia (no. 13488/07, §§ 59-68, 29 March 2011) and Saghinadze and Others v. Georgia (no. 18768/05 , §§ 116-118, 27 May 2010), in which the Court took a different approach to a similar issue, finding a violation of Article 1 of Protocol No. 1 on the grounds of a lack of foreseeability. There, the Court found that rulings in which no reasonable explanation is given for the di vergence from the existing case ‑ law are unforeseeable and smack of arbitrariness, and are accordingly unlawful. Thus, the jurisprudential value of the above two cases, relied upon by the majority as two exclusive authorities for resolution of the present case, is, as a minimum, doubtful.

8. Furthermore, the majority failed to substantiate its finding, and did not even attempt to do so, except for stating that “having examined the circumstances, the Court finds there has been no violation of Article 6 § 1 of the Convention” (see paragraph 45 of the judgment). Lastly, the majority apparently considered in the abstract that a reversal of case-law, as opposed to divergent approaches, that is, conflicting decisions, cannot create jurisprudential uncertainty (see paragraph 44 of the judgment), although quite the opposite transpires from the facts of the present case itself.

9. At this point it is important to reiterate that courts may depart from their well-established case-law, provided they give good and cogent reasons for doing so (see Hoare v. the United Kingdom (dec.), no. 16261/08, § 54, 12 April 2011). In fact, a failure to maintain a dynamic and evaluative approach would risk hindering reform or improvement which would be contrary to the proper administration of justice (see Atanasovski v. “the former Yugoslav Republic of Macedonia” , no. 36815/03 , § 38, 14 January 2010). The Court has pointed out that there is no acquired right to consistency of case-law (see Unédic v. France , no. 20153/04 , § 74, 18 December 2008). However, when departing from established case-law, in order to respect the principle of legal certainty as required by the rule of law (see Brumărescu v. Romania [GC], no. 28342/95 , § 61, ECHR 1999 ‑ VII) , courts must clearly reason their decisions to the extent to allow future claimants to reasonably foresee how the new legal developments may affect their case (see Tripcovici v. Montenegro , no. 80104/13, § 42, 7 November 2017 ; C.R. v. the United Kingdom , no. 20190/92, § 34, 22 November 1995; Gorou v. Greece (no. 2) [GC], no. 12686/03, § 38, 20 March 2009; and Atanasovski , cited above, § 38). This, inter alia , guarantees a certain stability in legal situations and contributes to public confidence in the courts (see, mutatis mutandis , Åžtefănică and Others v. Romania , no. 38155/02, § 38, 2 November 2011).

10. The existence of an established judicial practice should be taken into account in assessing the extent of the reasoning to be given in a case (see, mutatis mutandis , Gorou v. Greece (no. 2), cited above, § 38, and Atanasovski , cited above, § 38). In this connection, one must note that in none of the decisions listed in paragraph 20 of the judgment did the Supreme Court give any explanation of the basis on which it had reached the conclusion that claims for recognition of ownership and the issuance of a clausula intabulandi stemmed from either different or identical legal and factual grounds. More specifically, it did not provide reasons for the departure from its earlier case-law (compare with Hoare , cited above, § 56, and Atanasovski , cited above, § 38). The Supreme Court even failed to declare openly that it was departing from its established case-law. In this sense, the present case must be differentiated from the Hoare v. the United Kingdom and C.R. v. the United Kingdom, specifically because in those cases the legal development which affected the claimants “had reached a stage where judicial recognition of that development was reasonably foreseeable” (see Hoare , cited above, § 54). Additionally, such foreseeability stemmed from clear judicial reasoning, since “... courts may depart from their well-established case-law provided they give good and cogent reasons for doing so” (ibid.). The lack of reasoning in the Supreme Court ’ s decision impaired the principle of legal certainty in the present case. In such circumstances, the applicant could not reasonably have been expected not only to predict the change in case-law, but actually to recognise that a reversal of case-law had already taken place and to adjust her behaviour accordingly.

11. Save in the event of evident arbitrariness, it is not the Court ’ s role to question the interpretation of the domestic law by the national courts (see, for example, Ādamsons v. Latvia , no. 3669/03 , § 118, 24 June 2008). However, the role of the Court is to verify whether the effects of such interpretation are compatible with the Convention (see, for example, Zubac , cited above, § 81). That being so, as we have already emphasised, the majority failed to ascertain whether the Supreme Court ’ s decision in the present case – declaring the applicant ’ s appeal on points of law inadmissible and thus in itself decisive in terms of the applicant ’ s right of access to the Supreme Court – unduly restricted her ri ght of access to a court (see § 3 above).

12. The existence of a limitation ratione valoris on access to a cassation court is not incompatible per se with the Convention. What the Court needed to ascertain in the present case was whether the nature of the limitation in question and/or the manner in which it had been applied were compatible with the Convention (see, mutatis mutandis , Vrbica v. Croatia , no. 32540/05 , § 66, 1 April 2010). This means, in particular, that the Court had to satisfy itself that the application of such a limitation could be regarded as foreseeable for the applicant, having regard to the relevant legislation and case-law and the particular circumstances of the case (see Osu v. Italy , no. 36534/97 , § 35, 11 July 2002; Vrbica , cited above, § 72; and Majski v. Croatia (no. 2) , no. 16924/08 , § 69, 19 July 2011). In a recent Grand Chamber judgment, the Court emphasised that it attaches particular weight to whether the procedure to be followed for an appeal on points of law could be regarded as foreseeable from the point of view of the litigant. In order to satisfy foreseeability criterion with regard to a restriction on access to a superior court, a coherent domestic judicial practice and consistent application of that practice are important (see Zubac , cited above, §§ 85, 87-89). As we have demonstrated in § 5 above, the law was not being applied at the material time in a manner that could ensure foreseeability for the applicant. The chaotic approach taken by the Supreme Court, without any reasonable explanation as described above, prevented the applicant from foreseeing whether or not she fulfilled the statutory requirements for lodging an appeal on points of law. The restriction on the applicant ’ s right of access to the Supreme Court thus fell short of the requirements set out by the Grand Chamber in its recent case-law.

13. The Court has already held on a number of occasions that the right to a fair trial, as guaranteed by Article 6 § 1 of the Convention, must be construed in the light of the rule of law, one of the fundamental aspects of which is the principle of legal certainty, which requires that all litigants should have an effective judicial remedy enabling them to assert their civil rights (see Běleš and Others v. the Czech Republic , no. 47273/99, § 49, 12 February 2003).

14. In the present case the applicant was placed in an ambiguous position (see §§ 4 and 5 above), in which she could not know with reasonable certainty which legal remedy was an effective one – an appeal on points of law or a constitutional complaint. The Court has consistently held that, before lodging complaints in respect of Croatia, in order to comply with the principle of subsidiarity applicants are in principle required to afford the Croatian Constitutional Court, as the highest court in Croatia, the opportunity to remedy their situation (see Orlić , cited above, § 46; Čamovski v. Croatia , no. 38280/10, § 27, 23 October 2012; Bajić v. Croatia , no. 41108/10, § 66, 13 November 2012; Remetin v. Croatia , no. 29525/10, § 81, 11 December 2012; Tarbuk v. Croatia , no. 31360/10, § 29, 11 December 2012; Damjanac v. Croatia , no. 52943/10, § 70, 24 October 2013; and Šimecki v. Croatia , no. 15253/10, § 29, 30 April 2014).

15. However, a constitutional complaint may be lodged only when all previous remedies have been properly exhausted, including in civil proceedings an appeal on points of law to the Supreme Court, where such an appeal is provided for under the relevant rules on civil procedure. Therefore, the applicant was faced with a situation where the only course of action which would ensure that she complied with the rule of exhaustion of domestic remedies was to lodge, at the same time, an appeal on points of law with the Supreme Court and a constitutional complaint. However, such a course of action cannot be regarded as compatible with the principle of legal certainty (see, for example, Běleš and Others , cited above, § 64).

16. In the light of the above considerations, we are unable to agree with the majority. The guarantees emanating from Article 6, which are intrinsically connected with respect for the rule of law, require domestic courts to carry out legal developments in a manner which is well-reasoned, allowing claimants to keep up with changes. Therefore, we believe that the Supreme Court ’ s decision declaring the applicant ’ s appeal on points of law inadmissible, which failed to indicate a reversal of the relevant case-law and thus lacked proper reasoning, did not comply with the principle of legal certainty. Such a situation impaired the very essence of the applicant ’ s right of access to a court and/or the right to a fair trial as secured by Article 6 § 1 of the Convention (compare with Petko Petkov v. Bulgaria , no. 2834/06, §§ 33-34, 19 February 2013, and District Union of Ilfov Cooperative Society v. Romania , no. 16554/06, §§ 49 and 50, 16 September 2014 ). Accordingly, unlike the majority, we believe that there has been a violation of Article 6 § 1 of the Convention in this case.

17. By way of conclusion, we should like to emphasise that at a time when many courts at national and international level are facing case overload and are heavily overburdened and thus tempted to close their gates further through a restrictive interpretation of legislation or their internal rules governing the admissibility of cases, it is of the utmost importance that any reversal of case-law which directly or indirectly results in limiting the right of access to a court should be carried out in a transparent manner and be duly reasoned, in order to ensure conformity with Article-6 guarantees and to enable litigants to make decisions on taking legal action with a sufficient degree of foreseeability and on the basis of clear criteria.

[1] . The domestic case-law mentioned in paragraph 19 of the judgment is largely the result of research undertaken by our Court. In my opinion, in the light of the arguments invoked by the applicant, the case did not call for such research.

[2] . The Government submitt ed a number of Supreme Court judgments in support of their argument . However, all but one of th ese judgments were delivered after the judgment in the applicant ’ s case. Thus, in order to verify the parties ’ claims the Court itself examined the Supreme Court ’ s practice, available on its official web page.