JOINT DISSENTING OPINION OF JUDGES LEMMENS, GRIÅ¢CO AND RAVARANI

1. To our regret, we cannot agree with the majority ’ s finding that there has been a violation of Article 6 § 1 the Convention in the present case.

2. According to the majority, the Supreme Court, by declaring the applicant ’ s cassation appeal (appeal on points of law) inadmissible, violated her right of access to that court.

The first and, in fact, only question before the Supreme Court was whether the judgment of the County Court was open to cassation. The answer to that question would depend, in our view, on the intrinsic nature of that judgment, and not on the characterisation possibly given to it by the County Court itself. It therefore seems perfectly normal to us that the Supreme Court examined whether the claim had a value higher or lower than the statutory threshold of HRK 100,000, without in any way being bound by the County Court ’ s (implicit) determination in that regard.

Moreover, the characterisation given by the Supreme Court does not seem to be arbitrary or manifestly unreasonable, having regard to the wording of section 40 of the Civil Procedure Act. The Supreme Court applied section 40(2), which refers to the value indicated by the claimant in the document instituting the proceedings. It found that the conditions for changing that value, set out in section 40(3), had not been fulfilled, and thus refused to base its determination of the value of the subject matter of the dispute on the higher value indicated by M.Z. at the hearing of 6 April 2005. There is, in our opinion, even less reason to criticise the Supreme Court ’ s reasoning as it seems to be in line with its long-standing case law (see the cases mentioned in paragraph 22 of the judgment). We also fail to see how the Supreme Court ’ s interpretation can be regarded as “excessively formalistic” (see paragraph 40 of the judgment).

It is not for our Court to interpret domestic law. Apart from situations where the interpretation of domestic law by the domestic courts is arbitrary or manifestly unreasonable, the Court should limit itself, as is stated in paragraph 36 of the judgment, to verifying whether the effects of the interpretation adopted are compatible with the Convention. That means, in our case, that the Court should examine whether the inadmissibility of the appeal to the Supreme Court is compatible with the right of access to a court. We find it difficult to accept that the limitation to claims above HRK 100,000 (approximately EUR 13,000) would not pursue a legitimate aim or would be disproportionate. On this point, we would agree with the Government, which stated that one should look at the proceedings as a whole and, in particular, at the fact that the applicant had been able to have her claim examined, in fact and in law, at two levels of jurisdiction (see paragraph 30 of the judgment).

In sum, we consider that the restriction of the applicant ’ s right of access to the Supreme Court did not violate Article 6 § 1 of the Convention.

3. In order to arrive at a different conclusion, the majority argue that the Supreme Court “acted contrary to the general principle of procedural fairness inherent in Article 6 § 1 of the Convention”. According to the majority, the Supreme Court placed “the burden of errors made by the lower courts at the expense of the applicant” (paragraph 40 of the judgment).

The notion of a “general principle of procedural fairness” has not, to our knowledge, hitherto appeared in the case-law of the Court. It is far from clear to us whether this principle, “inherent” in Article 6 § 1, is in any way different from the right to a fair hearing, explicitly guaranteed by that Article. Neither do we see what its exact relationship is to the right of access to a court, the only right of Article 6 § 1 at issue in the complaint.

Be that as it may, we do not see how the Supreme Court can be accused of placing “the burden of errors made by the lower courts” on the applicant.

The majority refer to three judgments in which the Court has held that the risk of any mistake made by a State authority must be borne by the State, and errors must not be remedied at the expense of the individual concerned. These judgments concern a decision to declare an application inadmissible as being served on the respondent party out of time, even though it had been the court bailiff ’ s responsibility to effect service ( Platakou v. Greece , no. 38460/97, § 39, ECHR 2001 ‑ I), a decision to declare a request by a party to a court inadmissible as being lodged out of time, even though the delay had mainly resulted from the conduct of another court in transferring the request to the competent court ( Freitag v. Germany , no. 71440/01, § 41, 19 July 2007), a court ’ s failure to properly serve an order, so that it became final without ever reaching the applicant, and a decision to declare an appeal against another order inadmissible as being lodged out of time, even though the court had made a mistake regarding the date on which the appeal had been lodged ( Å imecki v. Croatia , no. 15253/10, § 46, 30 April 2014). In all those cases the applicants were procedurally penalised for errors made by organs of the State, for which they should have borne no responsibility whatsoever.

The present case is, in our opinion, of a very different nature. If the applicant had to pay the costs of the proceedings before the lower courts based on HRK 105,000 being the value of the subject matter of the dispute, it is because her predecessor, M.Z., had in dicated during the hearing of 6 April 2005 that that was the correct value. It is true that domestic law did not allow M.Z. to increase the value of the subject matter of the dispute in the course of the proceedings, that the lower courts apparently did not declare M.Z. ’ s conduct unlawful and instead followed his approach, and that it was only the Supreme Court that noticed that M.Z. had acted in violation of section 40 of the Civil Procedure Act, However, that does not take away the fact that the initial error in the case was committed by the applicant ’ s predecessor, not a State organ.

The fact that the lower courts did not correct the error made by M.Z. did in our opinion not create an “expectation”, protected under Article 6 § 1 of the Convention, that his appeal to the Supreme Court would be declared admissible (compare paragraph 39 of the judgment).

4. In hindsight, one could say that the applicant was unable to take advantage of the error made by her predecessor (as her appeal to the Supreme Court was declared inadmissible on the basis of the initial value of the subject matter of the dispute), even though she had to undergo the disadvantageous consequences of it (by having to pay the costs of the proceedings at both levels of jurisdiction on the basis of the increased value of the subject matter of the dispute).

Even if the applicant, understandably, is unhappy with such an outcome, we do not consider that that makes the limitation of the right to appeal to the Supreme Court incompatible with Article 6 § 1 of the Convention.