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DOBRIC v. SERBIA - 2611/07 [2011] ECHR 982 (21 June 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/982.html
Cite as:
[2011] ECHR 982
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SECOND
SECTION
CASE OF DOBRIĆ v. SERBIA
(Applications
nos. 2611/07 and 15276/07)
JUDGMENT
STRASBOURG
21 June 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Dobrić v.
Serbia,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
David Thór Björgvinsson,
Dragoljub
Popović,
Giorgio Malinverni,
András
Sajó,
Guido Raimondi,
Paulo Pinto de
Albuquerque, judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 31 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in two applications (nos. 2611/07 and 15276/07)
against Serbia lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by two Serbian nationals, Mr
Zdravko Dobrić (”the first applicant”) and Mr
Miladin Dobrić (“the second applicant”), on 8
January 2007 and 3 April 2007 respectively.
The
first applicant was represented by Mr N. Jankulov, a lawyer
practising in Novi Sad. The second applicant was represented by Mr D.
Ukropina, also a lawyer practising in Novi Sad. The Serbian
Government (“the Government”) were represented by their
Agent, Mr S. Carić.
The
applicants alleged that they had been denied access to the Supreme
Court in a situation where, according to the relevant domestic
legislation, they had clearly had the right to file an appeal on
points of law therewith.
On
5 May 2010 the President of the Second Section decided to give notice
of the applications to the Government. It was also decided to rule on
the admissibility and merits of the applications at the same time
(former Article 29 § 3).
THE FACTS
The
applicants were born in 1932 and 1934 respectively. The first
applicant lives in Mala Moštanica,
Serbia, while the second applicant lives in Clamart, France.
I. THE CIRCUMSTANCES OF THE CASE
The
facts of the case, as submitted by the parties, may be summarised as
follows.
On
30 January 1986 S.K. filed a real estate claim against the applicants
with the Municipal Court in Novi Sad. The value of the dispute
(vrednost spora) stated by the plaintiff was 4,000,000 “old
dinars”.
Following
a remittal and a redenomination of the Serbian currency, on 14
December 1998 the Municipal Court ruled in favour of the applicants
and noted that the value of the dispute was now 50,000 “new
dinars”.
Following
two remittals, on 28 September 2001 and 17 June 2004 respectively,
the Municipal Court twice ruled in favour of the applicants, and on
both occasions reaffirmed that the value of the dispute was 50,000
new dinars.
On
13 January 2005 the District Court accepted the appeal filed by the
plaintiff and, in so doing, ruled partly in his favour.
The
applicants, who were represented by legal counsel, thereafter filed
an appeal on points of law (revizija).
On
14 June 2006 the Supreme Court, however, rejected this appeal,
stating that the applicants were not entitled to lodge it given that
the value of the dispute in question was below 15,000 new dinars, the
applicable statutory threshold. In particular, the court acknowledged
that the parties had agreed, on 19 November 1998, that the value of
the dispute should be 50,000 new dinars, but observed that there was
no separate Municipal Court’s decision to this effect in the
case file. Therefore, the relevant amount was the 4,000,000 old
dinars, as stated in the plaintiff’s original claim, which was
clearly less than the 15,000 new dinars threshold under the relevant
civil procedure rules (see paragraphs 20 and 21 below). Lastly,
implicitly relying on its Opinion of 22 May 2001, the Supreme Court
noted that the Government’s Decree of 24 January 1994 had
provided that until 22 July 1994 both old and new dinars would
be valid legal tender based on the ratio that one new dinar was worth
twelve thousand old dinars. The “plaintiff” himself,
however, had “not amended the value of the dispute in new
dinars” by 22 July 1994 (see paragraph 19 below).
The
applicants were served with the Supreme Court’s decision on
13 October 2006.
II. RELEVANT DOMESTIC LAW AND JURISPRUDENCE
A. The Civil Procedure Act 1977 (Zakon o parničnom
postupku; published in the Official Gazette of the Socialist
Federal Republic of Yugoslavia – OG SFRY – nos. 4/77,
36/77, 6/80, 36/80, 43/82, 72/82, 69/82, 58/84, 74/87, 57/89, 20/90,
27/90, 35/91 and the Official Gazette of the Federal Republic of
Yugoslavia - OG FRY – nos. 27/92, 31/93, 24/94, 12/98 and
15/98)
Article
382 § 3 provides that an appeal on points of law (revizija)
is “not admissible” in pecuniary lawsuits where the value
of the dispute, as indicated by the plaintiff in his or her claim,
does “not exceed 15,000 ... [new] dinars”, this threshold
having been introduced in 1998.
However,
Article 40 provides, inter alia, that, should the value of the
dispute stated by the plaintiff be “obviously too high or too
low”, the court itself shall resolve the issue. This must be
done, at the latest, at the preliminary hearing or, if one is not
held, before the beginning of the main hearing at first instance.
Articles
190 §§ 1 and 2 and 191 § 1 provide that a civil claim
may, with the consent of the parties, be amended/increased until the
conclusion of the main hearing at first instance.
Article
392 provides, inter alia, that the Supreme Court shall reject
any and all appeals on points of law which it deems inadmissible.
Lastly,
Articles 383 and 394-397 provide, inter alia, that the Supreme
Court shall, should it accept an appeal on points of law lodged by
one of the parties concerned, have the power to overturn the impugned
judgment or quash it and order a retrial before the lower courts.
B. Opinion of the Supreme Court’s Civil Division
of 22 May 2001 concerning the procedural ramifications of the
redenomination of the Serbian currency
The
Supreme Court opined that where an appeal on points of law would have
been available according to the rules in force at the time when the
civil claim had been brought, but where, following the
redenomination, the value of the dispute in question clearly remained
below the threshold of 15,000 new dinars, an appeal on points of law
could not be filed. If the parties, however, agreed to amend the
value of their dispute so as to raise it above the said threshold by
22 July 1994, at the latest, an appeal on points of law would be
admissible (Pravno shvatanje utvrđeno na sednici Građanskog
odeljenja Vrhovnog suda Srbije od 22. maja 2001. godine,
published in the Supreme Court’s Bulletin no. 1/02).
C. The Amendments to the Civil Procedure Act of 2002
(published in OG FRY no. 3/02)
Articles
16 § 3 increased the minimum requirement for an appeal on points
of law from 15,000 new dinars to 300,000 new dinars, but specified
that, in respect of all suits brought earlier, the applicable amount
would still be 15,000 new dinars.
D. The Civil Procedure Act 2004 (Zakon o parničnom
postupku; published in the Official Gazette of the Republic of
Serbia – OG RS – no. 125/04)
The
Civil Procedure Act 2004 entered into force on 23 February 2005,
thereby repealing the Civil Procedure Act 1977. Article 491 § 4
of the former, however, provides that in all cases which were brought
before that date the applicable legislation, as regards an appeal on
points of law, shall be the legislation which was in force prior to
23 February 2005.
E. The Courts Organisation Act (Zakon o uređenju
sudova; published in OG RS nos. 63/01, 42/02, 27/03, 29/04, 101/05
and 46/06)
Article
40 §§ 2 and 3 provides, inter alia, that a meeting
of a division (sednica odeljenja) of the Supreme Court shall
be held if there is an issue as regards the consistency of its
case-law. Any opinions (pravna shvatanja) adopted thereupon
shall be binding for all panels (veća) of the division in
question.
THE LAW
I. JOINDER OF THE APPLICATIONS
The
Court considers that, in accordance with Rule 42 § 1 of the
Rules of Court, the applications should be joined, given their
similar factual and legal background.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicants complained, under Article 6 § 1 of the Convention and
Article 1 of Protocol No. 1 thereto, that they had been denied access
to the Supreme Court in the determination of their civil rights and
obligations.
Being the master of the characterisation to be given
in law to the facts of any case before it, the Court considers that
the above complaints fall to be examined under Articles 6 § 1 of
the Convention only (see Akdeniz v. Turkey, no. 25165/94,
§ 88, 31 May 2005, and García Manibardo v. Spain,
no. 38695/97, § 36, ECHR 2000 II).
This
provision, in its relevant part, reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a ... hearing ... by [a] ...
tribunal established by law ...”
A. As regards the Government’s request for a
strike out
The
Government maintained that the second applicant’s written
pleadings following the communication of his case had been belated,
which is why his application should be struck out in accordance with
Article 37 § 1 of the Convention.
The
Court notes that it may indeed, on the basis of the said provision
and at any stage of the proceedings decide to “strike an
application out of its list of cases where the circumstances lead to
the conclusion that: (a) the applicant does not intend to pursue
his application; (b) the matter has been resolved; or (c) for
any other reason established by the Court, it is no longer justified
to continue the examination of the application”. The Court,
however, “shall continue the examination of the application if
respect for human rights as defined in the Convention and the
Protocols thereto so requires”.
It
is further recalled that each party is responsible for ensuring that
written pleadings are delivered to the Court’s Registry in
time. A time-limit may be extended on a party’s request, but a
failure to comply therewith may result in the exclusion of the
pleading from the case file. For the purposes of observing the
time-limit, the material date is the certified date of dispatch of
the document or, if there is none, the actual date of receipt at the
Registry (see Rule 38 of the Rules of Court of 1 June 2010 and
paragraphs 18, 19 and 23 of the Practice Direction on Written
Pleadings issued by the President of the Court on Court on 1 November
2003, as amended on 10 December 2007).
Turning
to the present case, it is noted that on 22 November 2010 the
President of the Section agreed, upon the second applicant’s
request, to extend the time allowed for submission of his
observations on the admissibility and merits of his application, as
well as his claims for just satisfaction under Article 41 of the
Convention. The new time-limit was accordingly 22 December 2010. The
second applicant complied with this instruction as regards the
Serbian language version of his observations which were sent to the
Registry by fax and surface mail on 22 December 2010 (the latter
being confirmed by a certified date of dispatch on the envelope). The
English language translation of the second applicant’s
observations, however, was sent to the Registry by fax and surface
mail on 17 and 18 January 2011 respectively.
In
view of the above, the Court is of the opinion that it would be
formalistic to exclude the second applicant’s impugned written
pleadings from the case file as belated, whilst the entire situation
is certainly outside of the scope of Article 37 § 1 (a) and (b)
of the Convention and cannot either warrant the conclusion that “it
is no longer justified to continue the examination of the
application” under Article 37 § 1 (c). The Government’s
objection must therefore be dismissed.
B. Admissibility
1. Compatibility ratione temporis
In
the Court’s view, although the Government have not raised an
objection as to the Court’s competence ratione temporis,
this issue nevertheless calls for its consideration (see, mutatis
mutandis, Blečić v. Croatia [GC], no. 59532/00,
§ 67, ECHR 2006 III).
The Court observes in this regard that, in accordance
with the generally accepted principles of international law, a
Contracting Party is only bound by the Convention in respect of
events occurring after its entry into force. It further notes that
Serbia ratified the Convention on 3 March 2004 and that some of the
events referred to in the applications in the present case had indeed
taken place before that date. The Court shall therefore have
jurisdiction ratione temporis to examine the applicants’
complaints in so far as they concern events as of 3 March 2004. It
shall nevertheless, for reasons of context, also take into account
any and all relevant events prior to that date (see, mutatis
mutandis, Salontaji-Drobnjak v. Serbia, no. 36500/05, §
110, 13 October 2009).
2. The six-month time-limit
The
Government submitted that the second applicant’s complaint was
filed out of time, i.e. more than six months after 13 October 2006
which was when he had received the Supreme Court’s decision.
The
second applicant maintained that he had complied with the time-limit
provided for in Article 35 § 1 of the Convention.
Article
35 § 1 of the Convention, in so far as
relevant, provides that “[t]he Court may only deal with
the matter ... within a period of six months from the date on which
the final decision was taken.”
The
Court reiterates that according to its case-law the object and
purpose of Article 35 § 1 of the Convention are best served by
counting the six-month period as running from the date of service of
the written judgment in cases where the applicant is entitled,
pursuant to domestic law, to be served ex officio with a
written copy of the final domestic decision, irrespective of whether
that judgment was previously delivered orally (see Worm v.
Austria, judgment of 29 August 1997, § 33, Reports of
Judgments and Decisions 1997-V; and Venkadajalasarma v. the
Netherlands (dec.), no. 58510/00, 9 July 2002).
In
accordance with the established practice of the Convention organs,
the Court normally considers the date of the introduction of an
application to be the date of the first communication indicating an
intention to lodge an application and giving some indication as to
the nature of the application. Such first communication will
interrupt the running of the six-month period.
In
the absence of explanations of an interval, of at least several days,
between the date on which the initial submission was written and the
date on which it was posted, the latter is to be considered the date
of introduction of an application (see Arslan v. Turkey (dec.),
no. 36747/02, decision of 21 November 2002, ECHR 2002 X
(extracts)).
The
purpose of the six-month rule is to promote security of the law, to
ensure that cases raising Convention issues are dealt with within a
reasonable time and to protect the authorities and other persons
concerned from being under uncertainty for a prolonged period of
time. As the Court has held, it would be contrary to the spirit and
aim of the six-month rule if, by any initial communication, an
application could set into motion the proceedings under the
Convention and then remain inactive for an unexplained and unlimited
length of time. Applicants must therefore pursue their applications
with reasonable expedition, after any initial introductory contact
(see P.M. v. the United Kingdom
(dec.), no. 6638/03, 24 August
2004).
Turning
to the present case, it is noted that by letter of 30 March 2007,
which was posted on 3 April 2007 (as confirmed by a certified
date of dispatch on its envelope), the second applicant expressed his
wish to lodge an application with the Court. In so doing, inter
alia, he specifically complained about the Supreme Court’s
refusal to consider his appeal on points of law and referred, by
title as well as registration number, to the first applicant’s
case which concerned the same issue and had already been pending
before the Court.
On
16 May 2007 the Registry confirmed receipt of the second applicant’s
letter and asked him to send the completed application form and any
necessary supplementary documents to the Court as soon as possible
and at the latest “within six months of the date of the present
letter”.
As
confirmed by a certified date of dispatch on its envelope, on
4 October 2007 the second applicant posted his duly completed
application form to the Registry. The latter was dated 3 October 2007
and accompanied by a separate submission of 3 September 2007 wherein
the applicant, inter alia, informed the Registry that the
domestic judiciary was already aware of the first applicant’s
case before the Court.
On
26 October 2007 the Registry confirmed receipt of the second
applicant’s correspondence and formally registered his case.
In
view of the above, the Court notes that following his initial
communication the applicant was not “inactive for an
unexplained and unlimited length of time”.
On the contrary, he complied with the Registry’s instructions
of 16 May 2007, which is why 3 April 2007 should be considered as the
date of introduction of his complaint. Since the six-month
period started to run on 13 October 2006, the Court concludes that
the second applicant’s complaint is not out of time for the
purposes of Article 35 § 1 of the Convention.
The
Government objection in this respect must therefore be rejected, the
applicable Rules of Court, as well as the relevant
provisions contained in the Practice Direction on the
Institution of Proceedings, being those of 1 July 2006 and 1
November 2003 respectively (in particular, Rule 47 § 5 of the
former and paragraphs 1 and 4 of the latter). The Government’s
reference to some of the Court’s more recent jurisprudence
applying subsequent amendments to the said regulations is thus also
clearly distinguishable (see, for example, Kemevuako v. the
Netherlands (dec.), no. 65938/09, 1 June 2010).
3. Conclusion
The
Court notes that the applicants’ complaints are not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that they are not inadmissible on any
other ground. They must therefore be declared admissible.
C. Merits
1. The parties’ submissions
The
applicants reaffirmed their complaints. They further noted that the
Supreme Court’s Opinion of 22 May 2001 was of no relevance in
their case since they, together with the plaintiff, had already
specified the new value of the dispute on 19 November 1998, i.e. more
than two years prior to its adoption. The Supreme Court’s
Opinions, such as the one here at issue, were merely internal
publications meant for distribution among judges, whilst the Civil
Procedure Act 1977 was binding, including Articles 190 and 191
thereof. Lastly, the applicants pointed out that the Municipal Court
in Novi Sad had itself repeatedly noted that the value of the dispute
was 50,000 new dinars, which was well above the statutory threshold
for an appeal on points of law at the relevant time.
The
Government argued that there has been no violation of the Convention.
In particular, they endorsed the Supreme Court’s reasoning of
14 June 2006, as well as its Opinion of 22 May 2001 on which it had
been based. The Government also relied on Article 40 of the Civil
Procedure Act 1977, and submitted that the Supreme Court was not
bound by the lower courts’ mere reference to the amount of
50,000 new dinars as the value of the dispute in question. The
amendment of this figure by the parties on 19 November 1998 was
not done in a timely manner, and the Supreme Court’s Opinion of
22 May 2001 was relevant to the applicants’ case since it had
been adopted almost five years before they had attempted to lodge
their appeal on points of law. Finally, Opinions issued by the
Supreme Court were widely distributed to and frequently cited by the
legal profession.
2. The
Court’s assessment
The
Court reiterates at the outset that it is not its task to take the
place of the domestic courts. It is primarily for the national
authorities, notably the courts, to resolve problems of
interpretation of domestic legislation (see, mutatis mutandis,
the Brualla Gómez de la Torre v. Spain judgment of 19
December 1997, § 31, Reports of Judgments and Decisions
1997-VIII, and the Edificaciones March Gallego S.A. v. Spain
judgment of 19 February 1998, § 33, Reports 1998-I).
The
“right to a court”, of which the right of access is one
aspect, is not absolute; it is subject to limitations permitted by
implication, in particular where the conditions of admissibility of
an appeal are concerned, since by its very nature it calls for
regulation by the State, which enjoys a certain margin of
appreciation in this regard. However, these limitations must not
restrict or reduce a person’s access in such a way or to such
an extent that the very essence of the right is impaired;
specifically, such limitations will not be compatible with Article 6
§ 1 if they do not pursue a legitimate aim or if there is not a
reasonable relationship of proportionality between the means employed
and the aim pursued (see, among other authorities, García
Manibardo v. Spain, cited above, § 36).
It
is also recalled that Article 6 of the Convention does not compel the
Contracting States to set up courts of appeal or of cassation.
Nevertheless, where such courts exist the guarantees contained in
Article 6 must be complied with, inter alia by ensuring
effective access to the courts so that litigants may obtain a
decision relating to their “civil rights and obligations”
(see, among other authorities, García Manibardo v. Spain,
cited above, § 39). The conditions of admissibility of an appeal
on points of law, however, may be stricter than for an ordinary
appeal (see, among many other authorities, EM LINIJA D.O.O. v.
Croatia (dec.), no. 27140/03, 22 November 2007).
Turning
to the present case, the Court notes that the applicants’
complaints concern their arguable real estate-related claims brought
domestically and, as such, clearly fall within the scope of Article 6
§ 1.
Further,
on 14 June 2006 the Supreme Court rejected the applicants’
appeal on points of law as inadmissible given that “the value
of their dispute was below 15,000 new dinars”, the applicable
statutory threshold. The Supreme Court also acknowledged that the
parties had agreed, on 19 November 1998, that the value of the
dispute should be 50,000 new dinars, but emphasised that there was no
separate Municipal Court’s decision to this effect in the case
file. Therefore, the relevant amount was the 4,000,000 old dinars, as
stated in the plaintiff’s original claim, which was clearly
less than the 15,000 new dinars threshold under the relevant civil
procedure rules. The Supreme Court lastly noted that the Government’s
Decree of 24 January 1994 provided that until 22 July 1994 both old
and new dinars would be valid legal tender, but that the “plaintiff”
himself had “not amended the value of the dispute in new
dinars” by the latter date.
In
view of the above, it is this Court’s opinion that the Supreme
Court pursued a legitimate aim and, further, that there was a
reasonable relationship of proportionality between the means employed
and the aim pursued. In particular, the applicable statutory
threshold was not a gratuitous interference with the applicants’
right of access. It was, rather, a legitimate and reasonable
procedural requirement having regard to the very essence of the
Supreme Court’s role, i.e. to deal only with matters of the
requisite significance. Further, as provided in Article 392 of the
Civil Procedure Act 1977, the Supreme Court was fully entitled to
reject any appeal on points of law which it deemed inadmissible (see
paragraph 17 above). Indeed, as correctly noted by the Government,
the Supreme Court was thus not bound by the lower courts’ mere
reference to the amount of 50,000 new dinars as the value of the
dispute in question. Finally, the Supreme Court implicitly based the
impugned decision on its prior binding opinion concerning the
redenomination of the Serbian currency, including the deadline not
complied with by the applicants (see paragraphs 19 and 22 above). In
such circumstances, the Court does not find any reason to believe
that the Supreme Court’s decision in the present was arbitrary.
Accordingly,
it finds that there has been no violation of the applicants’
right of access to court within the meaning of Article 6 § 1 of
the Convention.
FOR THESE REASONS, THE COURT
Decides to join the applications unanimously;
Declares the applications admissible
unanimously;
Holds by five votes to two that there has been
no violation of Article 6 § 1 of the Convention.
Done in English, and notified in writing on 21 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the joint dissenting opinion of
Judges Popović and Pinto de Albuquerque are annexed to this
judgment.
F.T.
S.H.N
JOINT DISSENTING OPINION OF JUDGES POPOVIĆ AND
PINTO DE ALBUQUERQUE
We
respectfully disagree with the ruling of the majority in this case
for the following reasons.
The
applicants complain of an alleged violation of Article 6 § 1 of
the Convention. It is their access to a court which is at stake.
The
applicants brought an action against a private person at the domestic
level, stating the amount of their claim in the national currency
valid at that time. A redenomination of the national currency
occurred while the proceedings were pending before the domestic
courts of law. The applicants did not reformulate their claim in the
new currency. The first-instance court delivered two judgments, after
remittal, reaffirming the value of the applicants’ claim in the
new currency. The District Court, in a judgment on appeal, did the
same. In each of the three judgments the amount stated by the courts
of law was above the threshold required for lodging a second appeal
with the Supreme Court, which the applicants eventually did.
The
Supreme Court rejected the applicants’ second appeal on the
grounds that the threshold requirement had not been fulfilled. The
Supreme Court’s reasoning was based on two arguments: (a) the
applicants had never stated their claim in the new currency, and (b)
there had been no separate ruling by the lower courts on the amount
of the claim.
(a)
Although it is true that the applicants never stated the amount of
their claim in the newly denominated currency, it is obvious from the
case file that there was no need for them to do so. The reason is
crystal clear: the decisions taken by the lower courts of their own
motion concerning the amount of the claim in the new currency made it
unnecessary for the applicants to raise this issue. The lower courts
gave three judgments on the applicants’ case and in each one
the amount awarded was stated, corresponding to the applicants’
claim. The amounts were always above the threshold required for
lodging a second appeal with the Supreme Court.
(b)
Although it is true that there was no separate ruling by the lower
courts concerning the amount of the claim, there were no grounds for
requiring such a ruling, for several reasons.
(1)
The amount of the claim was clearly and repeatedly stated in the
lower courts’ judgments, meaning that these courts gave this
issue due and proper consideration.
(2)
There is no provision whatsoever in domestic law requiring a separate
ruling on the amount of the claim in a lawsuit when there has been a
redenomination of the currency. At the same time the respondent
Government failed to provide any case-law which might serve to
justify such a requirement. It is therefore obvious that the
condition imposed on the applicants for lodging a second appeal was
by no means foreseeable.
(3)
In the Supreme Court’s view it was up to the lower courts to
give a separate ruling. The applicants cannot be blamed for an
omission on the part of the domestic courts.
The
situation we have described above warrants consideration from the
standpoint of our Court’s case-law. The Court cannot replace
the domestic authorities in the assessment of the facts and the
application of national law. However, it must be vigilant in ensuring
the standards of protection of human rights guaranteed by the
Convention and must ascertain whether they have been met in a
particular case.
In
the case of Garcia Manibardo v. Spain (no. 38695/97, §
45, ECHR 2000 II) the Court articulated the principle that
a disproportionate hindrance of the right of access to a court is in
breach of Article 6 of the Convention. The hindrance faced by the
applicants in the present case was disproportionate first and
foremost because of its lack of foreseeability. In the absence of a
specific legal provision and relevant case-law it was not foreseeable
that the Supreme Court would require the lower courts to give a
separate ruling on the issue.
In
substance, the appropriate ruling on the amount of the claim in the
new currency was provided by the lower courts’ judgments, but
the Supreme Court insisted on requiring a formal and separate ruling.
This requirement was even less foreseeable since it did not apply to
other cases before the Supreme Court.
Moreover,
the separate ruling required by the Supreme Court lay outside the
scope of the applicants’ action, which clearly makes the
hindrance of their right disproportionate.
It is
a firm rule in our Court’s jurisprudence that access to a court
must not be denied by a formalistic application of domestic law. The
Court held in Brualla Gomez De La Torre v. Spain (19 December
1997, § 32, Reports of Judgments and Decisions 1997 VIII)
that although it was not for the Court “to express a view on
the appropriateness of the domestic courts’ choice of policy”
it was indeed the Court’s task to determine “whether the
consequences of that choice [were] in conformity with the
Convention”. In several other cases the Court concluded that
whenever the domestic courts applied a certain admissibility
requirement in too formalistic a way, this would amount to a
disproportionate restriction of the right of access to a court (see
Stone Court Shipping Company, S.A. v. Spain, no.
55524/00, §§ 36-43, 28 October 2003; Bulena v. the
Czech Republic, no. 57567/00, § 35, 20 April 2004;
Kadlec and Others v. the Czech Republic, no. 49478/99, §§
26-30, 25 May 2004; and Boulougouras v. Greece, no. 66294/01,
§§ 26-27, 27 May 2004). On another occasion the Commission
also stated that the rejection of a petition for review (cassation)
violated the right of access if that rejection was the result of an
omission on the part of the domestic courts (see Dimova v.
Bulgaria, no. 31806/96, Commission’s report of 21
October 1998). The formalistic requirement of a separate ruling on
the value of the claim, which had already been provided by the lower
courts’ judgments, deprived the applicants in the present case
of the right to lodge a second appeal with the Supreme Court. That is
what in our opinion constitutes a violation of Article 6 in this
case.
We
therefore take the view that the very essence of the applicants’
right to a court was impaired.
