CASE OF JOVANOVIĆ v. SERBIA
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)
Françoise Tulkens;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque
5. The applicant was born in 1944 and lives in Kruševac. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 14 January 2003 the applicant’s brother (“the plaintiff”) filed a claim against the applicant with the Municipal Court in Kruševac (P. no. 63/2003). The claim concerned the validity of a “life-long maintenance contract” (ugovor o doživotnom izdržavanju) concluded between the applicant and their late mother in so far as it involved a house in which she had lived and the applicant’s acquisition of the title thereto following her death. The value of the dispute (vrednost spora) indicated by the plaintiff was 1,000 dinars (RSD/equivalent to approximately 15 euros (EUR)). 8. On 19 February 2003 the applicant informed the court in one sentence that he contested the plaintiff’s allegations and claim. He further stated that, in view of the main hearing scheduled for 27 February, he intended to lodge a comprehensive written pleading soon. 9. On 27 February 2003 the court formally stayed the proceedings (doneo rešenje o mirovanju) until 27 June 2003 as no one attended the hearing. 10. On 23 June 2003 the plaintiff requested the continuation of the proceedings. 11. The three following hearings, scheduled between September and November 2003, were adjourned due to problems with having the parties properly summoned or their own requests for adjournment. 12. On 8 January 2004 the court held a brief hearing. The plaintiff reaffirmed his claim, stating that he would provide further evidence after the applicant had submitted his response to the claim (odgovor na tužbu). The applicant requested the court to discontinue the proceedings pending the outcome of another case. The court ordered the applicant to submit his response to the claim and adjourned the hearing indefinitely. 13. In his written response of 14 January 2004, the applicant from the outset requested the court to determine a realistic value of the dispute. 14. On 12 February 2004 the court formally discontinued the proceedings (doneo rešenje o prekidu postupka) and requested the plaintiff to pay the court stamp duty (sudska taksa) calculated on the basis of the value of the dispute as initially specified by the plaintiff. 15. On 4 July 2006, at the outset of the first hearing held in the resumed proceedings, the Municipal Court formally established that the actual value of the dispute was RSD 600,000 (equivalent to approximately EUR 6,700). It further ordered the plaintiff to pay additional stamp duty, corresponding to the difference between the initially specified value of the dispute and that decided on by the court. 16. On 5 December 2006 the Municipal Court ruled in favour of the plaintiff, declaring the impugned contract partially void. In so doing, it reaffirmed that the value of the dispute was RSD 600,000. 17. On 27 March 2007 the District Court in Kruševac upheld this judgment on appeal, noting that the value of the dispute was RSD 600,000. 18. On 22 May 2007 the applicant filed an appeal on points of law (izjavio reviziju). 19. On 5 September 2007 the Supreme Court rejected this appeal. It found that the applicant was not entitled to lodge an appeal on points of law given that the value of the dispute in question, as specified in the claim of 14 January 2003, was RSD 1,000 and, as such, well below the applicable statutory threshold of RSD 300,000. The Supreme Court also noted, without any further explanation, that the determination of the value of the dispute on 4 July 2006 by the Municipal Court had been carried out in breach of Article 40 of the Civil Procedure Act. 20. The applicant was served with the Supreme Court’s decision on 27 December 2007. 21. In the meantime, on 23 November 2007, the Municipal Court ordered the applicant to pay court fees calculated on the basis of the value of the dispute set at RSD 600,000. 22. The applicant has not yet paid this amount. 23. Articles 35-40 provide general rules as regards the means of establishing the value of a civil dispute. Article 40 § 2 provides that, in cases not relating to pecuniary requests, the relevant value of the dispute shall be the one indicated by the plaintiff in his claim. However, Article 40 § 3 provides that when the value of the dispute specified by the plaintiff appears to be “obviously too high or too low”, and thus might affect, inter alia, the availability of an appeal on points of law, the court of first instance shall itself assess the accuracy of the specified value. This must be done speedily and in an adequate manner, at the preliminary hearing (pripremno ročište) at the latest, or, if one is not held, at the main oral hearing (glavna rasprava) before the examination of the merits. 24. Articles 227-320 prescribe the rules on the preparation for and the holding of the main hearing. In particular, Article 284 § 2 provides that a preliminary hearing shall not be scheduled when the civil proceedings at first instance are to be conducted by a single judge. Article 297 § 5 states, inter alia, that when a party objects on a certain issue, submits a motion or undertakes other procedural action in the proceedings before the respondent has begun contesting the subject-matter of the dispute, the respondent as a party may undertake such procedural steps before he has concluded his response to the claim. 25. Article 382 § 3 provides that an appeal on points of law (revizija) is “not admissible” in cases not relating to pecuniary requests where the value of the dispute, as indicated by the plaintiff in his claim, does “not exceed 15,000 ... dinars”. 26. In accordance with Articles 383 and 394-397, inter alia, 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. Lastly, Article 392 provides, inter alia, that the Supreme Court shall reject any and all appeals on points of law which it deems inadmissible. 27. Article 16 § 3, inter alia, increased the minimum requirement for an appeal on points of law from 15,000 new dinars to 300,000 new dinars. 28. 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. 29. Article 422 § 10 further provides that a case may be reopened if the European Court of Human Rights has in the meantime rendered a judgment in respect of Serbia concerning the same or a similar legal issue. 30. If a claim does not contain a pecuniary request (Article 40 § 2), the value of the dispute concerning the contested part of the appellate decision relevant for the assessment of the right to appeal on points of law shall be the one indicated by the plaintiff in his or her civil claim, or the one established by the court, speedily and in an adequate manner, at the preliminary hearing at the latest, or, if one was not held, during the course of the main oral hearing before the examination of the merits (Article 40 § 3), hence, before the plaintiff had started arguing his claim (Article 297 § 1). 31. In this regard, if the court omitted to assess the value of the dispute, and if the respondent failed to submit an objection thereto at the preliminary hearing, or, if one was not held, at the first hearing of the main oral hearing before his response to the claim had been concluded (Article 297 § 5), both the courts and the parties are thereafter precluded from discussing the value of the dispute.