CASE OF ZUBAC v. CROATIA
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)
Jon Fridrik Kjølbro;Julia Laffranque;Paul Lemmens;Georges Ravarani;Ksenija Turković
6. The applicant was born in 1959 and lives in Bijela (the Republic of Montenegro). 7. On 29 September 1992, the applicant’s father-in-law, Vu.Z., represented by his wife K.Z., concluded a contract for the exchange of his house in Dubrovnik (the Republic of Croatia) for one owned by F.O. in Trebinje (Republika Srpska, Bosnia and Herzegovina). 8. In 2001 Vu.Z. brought a civil action in the Trebinje Municipal Court (Osnovni sud u Trebinju) against F.O.’s heirs, seeking permission to register his ownership (clausula intabulandi) of the house in Trebinje. 9. On 20 April 2001 the Trebinje Municipal Court ordered F.O.’s heirs to issue a clausula intabulandi to Vu.Z and the defendants obeyed that order. 10. Vu.Z. died on an unknown date between 2001 and 2002. 11. On 14 August 2002 M.Z., Vu.Z.’s son and the applicant’s husband, brought a civil action in the Dubrovnik Municipal Court (Općinski sud u Dubrovniku), seeking to have the contract for the exchange of the houses declared null and void. He claimed that the contract had been signed under duress because of circumstances arising from the war in Croatia. He also claimed that his father’s signature on the power of attorney used by his mother, Vu.Z.’s wife, to sign the impugned contract on the latter’s behalf, had been forged. In his action, M.Z. indicated the value of the subject matter of the dispute (vrijednost predmeta spora) at 10,000 Croatian Kunas (HRK) (approximately 1,300 euros (EUR) at the time). Later on, at a hearing on 6 April 2005, he indicated the value of the subject matter of the dispute at HRK 105,000 (approximately EUR 14,160 at the time). The defendants objected. 12. On 25 April 2005 the Dubrovnik Municipal Court ordered M.Z. to pay court fees of HRK 1,400 (approximately EUR 180 at the time) for bringing the civil action. It assessed the fees according to the value of the dispute being at HRK 105,000. 13. By a judgment of 27 September 2005 the Dubrovnik Municipal Court dismissed the claim and ordered the claimant to bear all the litigation costs and the expenses of the opposing parties, namely HRK 25,931.10 (approximately EUR 3,480 at the time). It assessed the costs of the proceedings according to the value of the subject matter of the dispute indicated at the hearing on 6 April 2005, namely HRK 105,000. The relevant part of the judgment reads as follows: “... the costs of the proceedings were awarded to the defendants [and assessed] according to ... the value of the dispute indicated by the claimant (HRK 105,000 (page 58 [of the case-file]) that the [first-instance] court accepted.” 14. On 12 December 2005 the first-instance court ordered the claimant to pay court fees of HRK 1,400 for the judgment. It also assessed them according to a value of HRK 105,000 for the dispute. 15. By a judgment of 1 October 2009 the Dubrovnik County Court (Županijski sud u Dubrovniku) dismissed an appeal by the claimant and upheld the first-instance judgment. The relevant part of that judgment reads as follows: “... the decision on the costs of the proceedings is based on the relevant law and adequate reasons are provided.” 16. On 24 May 2010 M.Z. lodged an appeal on points of law (revizija) with the Supreme Court. 17. On 17 October 2010 M.Z. died. The proceedings were taken over by his wife Vesna Zubac, the applicant, as his heir. 18. By a decision of 30 March 2011 the Supreme Court declared the appeal on points of law inadmissible ratione valoris, finding that the value of the subject matter of the dispute was below the statutory threshold of HRK 100,000. It held that the applicable value of the subject matter of the dispute was the one indicated in the claimant’s civil action. The relevant part of that decision reads as follows: “With regard to section 40(3) of the Civil Procedure Act if, in a situation referred to in subsection 2, it is obvious that the value of the subject matter of the dispute indicated by the claimant is too high or too low, so that an issue arises over jurisdiction over the subject matter, the composition of the court, the type of proceedings, or the right to lodge an appeal on points of law, the court shall quickly and in an appropriate manner verify the accuracy of the value specified, by the latest at the preparatory hearing or, if no preparatory hearing has been held, at the main hearing before the examination of the merits. It follows that when an action does not concern a sum of money the claimant is obliged to indicate the relevant value of the subject matter of the dispute in the civil action, after which the claimant is not allowed to change the [indicated] value of the dispute. Only a court may set the value of the subject matter of the dispute, ex officio or if an objection is raised by the defendant, if it establishes that the value indicated in the civil action is too high or too low, by the latest at the preparatory hearing or, if no preparatory hearing has been held, at the main hearing before the examination of the merits. In the present case the value of the subject matter of the dispute indicated in the statement of claim is 10,000 Croatian kunas. Later on, at the hearing of 6 April 2005, the claimant’s representative indicated the value of the subject matter of the dispute at 105,000 Croatian kunas ... . However, the claimant did not amend the claim at the same time. [Therefore] the first-instance court did not adopt a decision on a new value for the dispute because the procedural requirements under section 40(3) of the CPA [Civil Procedure Act] were not met. It follows that the relevant value of the subject matter of the dispute is the one indicated by the claimant in the civil action, namely 10,000 Croatian kunas, because the claimant was not allowed to change the indicated value if he did not amend his claim at the same time.” 19. By a decision of 10 November 2011 the Constitutional Court declared a constitutional complaint by the applicant inadmissible on the grounds that the case raised no constitutional issues. On 30 November 2011 it served its decision on the applicant’s representative.