CASE OF ZUBAC v. CROATIA
No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)
Alena Poláčková;Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Georgios A. Serghides;Guido Raimondi;Helena Jäderblom;Jon Fridrik Kjølbro;Julia Laffranque;Linos-Alexandre Sicilianos;Luis López Guerra;Nona Tsotsoria;Paul Lemmens;Síofra O’Leary;Georges Ravarani;Ksenija Turković
9. The applicant was born in 1959 and lives in Bijela (Montenegro). 10. On 29 September 1992, the applicant’s father-in-law, Vu.Z., represented by his wife K.Z., concluded a contract with F.O. and H.A. for the exchange of his house in Dubrovnik for a house in Trebinje (Bosnia and Herzegovina). 11. Vu.Z. died on an unknown date between 2001 and 2002. 12. On 14 August 2002 the applicant’s husband M.Z., who was a son of Vu.Z., represented by a certain M.Č. from Herceg Novi (Montenegro), brought a civil action in the Dubrovnik Municipal Court (Općinski sud u Dubrovniku) against F.O.’s heirs and H.A., seeking to have the contract for the exchange of the houses declared null and void and to obtain the possession of the house in Dubrovnik. M.Č. was a practising lawyer in Montenegro. 13. M.Z. claimed that the contract had contained incorrect information with regard to the legal status of the house in Trebinje and that K.Z. had not had the necessary authorisation to sign such a contract. He further alleged that the contract had been signed under duress because of circumstances arising from the war in Croatia. He also submitted that the difference in the values of the properties exchanged had been disproportionate in that the house in Dubrovnik was worth about 250,000-300,000 euros (EUR) and the house in Trebinje some EUR 80,000-90,000. Lastly, he stressed that it had been impossible for him to regularise his ownership of the house in Trebinje due to the irregularities in the contract. 14. 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 EUR 1,300 at the time). 15. On 16 August 2002 the Dubrovnik Municipal Court (hereafter: “the Municipal Court”) invited M.Z. to clarify the circumstances relating to his legal representation, in particular by providing a valid power of attorney, and to provide some further documents concerning his claim. 16. A first hearing in the case was held on 3 March 2003. At that hearing, the Dubrovnik Municipal Court instructed M.Z. to provide documents attesting to his standing as heir of Vu.Z. 17. Further to this hearing, the parties exchanged pleadings and documentary evidence requested by the Municipal Court. 18. At a hearing on 13 December 2004 the respondents insisted that the issue of M.Z.’s representation by M.Č. needed to be clarified. The latter stated that he would no longer represent M.Z., who would instruct a lawyer in Croatia to represent him. 19. A further hearing was held on 1 February 2005. M.Z. was represented by I.B., a lawyer practising in Dubrovnik (who is also representing the applicant in the current proceedings before the Court). At the hearing, the lawyer I.B. corrected some clerical omissions in the civil action and reiterated the arguments for declaring the contract null and void as set forth in the civil action, namely that the contract had been signed under duress, that the legal status and ownership of the house in Trebinje had not been properly stated and that there had been a disproportionate difference in the value of the properties. In reply to a question by the trial judge concerning the validity of the power of attorney issued by Vu.Z. to his wife K.Z. (see paragraphs 10 and 13 above), I.B. stressed that he did not consider that power of attorney to be invalid as an original had been deposited in the relevant register. The respondents challenged the arguments advanced on behalf of M.Z. on the basis that there were no grounds for declaring the contract null and void. 20. At a hearing on 6 April 2005 the lawyer I.B. explained that following the termination of the hearing he would no longer represent M.Z., who would in future be represented by the applicant (his wife). At the same hearing, I.B. submitted two documents. In the first he requested that the validity of the power of attorney issued by Vu.Z. to his wife K.Z. (see paragraphs 10, 13 and 19 above) be examined on the grounds that there were doubts as to its authenticity. In the same document he asked that a preliminary measure (injunction) be issued preventing any disposal of the property in dispute. In the second document he explained that the value of the subject matter of the dispute had been set too low, and indicated the new value of the subject matter of the dispute at HRK 105,000 (approximately EUR 14,160 at the time). 21. At the same hearing, the respondents contested the suggestion that there was any issue with the validity of the power of attorney, pointing out that at a hearing held on 1 February 2005 I.B. had not challenged that validity. The respondents also opposed the request for an injunction. Finally, they objected to the change of the value of the subject matter of the dispute, arguing that it had been increased only in order to enable the claimant to lodge an appeal on points of law. 22. After hearing the parties’ pleas, the Municipal Court questioned the respondents as witnesses. Following their questioning, at M.Z.’s request the Dubrovnik Municipal Court adjourned the hearing in order to obtain the original of the impugned power of attorney and reserved its decision on the request for an injunction. No decision was adopted with regard to the change of the value of the subject matter of the dispute. 23. On 25 April 2005 the Municipal Court ordered M.Z. to pay court fees of HRK 1,400 (approximately EUR 190 at the time) for bringing the civil action. It assessed the fees by reference to a value of the dispute set at HRK 105,000. 24. At a hearing on 13 September 2005 the Municipal Court examined the materials available in the file, following which it concluded the hearing. 25. By a judgment of 27 September 2005 the Municipal Court dismissed M.Z.’s claim and the request for an injunction. It found that despite repeated attempts to summon M.Z. to the hearing, he had failed to appear without providing any valid reasons. Also, in the light of the parties’ arguments, including on the issues regarding the power of attorney on the basis of which the contract had been concluded, it found no grounds to doubt the validity of the contract. The Municipal Court ordered that M.Z. was to bear all the litigation costs, including the expenses of the opposing parties, in the amount of HRK 25,931.10 (approximately EUR 3,480 at the time). It assessed the costs of the proceedings by reference 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: “... [T]he costs of the proceedings were awarded to the respondents [and assessed] according to ... the value of the dispute indicated by the claimant (HRK 105,000 (page 58 [of the case-file]) which this court accepted.” 26. On 12 December 2005 the first-instance court ordered M.Z. to pay court fees of HRK 1,400 for the judgment. It also assessed these fees by reference to a value of HRK 105,000 for the dispute. 27. By judgment of 1 October 2009 the Dubrovnik County Court (Županijski sud u Dubrovniku; hereafter: “the County Court”) dismissed an appeal by M.Z. and upheld the first-instance judgment. The relevant part of that judgment reads as follows: “In view of the fact that the [first-instance judgment] is challenged in its entirety, thus including also the decision on the costs of the proceedings, and although the appeal is not specified in that respect, [it is to be noted that] the decision on the costs of the proceedings is based on the relevant law and adequate reasons are provided.” 28. On 24 May 2010 M.Z. lodged an appeal on points of law (revizija) with the Supreme Court challenging the findings of the lower courts. 29. On 7 October 2010 M.Z. died. The proceedings were taken over by his wife Vesna Zubac, the applicant, as his heir. 30. 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 (approximately EUR 13,500 at the time). It held that the applicable value of the subject matter of the dispute was that set out in the claimant’s statement of claim in the 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 concerning jurisdiction over the subject matter, the composition of the court, the type of proceedings, the right to lodge an appeal on points of law, the authorisation for representation or the costs of proceedings, the court shall, ex officio or upon the objection of the respondent, by the latest at the preparatory hearing or, if no preparatory hearing has been held, at the first session of the main hearing before the respondent has begun litigation on the merits of the case, quickly and in an appropriate manner verify the accuracy of the value specified and, by a decision against which no separate appeal is allowed, determine the value of the subject matter of the dispute. 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 respondent, 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 considering that it had been indicated too low in the civil action. However, the claimant did not amend the claim at the same time. 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.” 31. By a decision of 10 November 2011 the Constitutional Court summarily declared a constitutional complaint by the applicant, complaining, inter alia, of a lack of access to the Supreme Court, inadmissible on the grounds that the case raised no constitutional issues. On 30 November 2011 it served its decision on the applicant’s representative.