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FOURTH
SECTION
CASE OF GARZIČIĆ v. MONTENEGRO
(Application
no. 17931/07)
JUDGMENT
STRASBOURG
21
September 2010
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 Garzičić
v. Montenegro,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza,
President,
Giovanni Bonello,
David Thór
Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Ledi Bianku,
Nebojša
Vučinić, judges,
and Lawrence
Early, Section
Registrar,
Having
deliberated in private on 31 August 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 17931/07) against Montenegro
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Montenegrin national, Ms Desanka Garzičić
(“the applicant”), on 9 April 2007.
- The
applicant was represented by Mr D. Marković, a lawyer practising
in Podgorica. The Montenegrin Government (“the Government”)
were represented by their Agent, Mr Z. PaZin.
- The
applicant alleged, in particular, that her right of access to a court
had been violated by the Supreme Court, which had refused to consider
her appeal on points of law on its merits.
- On
9 September 2009 the President of the Fourth Section decided to give
notice of the application to the Government. Under Article 29 §
3 of the Convention, it was also decided that the merits of the
application would be examined together with its admissibility and
that priority would be given to the application in accordance with
Rule 41 of the Rules of the Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
-
The applicant was born in 1924 and lives in Podgorica. She is
also a paraplegic.
-
The facts of the case, as submitted by the parties, may be summarised
as follows.
- On
4 October 2000 the applicant lodged a property-related claim with the
Court of First Instance (Osnovni sud) in Podgorica, seeking
declaratory relief. In so doing, she failed to specify the exact
value of the claim in question (vrijednost spora). However, on
2 November 2000 she paid court fees of approximately 10 euros (EUR),
which corresponded to the value of claims ranging between EUR 50 and
EUR 150.
- On
29 April 2004, at the end of the main hearing (glavna rasprava)
and after additional evidence had been examined, the applicant
specified that the value of the claim was EUR 37,000.
- On
the same day the Court of First Instance ruled in favour of the
applicant. The judgment stated, inter alia, that the value of
the claim was EUR 37,000 and noted that “[an expert witness had
assessed that] on
10 October 1984 ... the total value of ... the
property ... [at issue had been] ... EUR 72,877.79”.
-
On 22 October 2004 the High Court (Viši sud) in
Podgorica quashed that judgment and ordered a re-trial.
-
On 15 June 2005 the applicant, after the main hearing had ended and
on the court's request, specified that the value of the claim was
EUR 9,900. On the same day the respondent's representative
submitted his claim for costs based on the value of the claim being
EUR 11,637.
-
On 19 July 2005 the Court of First Instance ruled against the
applicant. The judgment specified, inter alia, that the value
of the claim was EUR 11,500 and once again referred to the said
expert's findings.
-
On 7 April 2006 the High Court upheld that judgment on appeal.
-
On 10 October 2006 the Supreme Court (Vrhovni sud) in
Podgorica rejected the applicant's appeal on points of law (revizija)
as inadmissible, stating that the court fees (sudska taksa)
paid by the applicant had indirectly set the value of the claim
significantly below the statutory threshold (see Article 382 § 3
at paragraph 19 below).
II. RELEVANT DOMESTIC LAW
A. Civil Proceedings 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 and 35/91, as
well as in the Official Gazette of the Federal Republic of Yugoslavia
– OG FRY – nos. 27/92, 31/93, 24/94, 12/98 and 15/98)
- Sections
35-40 provide general rules as regards the means of establishing the
value of a civil claim.
-
Section 40 § 2 provides that in cases not relating to pecuniary
requests the relevant value of the claim shall be the one indicated
by the plaintiff in his/her claim.
-
Section 40 § 3 further provides that when the value specified by
the plaintiff appears to be obviously incorrect, the competent
first-instance court shall “at the latest at the preliminary
hearing (pripremno ročište) or, if there was no
preliminary hearing, at the main hearing before the examination of
merits, speedily and in an adequate manner, check the accuracy”
of the specified value.
-
Section 186 § 2 provides that when the right to an appeal on
points of law depends on the value of the claim “the plaintiff
has a duty to indicate [the value of the claim] in the statement of
claim”.
-
Section 382 § 3 provides that an appeal on points of law shall
not be admissible in non-pecuniary matters where the value of the
claim does not exceed approximately EUR 1,470.
-
Under sections 383 and 394-397, inter alia, the Supreme Court
may, should it accept an appeal on points of law lodged by one of the
parties concerned, overturn the impugned judgment or quash it and
order a re-trial before the lower courts.
B. Family Law Act 1989 (Porodični zakon, published in the
Official Gazette of the Socialist Republic of Montenegro – OG
SRM –
no. 7/89)
-
Sections 8 and 154 of this Act stipulate that legal guardianship
shall be provided only to persons not capable of taking care of their
“person, rights and interests”.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
-
The applicant complained under Article 6 § 1 of the Convention
that her right of access to court had been violated by the Supreme
Court's refusal to consider her appeal on points of law on its
merits.
-
Article 6 reads as follows:
“In the determination of his/her civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
Admissibility
-
The Government submitted that the applicant's complaint was
incompatible ratione temporis on the grounds that the final
judgment in the domestic proceedings had been rendered by the High
Court on 19 July 2005 and the Committee of Ministers of the Council
of Europe had decided that Montenegro was a party to the Convention
as of 6 June 2006.
-
The applicant maintained that her complaints were admissible.
-
The Court notes that it has already held that the Convention should
be deemed as having continuously been in force in respect of
Montenegro as of 3 March 2004 (see Bijelić v. Montenegro and
Serbia, no. 11890/05, § 69, 28 April 2009). It sees no
reason to depart from this finding in the present case. The
Government's ratione temporis objection must, therefore, be
dismissed.
-
The Court also considers that the complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention and finds no other ground to declare it inadmissible. It
must therefore be declared admissible.
B. Merits
-
The Government submitted that section 186 § 2 of the Civil
Proceedings Act 1977 provided for the applicant's duty to indicate
the value of the claim (see paragraph 18 above). The Government
further maintained that the domestic courts only had to check the
accuracy of the indicated value, and did not have to establish the
value if the applicant did not give an indication thereof. In the
Government's opinion, both the courts and the parties were precluded
from discussing the value of the claim if they had not done so by the
end of the first main hearing. In addition, the Government submitted
that: (a) the value of 37,000 EUR was established arbitrarily, (b)
the sum of EUR 9,900 was specified by the applicant in the re-trial
only after the main hearing, which is not allowed by the Civil
Proceedings Act 1977, and (c) the sum of EUR 11,637 was specified
also arbitrarily by the defendant's representative when seeking his
expenses and not by the applicant. That being so, the Government
concluded that the Supreme Court could not have been bound by any of
the above indicated values and therefore there was no violation of
the applicant's right.
-
The applicant reaffirmed her complaint.
-
In its Golder v. the United Kingdom judgment of 21 February
1975, the Court held that Article 6 § 1 “secures to
everyone the right to have any claim relating to his civil rights and
obligations brought before a court or tribunal” (§ 36,
Series A no. 18). The “right to a court”, of which the
right of access is an aspect, may be relied on by anyone who
considers on arguable grounds that an interference with the exercise
of his or her (civil) rights is unlawful and complains that no
possibility was afforded to submit that claim to a court meeting the
requirements of Article 6 § 1 (see, inter alia, Roche
v. the United Kingdom [GC], no. 32555/96, § 117,
ECHR
2005-X).
-
Article 6 of the Convention does not compel the Contracting States to
set up courts of appeal or of cassation. Where such courts do exist,
the guarantees of Article 6 must be complied with, for instance in
that it guarantees to litigants an effective right of access to the
courts for the determination of their "civil rights and
obligations" (see, among many authorities, Levages
Prestations Services v. France, 23 October 1996, § 44,
Reports of Judgments and Decisions 1996 V).
-
The “right to a court”, however, 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 a State, which
enjoys a certain margin of appreciation in this regard (see García
Manibardo v. Spain, no. 38695/97, § 36, ECHR 2000-II, and
Mortier v. France, no. 42195/98, § 33, 31 July 2001).
Nonetheless, these limitations must not restrict or reduce the
individual's access in such a way or to such an extent as to impair
the very essence of the right. Moreover, they will only be compatible
with Article 6 § 1 if they are in accordance with the relevant
domestic legislation, pursue a legitimate aim and there is a
reasonable relationship of proportionality between the means employed
and the aim pursued (see Guérin v. France, 29 July
1998, § 37, Reports of Judgments and Decisions 1998 V).
- Turning
to the present case, the Court notes that the Civil Proceedings Act
requires the plaintiff to indicate the value of the claim in dispute.
When this value is set at an unrealistic level, either too low or too
high, the first-instance court shall check the accuracy thereof (see
paragraph 17 above). However, the Court considers that, even though
the domestic courts have no obligation in that respect, there is no
provision in the Civil Proceedings Act that would prohibit the courts
from establishing the value when the plaintiff has failed to indicate
it in the statement of claim. In the present case the domestic courts
established the value of the claim in both the first and second
remittal, taking into account the expert's findings as well as the
value specified by the parties themselves. Although these values
differed, the Court does not consider it necessary to determine which
of the two was more accurate as both of them allowed for the appeal
on points of law in accordance with Article 382 § 3 of the Civil
Proceedings Act 1977 (see paragraph 19 above). In any event, the
applicant should not suffer any detriment on account of the courts'
failure to order the applicant to pay the difference between the
court fees that had been paid and the fees that corresponded to the
established values of the claim. Therefore, the Court finds that
there has been a breach of the applicant's right of access to the
Supreme Court.
-
There has accordingly been a violation of Article 6 § 1 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
-
The applicant also complained about: (a) the domestic courts'
assessment of evidence, (b) the outcome of the proceedings before the
Court of First Instance and the High Court under Article 1 of
Protocol No. 1, and (c) being discriminated against by the domestic
courts on account of her disability and the domestic courts' failure
to involve the Social Care Centre in the proceedings.
-
The Court points out that it is not within its province to substitute
its own assessment of the facts for that of the domestic courts and
that, as a general rule, it is for these courts to assess the
evidence before them. The Court's task is to ascertain whether the
proceedings in issue, considered as a whole, were fair as required by
Article 6 § 1 (see, amongst many authorities, Edwards v. the
United Kingdom, 16 December 1992, § 34, Series A
no. 247
B; Vidal v. Belgium, 22 April 1992, § 33, Series A no.
235 B). In the present case, there is nothing to suggest that the
courts' approach was in any way arbitrary or unfair. Therefore, this
complaint must be declared inadmissible as manifestly ill-founded in
accordance with Article 35 §§ 3 and 4 of the Convention.
-
The Court observes that Article 1 of Protocol No. 1 does not concern
the regulation of civil law rights between parties under private law.
In the instant case, therefore, the courts' decisions against the
applicant, according to the rules of private law, cannot be seen as
an unjustified State interference with the property rights of the
losing party. Indeed, it is the very function of the courts to
determine such disputes, the regulation of which falls within the
province of domestic law and outside the scope of the Convention
(see, mutatis mutandis, Kuchar and Stis v. Czech Republic
(dec.), no. 37527/97, 21 October 1998; see also S.Ö., A.K.,
Ar.K. and Y.S.P.E.H.V. v. Turkey (dec.) 31138/96, 14 September
1999; H. v. the United Kingdom, no. 10000/82, Commission
decision of. 4 July 1983,
DR 33 p.247, at p. 257; and Bramelind
and Malmström v. Sweden, no.8588/79, Commission decision of
12 October 1982, DR 29, p.64, at
p. 82). Therefore, this
complaint is incompatible ratione materiae with the provisions
of the Convention within the meaning of Article 35 § 3 and must
be rejected in accordance with Article 35 § 4 thereof.
-
Lastly, the Court notes that there is no evidence in the case file
that there has been any discrimination against the applicant on any
grounds. As for the involvement of the Social Care Centre, the
relevant sections of the Family Law Act 1989, which was in force at
the time when the proceedings were conducted, provided for legal
guardianship only in respect of persons not capable of managing their
own rights and interests (see paragraph 21 above). However, this was
not the case with the applicant, whose disability was physical not
mental, and who was, in addition, represented by a lawyer throughout
the proceedings. Hence, this complaint must also be rejected as
manifestly ill-founded in accordance with Article 35 §§ 3
and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
39. Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant requested EUR 150,000 in respect of pecuniary damage.
- The
Government contested this claim.
- The
Court is of the view that it has not been duly substantiated that the
applicant sustained pecuniary damage as a result of the violation of
her right of access to the Supreme Court. Even if not the
subject of a specific claim, the Court accepts that the applicant
has suffered
non-pecuniary damage which cannot be sufficiently compensated by the
sole finding of a violation. Making its assessment on an equitable
basis and having regard to the particular circumstances of the case,
the Court awards the applicant EUR 1,500
under this head (see,
mutatis mutandis,
Staroszczyk v. Poland,
no. 59519/00, §§ 141-143, 22 March 2007).
B. Costs and expenses
- The
applicant claimed EUR 10,000 for “costs of proceedings”.
-
The Government contested that claim.
-
According to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
also reasonable as to their quantum (see, for example, Iatridis v.
Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR
2000-XI).
-
In the present case, regard being had to the fact that the applicant
failed to submit evidence, such as itemised bills and invoices, that
those expenses had been actually incurred, the Court, accordingly,
rejects that claim.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the
applicant's access to the Supreme Court admissible and the remainder
of the application inadmissible;
- Holds that there has been a violation of the
applicant's right of access to the Supreme Court under Article 6 §
1 of the Convention;
3. Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,500 (one
thousand five hundred euros) in respect of non-pecuniary damage, plus
any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 21 September 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
