FIRST SECTION
CASE OF DRAGAN KOVAČEVIĆ v. CROATIA
(Application no. 49281/15)
 
 
Art 6 § 1 (civil) • Access to court • Refusal to award high costs for making a complaint before the Constitutional Court concerning divestment of legal capacity, disproportionate to the aims of securing court’s smooth functioning and protecting State budget • Social services not a participant to the formally one-party proceedings, meaning no risk of a chilling effect on the performance of their duties by awarding costs
 
JUDGMENT
 
STRASBOURG
12 May 2022
 
FINAL
 
12/08/2022
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Dragan Kovačević v. Croatia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
 Marko Bošnjak, President,
 Péter Paczolay,
 Krzysztof Wojtyczek,
 Alena Poláčková,
 Erik Wennerström,
 Raffaele Sabato,
 Davor Derenčinović, judges,
and Renata Degener, Section Registrar,
Having regard to:
the application (no. 49281/15) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Dragan Kovačević (“the applicant”), on 28 September 2015;
the decision to give notice to the Croatian Government (“the Government”) of the complaints concerning access to a court and the peaceful enjoyment of possessions;
the parties’ observations;
Having deliberated in private on 22 February and 29 March 2022,
Delivers the following judgment, which was adopted on the last‑mentioned date:
INTRODUCTION
1. The case concerns the costs of proceedings before the Constitutional Court. The relevant authorities instituted proceedings with a view to divesting the applicant of his legal capacity and the civil courts ruled in their favour. Further to a constitutional complaint by the applicant, the Constitutional Court quashed the civil courts’ decisions but dismissed his claim for reimbursement of his costs. The ruling on costs was based on a provision of domestic law providing that each participant in proceedings before the Constitutional Court has to bear its own costs unless the court decides otherwise. THE FACTS
2. The applicant was born in 1988 and lives in Slatina. He was represented first by Ms L. Kušan, a lawyer practising in Ivanić Grad, and then by Ms N. Owens, a lawyer practising in Zagreb. 3. The Government were represented by their Agent, Ms Š. Stažnik. 4. The facts of the case may be summarised as follows. 5. On 21 November 2012 the Slatina Social Welfare Centre instituted proceedings before the Slatina Municipal Court (Općinski sud u Slatini) to deprive the applicant of his legal capacity (lišenje poslovne sposobnosti). 6. On 30 November 2012 the Social Welfare Centre appointed, of its own motion, the applicant’s mother to act as his guardian ad litem in the proceedings. 7. By a decision of 5 March 2013, the Municipal Court deprived the applicant of his legal capacity. It found that he suffered from a permanent mild to moderate intellectual disability and was therefore unable to take care of his rights and interests. It was also stated in the decision that the applicant’s monthly income consisted of 1,250 Croatian kunas (HRK) in disability benefits, which was approximately 164 euros (EUR) at the time. 8. On 2 April 2013 the applicant, represented by an advocate, lodged an appeal against that decision. He argued, inter alia, that the decision was in breach of his rights guaranteed by Article 8 of the Convention. 9. By a decision of 23 January 2014, the Bjelovar County Court (Županijski sud u Bjelovaru) dismissed the applicant’s appeal and upheld the first-instance decision. 10. On 19 March 2014 the applicant, represented by his advocate, lodged a constitutional complaint challenging the civil courts’ decisions. He alleged that they were in breach of his constitutional and Convention rights to a fair hearing and to respect for his private and family life. He also relied on the Court’s case-law. He enclosed copies of the contested first- and second‑instance decisions with the constitutional complaint. 11. In his constitutional complaint the applicant also sought reimbursement of his costs of legal representation before the Constitutional Court, amounting to HRK 6,250, approximately EUR 815 at the time. 12. By a decision of 20 May 2015, the Constitutional Court allowed the applicant’s complaint, finding a violation of his right to respect for his private and family life, and quashed the civil courts’ decisions. However, it dismissed his claim for reimbursement of his costs, referring to section 23 of the Constitutional Court Act, which provides that, unless the court decides otherwise, each participant in proceedings before it has to bear its own costs (see paragraph 15 below). The relevant part of the Constitutional Court’s decision reads:
“As regards the claim for the costs of the proceedings before the Constitutional Court, [the court] points out that under section 23 of the Constitutional Court Act, each participant in Constitutional Court proceedings has to bear its own costs, unless the Constitutional Court decides otherwise. Since, in the present case, the Constitutional Court did not decide otherwise, the complainant shall bear his own costs.”
13. In resumed proceedings, by a decision of 29 September 2015 the Virovitica Municipal Court (Općinski sud u Virovitici) dismissed the Social Welfare Centre’s request to deprive the applicant of his legal capacity. As regards the costs of the proceedings, the court noted that the applicant had not asked for their reimbursement. It therefore decided that that each party should bear its own costs. 14. In the absence of an appeal, that decision became final on 12 November 2015. RELEVANT LEGAL FRAMEWORK AND PRACTICE
domestic lawThe Constitutional Court ActRelevant provisions

15. The relevant provisions of the Constitutional Act on the Constitutional Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 99/99 with subsequent amendments – “the Constitutional Court Act”) governing the costs of proceedings read as follows:
Section 23
“Each participant in Constitutional Court proceedings shall bear its own costs, unless the Constitutional Court decides otherwise.”
Section 80
“The Constitutional Court may order that a complainant who has not succeeded with his or her constitutional complaint pay the costs of the proceedings before the Constitutional Court if he or she has caused them to be incurred through his or her own fault.”
16. The other relevant provisions of the Constitutional Court Act read as follows:
Section 34
“Unless otherwise provided by this Act, in proceedings before it the Constitutional Court shall apply mutatis mutandis the provisions of the relevant procedural laws of the Republic of Croatia as subsidiary rules.”
Section 62(1)
“Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the decision of a State authority, local or regional government, or legal person vested with public authority, on his or her rights or obligations, or as regards suspicion or accusation of a criminal offence, has violated his or her human rights or fundamental freedoms, or the right to local or regional government, guaranteed by the Constitution (‘constitutional rights’) ...”
Relevant practice
17. The Government submitted several examples of domestic case-law in which the domestic courts, in resumed proceedings before the civil courts following a successful constitutional complaint by one of the parties, had awarded that party the costs of his or her constitutional complaint. In particular, they submitted a Supreme Court judgment (no. Revr 537/08-2 of 19 November 2008) adopted in civil proceedings concerning an employment dispute, a decision of the Osijek Municipal Court (no. R1-48/2014-6 of 21 March 2014) adopted in non-contentious proceedings instituted by a social welfare centre with a view to depriving the counterparty of his legal capacity, a decision of the Osijek Municipal Court (no. P-796/2012-17 of 27 May 2013) adopted in civil proceedings concerning the termination of a specially protected tenancy, and a decision of the Šibenik Municipal Court (no. P‑1479/2015 of 27 June 2016) adopted in civil proceedings concerning a land ownership dispute. Other relevant documents
18. The Constitutional Court’s website contains a document entitled “Instructions for filling in a constitutional complaint form” (Upute za ispunjavanje obrasca ustavne tužbe). The relevant part, regarding complainants’ representatives, reads:
“The representative does not have to be an advocate, but due to the special nature of the constitutional court procedure, it is always better to hire a professional.”
Other relevant legislation and practice
19. The Family Act of 2003 (Obiteljski zakon, Official Gazette no. 116/03 with subsequent amendments), which was in force from 22 July 2003 until 1 November 2015, provided in sections 306 to 332 that proceedings for deprivation of legal capacity had to be conducted in accordance with the rules of non-contentious procedure. Section 272(1), which regulated the issue of costs in all proceedings concerning personal status, read as follows:
Section 272(1)
“In proceedings concerning personal status, the court shall decide on the costs of proceedings freely, taking into account the circumstances of the case and the outcome of the proceedings.”
20. The Scale of Advocates’ Fees (Tarifa o nagradama i naknadi troškova za rad odvjetnika, Official Gazette no. 142/12 with further amendments), which entered into force on 19 December 2012, provides that the costs of legal representation consist of services rendered by advocates, increased by VAT and the necessary expenses, and that clients are bound to pay them. It also provides that:
(i) submissions instituting proceedings before the Constitutional Court and other reasoned submissions containing factual and legal arguments are worth 500 points (section 27(1)); and
(ii) the value of one point is HRK 10 (section 50). INTERNATIONAL LAW
21. The relevant Article of the United Nations Convention on the Rights of Persons with Disabilities, reads as follows:
Article 13
Access to justice
“1. States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age‑appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages. 2. In order to help to ensure effective access to justice for persons with disabilities, States Parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff.”
COUNCIL OF EUROPE INSTRUMENTS
22. The relevant part of Recommendation No. R (81) 7 on Measures Facilitating Access to Justice, adopted by the Committee of Ministers on 14 May 1981 at its 68th session, reads as follows:
“Considering that the rights of access to justice and to a fair hearing as guaranteed under Article 6 of the European Convention on Human Rights, is an essential feature of any democratic society;
Considering that court procedure is often so complex, time-consuming and costly that private individuals, especially those in an economically or socially weak position, encounter serious difficulties in the exercise of their rights in member states;
Bearing in mind that an effective system of legal aid and legal advice, as provided for under Resolution (78) 8 of the Committee of Ministers, may greatly contribute to the elimination of such obstacles;
... Recommends the governments of member states to take or reinforce, as the case may be, all measures which they consider necessary with a view to the progressive implementation of the principles set out in the appendix to this recommendation. Appendix to Recommendation No. R (81) 7
 
Principles
... B. Simplification
... 4. No litigant should be prevented from being assisted by a lawyer ... Where, having regard to the nature of the matter involved, it would be desirable, in order to facilitate access to justice, for an individual to put his own case before the courts, then representation by a lawyer should not be compulsory.
... D. Cost of justice
13. Particular attention should be given to the question of lawyers’ and experts’ fees in so far as they constitute an obstacle to access to justice. Some form of control of the amount of these fees should be ensured. 14. Except in special circumstances a winning party should in principle obtain from the losing party recovery of his costs including lawyers’ fees, reasonably incurred in the proceedings.”
THE LAW
ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
23. The applicant complained that his right of access to a court had been violated because, even though the Constitutional Court had allowed his constitutional complaint, it had not awarded him his costs of legal representation. He relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
AdmissibilitySubmissions by the parties

(a)   The Government
24. The Government submitted that the applicant had failed to exhaust domestic remedies. 25. In particular, they pointed out that, while the applicant in his application to the Court had given detailed reasons as to why the Constitutional Court should have awarded him the costs of the proceedings, in his constitutional complaint he had not done so. He had not even submitted any invoices or other evidence that he had actually paid the costs claimed. 26. The Government explained that in Croatia no court fees or any other costs were charged for lodging a constitutional complaint, and that there was no obligation to be represented by an advocate in proceedings before the Constitutional Court. Such wide access to the Constitutional Court was the reason why the relevant legislation provided that each participant had to bear its own costs unless the Constitutional Court decided otherwise (see paragraph 15 above). Since the awarding of costs was thus an exception, complainants had to provide reasons justifying departure from the general rule. They had to explain why it had been necessary to obtain the assistance of an advocate and state the circumstances which could justify an award of costs (such as the complainant’s personal circumstances, financial situation or specific characteristics of the proceedings). 27. Alternatively, the Government argued that, following the Constitutional Court’s decision in his favour, the applicant could have sought reimbursement of the costs of his constitutional complaint in the resumed proceedings before the civil courts. However, he had not done so. 28. The Government explained that the domestic case-law had evolved since the Court’s decision in Bibić v. Croatia ((dec.), no. 1620/10, 28 January 2014). In support of their argument they furnished examples, including a Supreme Court decision whereby claims for costs of constitutional complaints had been granted in resumed proceedings before the civil courts, following the Constitutional Court’s decision in favour of the complainants (see paragraph 17 above). (b)   The applicant
29. The applicant replied that he had not been required to provide any reasons for his claim for costs and that there was no such requirement under the Constitutional Court Act or any other legislation. The exact amount of advocate’s fees in proceedings before the Constitutional Court were fixed in accordance with the Scale of Advocates’ Fees and he had been bound to pay them (see paragraph 20 above). Submitting invoices or other evidence that the fees had actually been paid had therefore also been unnecessary. 30. Furthermore, the applicant submitted that the Constitutional Court’s decision to allow his constitutional complaint had been based on the arguments advanced therein (see paragraphs 10 and 12 above). His representation by an advocate had therefore evidently been necessary. 31. As regards the Supreme Court decision relied on by the Government (see paragraphs 17 and 28 above), the applicant submitted that the circumstances of that case had been different from his in one crucial aspect: the plaintiff in that case had not asked the Constitutional Court for reimbursement of the costs of his constitutional complaint. 32. In this regard, the applicant pointed out that in Bibić (cited above) the Court had declared the application inadmissible precisely because the applicant had not sought reimbursement of the costs of her constitutional complaint before the Constitutional Court, having only done so in resumed proceedings before the civil courts after her constitutional complaint had been allowed. 33. If the Government’s argument that he should have sought reimbursement of his costs in the resumed proceedings before the civil courts (see paragraph 27 above) were to be accepted, the rule set out in section 23 of the Constitutional Court Act would be meaningless (see paragraph 15 above). 34. Lastly, the applicant saw no reason why a party to proceedings before the civil courts would have to reimburse the costs of a successful constitutional complaint by his or her opponent. Proceedings before the Constitutional Court were special proceedings with their own set of procedural rules and not a mere extension of proceedings before the civil courts with two opposing parties. Rather, their purpose was to review the constitutionality of decisions of the State (most often, judicial) authorities challenged by a constitutional complaint (see section 62(1) of the Constitutional Court Act cited in 16 above).

Outcome for Article 6: violation