FIRST SECTION

DECISION

Application no . 67405/10 Branka TOPOLOVÄŒAN against Croatia

The European Court of Human Rights (First Section), sitting on 11 December 2012 as a Chamber composed of:

Isabelle Berro-Lefèvre , President, Nina Vajić , Anatoly Kovler , Khanlar Hajiyev , Mirjana Lazarova Trajkovska , Julia Laffranque , Linos-Alexandre Sicilianos , judges, and Søren Nielsen , Section Registrar ,

Having regard to the above application lodged on 4 October 2010,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Ms Branka Topolovčan , is a Croatian national, who was born in 1962 and lives in Koprivnica . She was represented before the Court by Mr D. Ostović , a lawyer practising in Vinkovci .

2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik .

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. On 1 October 2008 the Koprivnica Municipal Court ( Općinski sud u Koprivnici ) found the applicant guilty of causing the death of her son through negligence, but it did not impose a sentence on the grounds that the applicant had suffered enough as a result of the events in question.

5. In the same decision it was ordered that the costs of the proceedings were to be borne by the Koprivnica Municipal Court under Article 123 § 1 of the Code of Criminal Procedure.

6. The applicant lodged an appeal against the judgment before the Koprivnica County Court ( Županijski sud u Koprivnici ) on 12 November 2008.

7. However, on 24 December 2008 the Koprivnica County Court dismissed the applicant ’ s appeal and upheld the judgment of the Koprivnica Municipal Court.

8. On 27 February 2009 the applicant submitted a claim for costs and expenses incurred in the criminal proceedings against her to the Koprivnica Municipal Court. These costs and expenses concerned the costs of her legal representation by a privately hired lawyer.

9. On 20 March 2009 the Koprivnica Municipal Court declared the applicant ’ s claim for costs and expenses inadmissible as being lodged out of time. The relevant part of the decision reads:

“This court holds that the defence lawyer was not entitled to submit his claim for costs and expenses after he had received the appellate judgment, but rather had to do so before the adoption of the first-instance judgment because Article 120 § 2 of the Code of Criminal Procedure only allows the authorised person to submit an itemised list of costs up to three months after the final judgment has been served on him or her, but not a claim for costs and expenses.”

10. In her appeal of 27 March 2009 the applicant argued that the decision of the Koprivnica Municipal Court was contrary to the relevant provisions of the Code of Criminal Procedure and the well ‑ established practice of the domestic courts by which a claim for costs and expenses could be lodged within three months after the final judgment.

11. On 11 May 2010 a three-judge panel of the Koprivnica Municipal Court dismissed the applicant ’ s appeal, holding that the costs and expenses arising from the applicant ’ s representation by a privately hired lawyer had to be borne by the applicant herself as she had been found guilty on the charges against her. The relevant part of the decision reads:

“ ... it is to be noted that by the [first-instance] judgment ... Article 123 § 1 of the Code of Criminal Procedure was wrongly applied when it was decided that the costs of the proceedings were to be borne by the court. This is because the accused was found guilty, so the costs [of the proceedings] are to be considered under Article 122 of the Code of Criminal Procedure and not Article 123 of [that Code]. In case of the application of Article 122 § 4 of the Code of Criminal Procedure, the accused can be excused from the obligation to pay, in total or partially, the costs and expenses of the criminal proceedings ... as well as costs of the officially assigned lawyer. [The applicant ’ s lawyer] D.O. was not her officially assigned lawyer but a lawyer of her own choosing. Therefore his costs and expenses, as the accused was found guilty, cannot be borne by the court.”

B. Relevant domestic law and practice

Code of Criminal Procedure

12. The relevant part of the Code of Criminal Procedure ( Zakon o kaznenom postupku – Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002 and 62/2003, 178/2004 and 115/2006) reads:

Article 119

“(1) The costs of criminal proceedings are expenses incurred by reason of criminal proceedings from their institution to their termination, including the costs of undertaking investigatory actions before an investigation.

(2) The costs of criminal proceedings shall consist of:

(1) expenses of witnesses, expert witnesses, interpreters and experts, the expense [of obtaining] stenographic notes or a technical recording, and expenses of judicial review;

(2) expenses of transportation of the defendant;

(3) expenses of bringing the defendant or arrested person before the court;

(4) expenses of the transportation of officials and their travelling expenses;

(5) expenses of medical treatment of a defendant who is not entitled to health insurance while he is in detention or in a medical institution by virtue of a judicial decision, and expenses of child delivery;

(6) a lump sum;

(7) fees and necessary expenses of the defence counsel, necessary expenses of a private prosecutor or subsidiary prosecutor and their legal guardians, and fees and necessary expenses of their legal representatives; and

(8) necessary expenses of the injured party and his legal guardian and fees and necessary expenses of his legal representative.”

Article 120

“(1) Each judgment shall contain, in addition to a decision terminating the criminal proceedings, a decision on the costs and expenses of the proceedings and their amount.

(2) Where the information concerning the amount of expenses is missing, a separate decision concerning costs and expenses shall be adopted by an investigating judge, a single judge or the president of a panel when such information has been submitted. A claim containing information on the amount of costs and expenses may be lodged up to three months after a final judgment or decision has been served on a person who has the right to lodge such a claim.”

Article 122

“(1) When the court finds the defendant guilty, it shall state in the judgment that he must pay the costs of the criminal proceedings.

...

(4) The court may, in a decision on costs, decide that the defendant shall not pay the entire or partial sum of the costs of the criminal proceedings referred to in Article 119 paragraph 2 subparagraphs 1 to 6 of this Code and the fee and necessary expenses of any officially appointed defence counsel if payment of these costs could imperil the maintenance of the defendant or persons he is bound to maintain. If these circumstances are determined after the decision on costs was adopted, the president of the panel may, by a separate decision, dispense the defendant from the duty to bear the costs of the criminal proceedings.”

Article 123

“(1) When criminal proceedings are discontinued or when a judgment of acquittal or a judgment dismissing the charge(s) is adopted, the court shall order that the costs of the criminal proceedings referred to in Article 119 paragraph 2 subparagraphs 1 to 5 of this Code, as well as the necessary expenses of the defendant and the necessary expenses and fees of the defence counsel, shall be paid from budget funds ... ”

Practice of the Supreme Court

13. In decisions nos. Kzz-14/1998-2 of 16 September 1999, concerning costs and expenses of representation by a legal aid lawyer, and I Kž 982/05− 6 of 6 June 2007, concerning costs and expenses of representation by a privately hired lawyer, where the criminal proceedings had been discontinued because of the death of the accused, the Supreme Court held that a defence lawyer was not required to submit a claim for costs and expenses before the first-instance judgment was adopted, but was required to do so within three months of a final judgment being served on him or her.

COMPLAINTS

14. The applicant complained, under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, about the fact that her claim for costs and expenses incurred in the criminal proceedings against her had been dismissed as lodged out of time, contrary to the established practice of the domestic courts.

THE LAW

1. Article 6 § 1 of the Convention

15. The applicant relied on Article 6 § 1 of the Convention which, in so far as relevant, reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

16. The applicant contended that it had been ordered by the final judgment of the Koprivnica Municipal Court that the costs and expenses of the criminal proceedings against her should be borne by that court under Article 123 § 1 of the Code of Criminal Procedure. However, her claim for costs and expenses concerning her legal representation had been dismissed as being lodged out of time, although she had submitted it within three months of the judgment becoming final.

17. The Government argued that the applicant did not have victim status, as she had failed to prove that she had actually paid the costs of her legal representation. Consequently, she also did not have standing before the Court. In any event, the Government pointed out that under the relevant domestic law the applicant could not claim costs and expenses for legal representation by a privately hired lawyer when she had been found guilty in the criminal proceedings against her.

18. The Court finds that it is not necessary to address all of the Government ’ s objections, as the application is in any event inadmissible for the following reasons .

20. In this respect the Court notes that the applicant ’ s claim for costs and expenses was solely related to the costs of her legal representation by a privately hired lawyer in the criminal proceedings in which she was found guilty on the charges against her, but in which the domestic courts did not impose a sentence on the grounds that the applicant had suffered enough as a result of the events in question.

21. The Court observes that Article 123 § 1 of the Code of Criminal Procedure only provides for reimbursement of the costs and expenses of representation by a privately hired lawyer if the criminal proceedings were discontinued or where a judgment of acquittal or a judgment dismissing the charges was adopted. In addition, Article 122 §§ 1 and 4 of the Code of Criminal Procedure provide that an accused who was found guilty in criminal proceedings may be exempted from the obligation to bear the costs and expenses of the criminal proceedings, but may not be exempted from paying the costs of his or her legal representation by a privately hired lawyer (see paragraph 12).

22. In the present case, the Court is aware of the obviously erroneous first-instance decision of the Koprivnica Municipal Court concerning the applicant ’ s request for reimbursement of the costs of her legal representation. In dismissing the applicant ’ s claim as being lodged out of time, that court based its decision on Article 123 § 1 of the Code of Criminal Procedure, although the applicant had in fact been found guilty in the criminal proceedings against her and therefore had not been entitled at all to claim the costs and expenses of representation by her privately hired lawyer. Consequently, the provision establishing the time period in which a claim for reimbursement of the costs and expenses of representation by a privately hired lawyer could be made was inapplicable to the applicant ’ s claim. However, this error was rectified by the appellate decision of Koprivnica Municipal Court, which expressly relied on Article 122 §§ 1 and 4 of the Code of Criminal Procedure in dismissing the applicant ’ s claim for reimbursement of the costs and expenses of her legal representation (see paragraph 11).

23. Furthermore, in accordance with Article 19 of the Convention, the Court ’ s task is to ensure the observance of the obligations undertaken by the parties in the Convention. In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by the domestic courts, except when it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention (see Garcia Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I). In the present case, the Court considers that the applicant ’ s complaints do not disclose any appearance of arbitrariness.

24. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

2. Article 1 of Protocol No. 1

25. The applicant also complained under Article 1 of Protocol No. 1 to the Convention, which reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

26. The Court observes in the present case that the applicant was convicted by a final judgment in the criminal proceedings against her and was not entitled under the relevant domestic law to reimbursement of the costs and expenses of her legal representation by a privately hired lawyer. In such circumstances the Court does not consider that there has been any interference by the State with the applicant ’ s possessions within the meaning of Article 1 of Protocol No. 1.

27. It follows that this complaint must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Søren Nielsen Isabelle Berro-Lefèvre Registrar President