FIRST SECTION

DECISION

Application no . 1620/10 Gabrijela BIBIĆ against Croatia

The European Court of Human Rights ( First Section ), sitting on 28 January 2014 as a Committee composed of:

Elisabeth Steiner, President, Mirjana Lazarova Trajkovska , Ksenija Turković , judges, and André Wampach , Deputy Section Registrar ,

Having regard to the above application lodged on 23 December 2009 ,

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 Gabrijela Bibić , is a Croatian national, who was born in 1943 and lives in Vukovar . She was represented before the Court by Mr S. Radobuljac and Ms L. Horvat , lawyers practising in Zagreb .

2. The Croatian Government (“the Government”) were represented by their Agent, Mrs Štefica 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 9 September 2003 the Vukovar Municipal Court ( Općinski sud u Vukovaru ) issued an enforcement order by which the applicant was ordered to pay a sum of money to the plaintiff , company T , in civil proceedings brought against her .

5. On 15 March 2006 the Vukovar Municipal Court rendered a judgment confirming its enforcement order of 9 September 2003.

6. On 12 July 2006 the Vukovar County Court ( Županijski sud u Vukovaru ) dismissed the applicant ’ s appeal and upheld the first-instance judgment.

7. On 24 August 2006 the applicant lodged a constitutional complaint herself .

8. On 6 October 2006 the applicant ’ s representative, S.R., lodged a constitutional complaint on her behalf.

9. N either of the constitutional complaints contained a request for reimbursement of the costs of the proceedings before the Constitutional Court.

10. On 24 June 2008 the Constitutional Court accepted the applicant ’ s complaint and quashed the impugned decisions, finding that the lower courts had wrongly applied the relevant laws and had therefore violated her right to equality before th e law, guaranteed b y Article 14 § 2 of the Constitution. The Constitutional Court noted that the applicant had been represented by S. R adoljubac .

11. In the resumed proceedings before the ordinary courts the plaintiff company withdrew its claim. Therefore, on 22 September 20 08 the applicant requested an award for the costs of the proceedings.

12. On 29 September 2008 the Vukovar Municipal Court established that the claim had been withdrawn and quashed its earlier enforcement order. As regards the costs of the proceedings, it ordered the plaintiff company to reimburse the costs the applicant had incurred in the proceedings before the ordinary courts. However, it rejected the applicant ’ s claim in respect of the costs of her legal representation before the Constitutional Court.

13. The relevant part of the decision reads:

“ ... decision on those expenses lies within the competence of the Constitutional Court ... the Constitutional Court accepted her constitutional complaint and quashed the judgment adopted by this court ... and the judgment by the Vukovar County Court ... and the case was remitted to this court for fresh examination. However, the costs in connection with the applicant ’ s constitutional complaint were not incurred during these civil proceedings or in connection with them ...”

14. This decision was upheld by the Vukovar County Court on 27 May 2009.

15. The applicant ’ s constitutional complaint against that decision was declared inadmissible on 26 November 2009, on the grounds that the contested decision on the costs of the proceedings had not concerned the merits of the case and as such was not susceptible to constitutional review.

B. Relevant domestic law and practice

The Constitutional Court Act

16. The relevant part of the Constitutional Court Act ( Ustavni zakon o Ustavnom sudu Republike Hrvatske , Official Gazette no. 49/2002 of 3 May 2002 ) reads as follows:

Section 23

“Each party to Constitutional Court proceedings shall bear his or her own costs, unless the Constitutional Court decides otherwise.”

Section 34

“Unless otherwise provided by this Constitutional Act, the Constitutional Court shall meaningfully apply , on a subsidiary basis, the provisions of the relevant procedural legislation of the Republic of Croatia”.

The Civil Procedure Act

17. The relevant part of the Civil Procedure Act ( Zakon o parničnom postupku , Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980, 69/1982, 58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991, and Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 58/1993, 112/1999, 88/2001, 117/2003, 88/2005, 2/2007, 84/2008, 123/2008, 57/2011, 148/2011, 25/2013, as in force at the relevant time, read as follows:

Section 151

“(1) The costs of proceedings involve disbursements made during, or in relation to, the proceedings.

(2) The costs of proceedings also include a fee for the services of an advocate and other persons entitled to a fee by law.”

Section 164

“(1) The court shall decide on a party ’ s request for reimbursement of the costs of proceedings without holding a hearing.

(2) A party shall specify expenses related to its claim.

(3) The claim for reimbursement of the costs of proceedings shall be made before the closure of the hearing which precedes the decision on the costs; if the decision is to be made without a prior hearing, the party shall request the reimbursement in its original claim .

(4) The decision on a claim for the costs of proceedings shall be rendered together with the final judgment or decision before that court.

... ”

Section 166

“ ...

(3) When a decision against which an appeal has been lodged is quashed and the case is remitted, the decision on the costs of the proceedings in respect of that appeal shall be left for the final decision on the merits .

... ”

Scale of l awyers ’ f ees

18. The relevant provisions of the Scale of Lawyers ’ Fees ( Tarifa o nagradama i naknadi troškova za rad odvjetnika , Official Gazette nos. 91/2004, 37/2005, 59/2007), as in force at the relevant time, read as follows:

Scale no. 27

“1. Submissions by which proceedings before the Constitutional Court are instituted – 500 points;

2. Other submissions during the proceedings – 50% of the fees from point 1;

3. Representation at hearings – fee from point 1;

4. For representation at hearings where only questions of procedure are addressed or where the proceedings are discontinued before examination of the main claim, a lawyer has the right to 50% of the fee under point 1.”

Scale no. 50

“The value of one point is 10 Croatian kunas .”

Practice of the Constitutional Court

19. In a number of decisions concerning the length of proceedings (nos. U-IIIA/854/2012, U-IIIA/4024/2011, U-IIIA/2828/2011 and U-IIIA/362/2009) in which the Constitutional Court accepted the applicants ’ length-of-proceedings complaints, their claim s for the reimbursement of the costs of the proceedings before it w ere dismissed as follows :

“ As regards the claim for the costs of [bringing] the constitutional complaint, the Constitutional Court notes that, pursuant to section 23 of the Constitutional Court Act, each party must bear his or her own costs, unless the Constitutional Court decides otherwise.”

20. In decision no. U-III-4558/2010 of 23 March 2011, in which the Constitutional Court declared the applicant ’ s constitutional complaint inadmissible, the applicant ’ s claim for the reimbursement of costs of the proceedings before it was dismissed as unsubstantiated :

“ As regards the claim for reimbursement of the costs of the proceedings before the Constitutional Court, the Constitutional Court notes that in such proceedings each party must bear his or her own costs, unless the Constitutional Court decides otherwise (section 23 of the Constitutional Court Act). In his constitutional complaint, the applicant failed to provide reasons on the basis of which the Constitutional Court c ould decide otherwise and make an award in respect of the costs of proceedings before it to the applicant.”

21. In decision no. U-III/66/2009 of 29 May 2013, in which, as in the present case, the Constitutional Court quashed the judgments of ordinary courts and remitted the case, the applicant ’ s claim for the reimbursement of the costs of the proceedings before it was dismissed as follows :

“As regards the claim for reimbursement of the costs of the proceedings before the Constitutional Court, the Constitutional Court notes that, pursuant to section 23 of the Constitutional Court Act, each party must bear his or her own costs, unless the Constitutional Court decides otherwise. Since the Constitutional Court did not decide otherwise, the applicant shall bear his own costs.”

COMPLAINTS

22. The applicant complained about the fact that she had had to bear the costs of her successful constitutional complaint .

THE LAW

23 . The applicant complained about her inability to retrieve the legal costs of her successful constitutional complaint. The Court has examined this complaint under Article 6 of the Convention and Article 1 of Protocol No. 1 thereto, the relevant parts of which read as follows:

Article 6

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

Article 1 of Protoc o l No. 1

“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.”

1. The parties ’ arguments

24 . T he Government firstly argu ed that the guarantees of Article 6 of the Convention did not apply ratione materiae to decisions on the costs of proceedings, since such decisions did not concern the determination of civil rights and obligations. It relied on the Grand Chamber judgment Athanassoglou and Others v. Switzerland ( [GC], no. 27644/95, § 43, ECHR 2000 ‑ IV ) and the other cases referred to there in . They also argued that the complaint under Article 1 of Protocol No. 1 had not been submitted by the applicant.

25. They further contended that she had not asked for reimbursement of the costs incurred before the Constitutional Court in her constitutional complaint, had failed to provide evidence that the impugned costs had actually been incurred and had not requested an award for pecuniary damage from the Court. For those reasons she could not be considered to be the victim of a violation of Article 1 of Protocol No. 1 to the Convention.

26. The Government also argued that there had been no ne ed for the applicant to be legal ly represent ed before the Constitutional Court. The applicant had lodged her first constitutional complaint unrepresented and the Constitutional Court had primarily examined that complaint. There had been no need for the applicant ’ s counsel to lodge a constitutional complaint as well, in particular since he had not raised any new issue.

27. The applicant argued that her constitutional complaint had been the only remedy available against the errors of the ordinary courts. Thus, the constitutional complaint and related costs had been necessary. She further argued that , while determining the costs of the proceedings, the ordinary courts should have, by way of subsidiarity, applied section 166 ( 3 ) of the Civil Procedure Act on proceedings before the Constitutional Court.

28. The applicant also argued that the costs of her representation before the Constitutional Court had clearly been incurred, given that the Constitutional Court had explicitly recognized her representative. Finally, she argued that it would have be en futile to address a claim for reimbursement of the costs of the proceedings to the Constitutional Court, since it had frequently and consistently refused to award costs of proceedings to winning parties.

2. The Court ’ s assessment

29. The Court does not consider it necessary to exa mine all the arguments raised by the parties since the application is in any event inadmissible for the following reasons.

30 . The Court first notes that the dispute in the present case arose about the costs of the applicant ’ s legal representation before the Constitutional Court.

31 . As regards the applicant ’ s decision to be legally represented before the Constitutional Court, the Court does not find it unwarranted , given that the Constitutional Court decides on complex questions concerning the protection of fundamental rights and freedoms . For persons without legal background and experi ence, such matters may be difficult to grasp (see, mutatis mutandis , Pham Hoang v. France , 25 September 1992, § 40 , Series A no. 243 ) . The Court further considers that it has not been shown by the Government that the legal fees incurred in the case were excessive. In fact, they were invoiced in accordance with the applicable Scale of Lawyers ’ Fees and the Constitutional Court recognized in its decision that the applicant had been represented by S. Radoljubac , an attorney-at-law. In such circumstances, the Court considers that the costs of legal representation before the Constitutional Court were not incurred without proper justification.

32. However, the Court cannot disregard the fact that the applicant failed to lodge a request for reimbursement of those costs with the Constitutional Court.

33. In this connection, the Court notes that section 33 of the Constitutional Court Act vested the Constitutional Court with a clear prerogative on decisions concerning the costs incurred before it. In the present case, the absence of a request for reimbursement meant that the Constitutional Court was unable to award the costs to the applicant.

34. After the Constitutional Court remitted the applicant ’ s case and a final judgment was issued in the resumed proceedings, the applicant lodged a request for reimbursement of all the costs incurred during the proceedings with the Vukovar Municipal Court, including the costs of her legal representation before the Constitutional Court. The Vukovar Municipal Court dismissed the applicant ’ s request in the impugned part, arguing that such costs could only have been awarded by the Constitutional Court. With the aforementioned section 33 of the Constitutional Court Act in mind, the Court accepts the reasoning of the Vukovar Municipal Court.

35 . In these circumstances the Court finds that the applicant ’ s complaint concerning the fact that the costs she incurred before the Constitutional Court were not awarded to her does not disclose any appearance of a violation of the provisions of the Convention, is therefore to be considered a being manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

André Wampach Elisabeth Steiner Deputy Registrar President