FIRST SECTION

CASE OF Å TEFEK v. CROATIA

(Application no. 65173/17)

JUDGMENT

STRASBOURG

2 June 2022

This judgment is final but it may be subject to editorial revision.

In the case of Å tefek v. Croatia,

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

Péter Paczolay, President, Raffaele Sabato, Davor Derenčinović, judges, and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 65173/17) 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”) on 30 August 2017 by a Croatian national, Mr Željko Štefek, born in 1956 and living in Donji Lapac (“the applicant”) who was represented by Mrs M. Miše , a lawyer practising in Trogir;

the decision to give notice of the application to the Croatian Government (“the Government”), represented by their Agent, Mrs Š. Stažnik;

the parties’ observations;

Having deliberated in private on 3 May 2022,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1. The applicant was employed as an ambulance driver with the Korenica Health Centre (“the employer”), where part of his working time was spent on-call ( pripravnost ).

2 . The case concerns the allegedly excessive costs of civil proceedings which he was ordered to pay as a result of a civil action he had brought against his employer seeking various employment-related benefits (such as on-call duty; work on days before non-working days; shift work; overtime work; work on Saturdays, Sundays, and public holidays; night work; unused leave).

3 . During the proceedings, an expert evaluation specified that the difference in the compensation to the applicant for being on-call on days before non-working days and on public holidays amounted to 12,381.26 Croatian kunas (HRK). In a supplement to those findings, the expert confirmed that compensation for overtime work and days off during the applicant’s on-call duty amounted to HRK 254,141.12, but that such calculation had no basis in any of the payroll and salary compensation regulations applicable to the applicant.

4 . As a result, the applicant specified his claim in line with the expert evaluation seeking payment of HRK 254,141.12 (approximately 34,500 euros (EUR)) and made a subsidiary (alternative) claim – a possibility existing under section 188 of the Civil Procedure Act – for payment of HRK 12,381.26 (approximately EUR 1,600).

5 . On 28 June 2016 the first-instance court accepted the applicant’s subsidiary (alternative) claim in full and awarded him HRK 12,381, at the same time dismissing his primary claim for the amount of HRK 254,141 because the applicable regulations did not provide for compensation for days off during on-call duty. The court also ordered the defendant to reimburse the applicant the full amount of costs of proceedings he had incurred, that is HRK 34,750 (approximately EUR 4,700).

6 . On appeal, on 2 February 2017 the Osijek County Court upheld the first-instance judgment as regards the merits, but reversed it in respect of costs, ordering the applicant to reimburse the defendant costs of proceedings in the amount of HRK 13,375 (approximately EUR 1,800). Taking into account as the value of the subject ‑ matter in dispute both the primary and the subsidiary (alternative) claims, the second-instance court held that the applicant had succeeded only with a minor amount of his claim and that he should therefore reimburse the employer’s costs of proceedings in full. The judgment was served on the applicant’s lawyer on 16 March 2017 and the applicant pursued no further remedies.

7. The applicant complained, under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention, that the amount of costs he had been ordered to pay was unreasonably high. He also complained under Article 13 that he had not had an effective remedy in this respect, and under Article 14 of the Convention that he had been discriminated against on account of the diverging jurisprudence of the domestic courts.

THE COURT’S ASSESSMENT

8. The Government argued that the applicant had failed to exhaust domestic remedies in that he never lodged a constitutional complaint against the second-instance judgment.

9. The Court has already noted that the Constitutional Court occasionally, though not consistently, examined complaints concerning costs of proceedings raised under section 62 of the Constitutional Court Act (see Čolić v. Croatia , no. 49083/18, § 29, 18 November 2021 ). However, according to the information the Government provided in its Revised Action Report submitted to the Committee of Ministers within the framework of the execution of previous judgments concerning unreasonable costs of proceedings against Croatia (see Klauz v. Croatia, no. 28963/10, 18 July 2013; and Cindrić and Bešlić v. Croatia , no. 72152/13, 6 September 2016), a constitutional complaint was to be considered an effective remedy for complaints concerning costs of proceedings as of the Constitutional Court’s decision dated 6 June 2017. Seeing that the appeal decision in the applicant’s case was served on the applicant’s lawyer on 16 March 2017 (see paragraph 6 above), he could not have been required to exhaust a remedy which at the material time did not offer him reasonable prospects of success (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 73-74, 25 March 2014). Consequently, the Government’s objection must be dismissed.

10. The Court further notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

11. The general principles on access to court in costs-of-proceedings cases have been summarised in Čolić (cited above, §§ 39-44). In that case the Court affirmed that unreasonable costs of proceedings may raise an issue of access to court primarily in cases in which a party succeeded with the grounds of their civil claim, but not with its entire amount. The Court has also held that in such cases weighty reasons would need to be put forward to justify the fact that the costs of proceedings were equal or higher to the plaintiff’s financial award in the case (see Čolić , cited above, § 46).

12. In the present case, the Court firstly notes that the applicant brought a well-founded claim against his employer seeking payment of employment ‑ related benefits (see paragraph 2 above). Since it had not been clear whether or not under the relevant employment regulations he had been entitled to payment for overtime work during his on-call duty, the applicant used the existing procedural mechanism devised precisely for such situations of uncertainty and brought a subsidiary (alternative) claim with the court claiming, on the one hand, the higher amount which would include such compensation and, alternatively, the lower amount which excluded such compensation. Given that both his claims had been based on expert findings (see paragraphs 3 and 4 above), it cannot be said that the applicant’s claim had been unjustifiably inflated (see ÄŒolić , § 55, and contrast Klauz , § 93, both cited above). He was ultimately entirely successful both with the grounds of his alternative claim and its amount, the domestic courts having concluded that he had not been entitled to paid overtime work during his on-call duty (see paragraph 5 above).

13. The Court considers that in such circumstances there should be weighty reasons to justify the fact that the costs of proceedings the applicant was ordered to pay his employer were higher than his financial award in the case (see Čolić , cited above, § 46). The Government argued that this was due to the fact that the applicant had brought subsidiary (alternative) civil claims and that he lost his primary claim with the higher amount. However, they did not submit any domestic jurisprudence demonstrating how the domestic courts determined the value of the subject-matter in dispute in cases where plaintiffs in civil proceedings, like the applicant, bring several civil claims in one set of proceedings under section 188 of the Civil Procedure Act.

14. For his part, the applicant provided two judgments in which the domestic courts reached a diametrically opposite conclusion to the one in his case. Namely, in cases of two of his colleagues who had lodged an identical claim to his with the same outcome on the merits, another appeal court dismissed their employer’s appeal and awarded his colleagues full reimbursement of their costs of proceedings.

15. It would further transpire from section 188(1) and (2) in conjunction with section 37 of the Civil Procedure Act, as well as from further jurisprudence available to the Court (for instance, the Supreme Court’s decision Rev-961/1995 of 4 February 1999, as well as the Varaždin County Court’s decision Gž 1085/09-2 of 18 November 2009) that where a plaintiff brings subsidiary (alternative) claims and does not request the court to award him or her both amounts, but only one or the other, the value of the subject ‑ matter in dispute of the two claims is not to be cumulated.

16. It follows that the appeal court’s approach in the applicant’s case, where it cumulated the applicant’s two alternative claims for the purposes of determining his success in the proceedings not only resulted in the absurd outcome of him being ordered to pay his employer’s costs of proceedings in a higher amount than he had been awarded in employment-related benefits (compare Čolić , cited above, § 59), but also appears to have been at odds with the domestic law and jurisprudence on the matter.

17. The foregoing consideration are sufficient for the Court to conclude that there has been a violation of Article 6 § 1 of the Convention.

18. The applicant also complained under Article 1 of Protocol No. 1 to the Convention that the amount of costs he had been ordered to pay was unreasonably high, under Article 13 that he had not had an effective remedy in this respect, and under Article 14 of the Convention that he had been discriminated against on account of the diverging jurisprudence of the domestic courts.

19. Having regard to the facts of the case, the submissions of the parties, and its findings above, the Court considers that it has examined the main legal questions raised in the present application and that there is no need to give a separate ruling on the admissibility and merits of the applicant’s remaining complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

20. The applicant claimed EUR 6,465 in respect of pecuniary damage, which corresponded to EUR 1,800 that he had been ordered to pay in costs to his employer and EUR 4,665 as costs which he himself had incurred in the domestic proceedings and which had never been reimbursed to him. He further claimed EUR 1,500 in respect of non-pecuniary damage, and EUR 820 in respect of costs and expenses incurred before the Court.

21. The Government contested those amounts. They did not consider the costs which the applicant had incurred during domestic proceedings to be part of pecuniary damage and stressed that, in any event, the applicant did not submit proof that he had in fact ever paid any costs to the defendant.

22. The Court has found a violation of the applicant’s Convention rights on account of the costs he had to pay to the defendant in his case in the amount of HRK 13,375 (approximately EUR 1,800). That judgment having become final and enforceable, the Court awards the applicant the said amount in respect of pecuniary damage in full. As regards the remainder of the applicant’s claim for pecuniary damage, which as pointed out by the Government, actually concerns costs and expenses incurred by the applicant before the domestic courts, the Court finds it more appropriate to consider them in the context of his claim for costs and expenses below.

23. The Court further considers that the applicant must have suffered some frustration and anguish as a result of the appeal court’s decision on costs in his case and therefore awards the applicant EUR 1,500 in respect of non ‑ pecuniary damage, plus any tax that may be chargeable on that amount.

24. Finally, as regards costs and expenses, having regard to the documents in its possession, the Court considers it reasonable to award the applicant EUR 2,400 covering costs and expenses incurred both before the domestic courts and before this Court, plus any tax that may be chargeable to the applicant on that amount.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 1,800 (one thousand eight hundred euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(ii) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii) EUR 2,400 (two thousand four hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 2 June 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Liv Tigerstedt Péter Paczolay Deputy Registrar President