Communicated on 13 November 2019

FIRST SECTION

Application no. 65173/17 Željko ŠTEFEK against Croatia and 2 other applications – see appended list

S TATEMENT OF FACTS

The applicants are Croatian nationals. The first applicant, Mr Ž eljko Å tefek , was born in 1956 and is repr esented before the Court by Mrs M. MiÅ¡e , a lawyer practising in Trogir . The second applicant, Mr Zoran Zečić , was born in 1967 and is repr esented before the Court by Mrs A. Vlahini ć , lawyer practising in Zagreb. The third appl icant, Mr Ljupko ÄŒolić , was born in 1939 and is repres ented before the Court by Mr E. Geber, a lawyer practising in Zagreb.

The facts of the cases, as submitted by the applicants, may be summarised as follows.

The first applicant brought a civil action in the Gospi ć Municipal Court ( Op ć inski sud u Gospi ć u ) against his empl oyer seeking payment for his on ‑ call duty and, alternatively, compensation for holidays obtained during the time he had been on-call.

On 28 June 2016 the first-instance court awarded him approximately 12,000 Croatian kunas (HRK; approximately 1,600 euros (EUR)) in respect of payment for on-call duty, at the same time dismissing his alternative request in the amount of approximately HRK 254,000 (approximately EUR 34,500) for compensation for holidays obtained during on-call duty finding that the applicable regulations did not provide for such a right. The court also ordered his employer to reimbourse the applicant costs of the proceedings in the amount of HRK 34,750 (approximately EUR 4,700).

On appeal, on 2 February 2017 the Osijek County Court ( Ž upanijski sud u Osijeku ) upheld the first-instance judgment as regards the merits, but reversed it in respect of costs, ordering the applicant to reimbourse his employer costs of proceedings in the amount of HRK 13,375 (approximately EUR 1,800).

On 1 June 2001 the second applicant brought a civil action in damages against an insurance company in the Zagreb Municipal Civil Court ( Općinski građanski sud u Zagrebu ), seeking HRK 35,000 (approximately EUR 4,700) in respect of non-pecuniary damage for injuries he had sustained in a car accident.

When the defendant pointed out that an out-of-court settlement the second applicant had accepted in respect of pecuniary damage also divested him of the right to claim further non-pecuniary damage, on 1 July 2003 the second applicant brought another civil action against the same insurance company seeking annulment of that part of the settlement, without specifying the amount of subject-matter in dispute.

On 18 October 2005 the court decided to join the two sets of proceedings.

During the proceedings, and in view of the conclusions of a medical expert opinion, the second applicant lowered his initial claim for compensation to HRK 16,470 (approximately EUR 2,225).

On 30 April 2013 the Municipal Civil Court awarded the applicant HRK 9,470 (approximately EUR 1,280) in damages and HRK 7,070 (approximately EUR 950) in costs. At the same time, it dismissed the remainder of the applicant ’ s compensation claim and ordered him to pay the defendant HRK 20,314 (approximately EUR 2,745) in costs. In doing so, the court calculated the value of the claim in dispute of the second applicant ’ s action for annulment of the settlement ex officio on the basis of HRK 50,000 (approximately EUR 6,750).

On 17 February 2015 Zagreb County Court ( Županijski sud u Zagrebu ) dismissed the applicant ’ s appeal.

On 14 May 2015 the second applicant lodged a constitutional complaint, alleging violations of his rights to a fair trial and to the protection of property.

On 31 May 2017 the Constitutional Court ( Ustavni sud Republike Hrvatske ) declared the second applicant ’ s constitutional complaint inadmissible as manifestly ill-founded and served its decision on his representative on 12 July 2017.

On 25 November 2003 the third applicant brought a civil action in damages caused by a physical assault of an individual in the Zagreb Municipal Civil Court . He sought a total of 32.200,00 Croatian kunas (HRK; approximately 4,350 euros (EUR)). The defendant challenged the applicant ’ s claim as unfounded and excessive.

On 29 December 2009 the court obtained an expert medical opinion, which estimated the amount of damage the third applicant had sustained. In line with that opinion, on 8 February 2010, the third applicant ’ s representative reduced his initial claim to HRK 12.860,00 (approximately EUR 1,730).

On 20 December 2011 the Municipal Civil Court gave judgement, awarding the third applicant a total of HRK 8.360,00 (approximately EUR 1,130) in damages and HRK 9.750,80 (approximately EUR 1,310) in costs of the proceedings. At the same time, it dismissed the remainder of the third applicant ’ s claim and ordered him to pay the defendant HRK 14.886,42 (approximately EUR 2,000) in costs.

On appeal, on 20 May 2014, the Zagreb County Court reversed the part of the judgement concerning the costs awarding the third applicant an additional HRK 6.906,97 (approximately EUR 930) on this account. In particular, the appeal court took into account the fact that the applicant had sued for damages on account of physical assault, that the defendant had no additional costs on account of the initially higher claim and that the costs of the proceedings had mainly been incu rred in order to prove the well ‑ foundedness of the claim and not its exact amount.

On 11 February 2015 the Supreme Court ( Vrhovni sud Republike Hrvatske ) examined an extraordinary appeal on points of law ( izvanredna revizija ) lodged by the defendant and upheld the first-instance court ’ s decision on the costs. It also ordered the applicant to pay the defendant a further amount of HRK 1,875 (approximately EUR 250) with respect to the costs of the proceedings regarding the appeal of points of law.

On 14 March 2016 the applicant lodged a constitutional complaint against the Supreme Court ’ s judgment, alleging violations of his rights to a fair trial and to protection of property.

On 29 March 2018 the Constitutional Court declared the third applicant ’ s constitutional complaint inadmissible and served its decision on his representative on 12 April 2018.

COMPLAINTS

1. The applicants complain under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention about the lack of access to a court and the violation of their property rights due to the excessive award of costs of the proceedings to the defendants.

2. The first applicant also complains under Article 6 § 1 and Article 14 of the Convention about the lack of legal certainty because different appeal courts in cases identical to his decided the costs of proceedings differently.

3. Finally, the first applicant complains under Article 13 of the Convention that, pursuant to their practice neither the Supreme Court nor the Constitutional Court were competent to examine decisions on costs of proceedings, and that he therefore had no effective remedy to challenge the costs order imposed on him by the second-instance court.

COMMON QUESTIONS

1. Has the allegedly excessive award of costs of proceedings to the respective defendants violated the applicants ’ right of access to court guaranteed under Article 6 § 1 of the Convention and/or their right to the enjoyment of possessions in breach of Article 1 of Protocol No. 1 to the Convention (cf. Klauz v. Croatia , no. 28963/10, 18 July 2013; Cindrić and Bešlić v. Croatia , no. 72152/13, 6 September 2016)?

2. What is the existing court practice on calculation of costs of proceedings in cases like the applicants ’ , where a party succeeds with the grounds but not with the entire amount of a civil claim? In particular, is the opinion of the Civil Division of the Supreme Court of 6 June 1980 (cited Klauz v. Croatia , no. 28963/10, § 25, 18 July 2013) still valid? If so, are those (and/or other) applicable rules on costs of proceedings consistently applied by the domestic courts?

CASE SPECIFIC QUESTIONS (application no. 65173/17)

1. Did the first applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, has the right to legal certainty been respected in view of the divergent case-law of the second-instance courts as regards costs of proceedings ( Beian v. Romania (no. 1), no. 30658/05, 6 December 2007; Ştefănică and Others v. Romania, no. 38155/02, 2 November 2010)?

2. Has the first applicant been subject to discriminatory treatment contrary to Article 14 of the Convention, in that other persons in similar situations were not ordered to pay costs of the proceedings to the opposing party?

3. Did the first applicant have at his disposal an effective domestic remedy for his Convention complaints, as required by Article 13 of the Convention?

APPENDIX

No.

Application no.

Lodged on

Applicant

Date of Birth

Place of Residence

Represented by

1

65173/17

30/08/2017

Željko ŠTEFEK

07/06/1956

Donji Lapac

Merica MIÅ E

2

3425/18

10/01/2018

Zoran ZEČIĆ

23/12/1967

Zagreb

Alenka VLAHINIĆ

3

49083/18

12/10/2018

Ljupko ČOLIĆ

05/06/1939

Zagreb

Eduard GEBER