Published on 3 April 2023

SECOND SECTION

Application no. 60272/21 Alka MOSKALJ against Croatia lodged on 7 December 2021 communicated on 17 March 2023

SUBJECT MATTER OF THE CASE

The application concerns the Constitutional Court’s decision to award the applicant compensation for the excessive length of proceedings but to refuse to award her the costs of her legal representation which exceeded the amount of that compensation.

In particular, the Constitutional Court awarded the applicant 5,000 Croatian kunas (HRK), that is, some 664 euros (EUR) in compensation for the length of the enforcement proceedings which concerned a handover of her child. However, at the same time, that court refused her request for reimbursement of the costs of drafting her constitutional complaint, which amounted to HRK 6,125 (EUR 813), and the costs incurred in relation to the other length-of-proceedings remedies she had to use beforehand and which, according to the applicant, amounted to HRK 2,500 (EUR 332).

The applicant complains under Articles 6 § 1 and 13 of the Convention that the Constitutional Court’s refusal to award her the costs of her legal representation had a deterrent effect on the exercise of her right of access to a court and rendered the length-of-proceedings remedies she resorted to ineffective in her case. She also complains under Article 1 of Protocol No. 1 that the Constitutional Court’s refusal entailed a violation of her right to the peaceful enjoyment of her possessions.

QUESTIONS TO THE PARTIES

1. Is the right to a fair hearing within a reasonable time a “civil” right within the meaning of Article 6 § 1 of the Convention? Accordingly, is that Article applicable to the non-contentious remedial proceedings and the ensuing proceedings before the Constitutional Court in which the applicant complained of the excessive length of enforcement proceedings for the handover of her child?

2. If Article 6 is applicable, has there been a breach of the applicant’s right of access to a court on account of the Constitutional Court’s refusal to award her the costs of her legal representation before that court and such costs incurred by using the other domestic length-of-proceedings remedies beforehand (see, for example, Dragan Kovačević v. Croatia , no. 49281/15, §§ 67-85, 12 May 2022; Klauz v. Croatia , no. 28963/10, §§ 76-97, 18 July 2013; and Čolić v. Croatia , no. 49083/18, §§ 39-60, 18 November 2021)?

3. If Article 6 is not applicable to the remedial proceedings as such, has there been a breach of Article 13 of the Convention, taken in conjunction with Article 6 thereof, regarding the length of the initial enforcement proceedings, on account of the Constitutional Court’s refusal to award the applicant those costs (compare Cocchiarella v. Italy [GC], no. 64886/01, § 92, ECHR 2006 ‑ V)? In particular, were the domestic remedies the applicant resorted to in order to complain of the excessive length of the enforcement proceedings in question rendered ineffective by the fact that she was unable to recover those costs?

4. Was the Constitutional Court’s refusal to award the applicant the costs in question in breach of her right to the peaceful enjoyment of her possessions guaranteed by Article 1 of Protocol No. 1 to the Convention (see Zustović v. Croatia , no. 27903/15, § 99, 22 April 2021), especially having regard to the fact that those costs were higher than the compensation that court awarded her (see, mutatis mutandis , Klauz , cited above, §§ 108-109)?