European Court of Human Rights

You are here: BAILII >> Databases >> European Court of Human Rights >> KLAUZ v. CROATIA - 28963/10 - Chamber Judgment [2013] ECHR 708 (18 July 2013)
URL: http://www.bailii.org/eu/cases/ECHR/2013/708.html
Cite as: [2013] ECHR 708

[New search] [Contents list] [Printable RTF version] [Help]

FIRST SECTION

CASE OF KLAUZ v. CROATIA

(Application no. 28963/10)

JUDGMENT

STRASBOURG

18 July 2013

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Klauz v. Croatia,

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

          Isabelle Berro-Lefèvre, President,
          Elisabeth Steiner,
          Khanlar Hajiyev,
          Linos-Alexandre Sicilianos,
          Erik Møse,
          Ksenija Turković,
          Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 25 June 2013,

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

PROCEDURE

The case originated in an application (no. 28963/10) 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”) by a Croatian national, Mr Ivan Klauz (“the applicant”), on 30 April 2010.

The applicant was represented by Ms A. Šutalo, an advocate practising in Valpovo. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

The applicant alleged, in particular, that the costs of civil proceedings he had been ordered to pay to the State had been higher than the compensation for ill-treatment he had been awarded in those proceedings.

On 21 February 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1949 and lives in Donji Miholjac.

On 25 January 1997 the applicant was arrested and brought to a police station where, during a questioning session that lasted four hours, he was beaten by a police officer, M.B.

A. Criminal proceedings

On 28 January 1997 the physician who examined the applicant after the incident filed a criminal report with the relevant police authorities.

On 24 July 1997 the Donji Miholjac State Attorney’s Office indicted M.B. before the Donji Miholjac Municipal Court (Općinski sud u Donjem Miholjcu) for the criminal offence of ill-treatment in the exercise of an official duty.

By a judgment of 28 October 1997 the Municipal Court found M.B. guilty as charged and sentenced him to three months’ imprisonment but suspended the sentence for a period of one year. The court found, in particular, that the applicant had sustained light bodily injuries, mostly in the form of soft tissue contusions and bruising on the head, elbow and thighs.

On 30 December 1997 the Osijek County Court (Županijski sud u Osijeku) dismissed an appeal by the accused and upheld the first-instance judgment, which thereby became final.

B. Civil proceedings

. On 30 October 1998 the applicant brought a civil action against the State in the Zagreb Municipal Court (Općinski sud u Zagrebu), seeking compensation for the ill-treatment sustained. He sought a total of 295,000 Croatian kunas (HRK) in compensation for non-pecuniary damage. In response, the State, represented by the State Attorney’s Office, replied that the applicant’s claim was excessive.

. On 10 November 1999 the court obtained an opinion from a medical expert. The expert established that the applicant had sustained the following injuries: several contusions on the head (affecting the vertex and the occipital and temporal lobes), bruising on ears, thighs, the left elbow and the left part of the abdomen. Those injuries had healed completely, with no permanent consequences, and had not resulted in the loss of amenities of life. The expert further found that the applicant had suffered constant severe pain for one or two days, occasional moderate pain for three or four days and occasional mild pain for three or four weeks. During the incident the applicant had also experienced intense, primal fear and, for the next one or two days, residual fear - the intensity of which had gradually subsided and completely disappeared over the three subsequent weeks.

. In written submissions of 15 June 2001 the applicant’s representative raised his initial claim for compensation to HRK 335,000, of which HRK 300,000 was sought for mental anguish caused by the ill-treatment, HRK 15,000 for physical pain and HRK 20,000 for fear. At a hearing held on 21 June 2001 the applicant’s representative reiterated that claim and, at the same time, withdrew his earlier objections to the expert’s opinion.

. On 17 September 2002 the Municipal Court gave judgment, whereby it awarded the applicant a total of HRK 14,500 in compensation for non-pecuniary damage sustained by arbitrary deprivation of liberty and ill-treatment, together with statutory default interest running from 17 September 2002 and HRK 3,553.31 in costs. In particular, the court awarded the applicant HRK 5,000 for breach of his reputation and honour, liberty and rights of personality, HRK 4,500 for physical pain and HRK 5,000 for fear. At the same time, it dismissed the remainder of the applicant’s compensation claim (HRK 320,500) and ordered him to pay the State HRK 26,197.87 in costs, which consisted of fees chargeable for the State’s representation by the State Attorney’s Office.

. In particular, as regards costs, that court established that the total amount of “costs necessary for the conduct of the proceedings”, within the meaning of section 155(1) of the Civil Procedure Act, incurred by the applicant on account of his legal representation by an advocate before that court was HRK 40,070, whereas the State had incurred HRK 27,375 on account of its legal representation by the State Attorney’s Office. As the applicant had only been awarded 4.3% of the total amount of damages sought, he was considered to have successfully claimed that percentage of the damages sought in the proceedings, whereas the State was considered to have successfully defended the remaining 95.7% of the claim. Costs were apportioned in accordance with those percentages, which meant that the applicant was entitled to have HRK 3.553.31 of his costs reimbursed by the State, whereas the State was entitled to have HRK 26,197.87 of its costs reimbursed by the applicant.

. On 9 May 2006 the Zagreb County Court (Županijski sud u Zagrebu) dismissed an appeal by the applicant and upheld the first-instance judgment.

. Following an appeal on points of law (revizija) by the applicant, on 24 April 2007 the Supreme Court (Vrhovni sud Republike Hrvatske) reversed the lower courts’ judgments in part and awarded him a total of HRK 24,000 in compensation for non-pecuniary damage, together with statutory default interest running from 17 September 2002 and HRK 8,300 in costs. In particular, the court awarded the applicant HRK 7,000 for physical pain and HRK 12,000 for fear, whereas the award of HRK 5,000 by the first-instance court for breach of his rights of personality remained unaltered. It dismissed the remainder of the applicant’s claim for damages and ordered him to pay the State HRK 19,000 in costs.

. On 24 December 2007 the State paid the applicant a total of HRK 32,207.28 pursuant to the Supreme Court judgment. That amount consisted of HRK 24,000 in damages, HRK 18,907.28 in accrued statutory default interest and HRK 8,300 costs, less the HRK 19,000 costs the applicant had been ordered to pay the State.

. Meanwhile, on 19 October 2007 the applicant, relying on Articles 22 and 23 of the Constitution, lodged a constitutional complaint against the Supreme Court’s judgment, alleging violations of his constitutional right to liberty and the constitutional prohibition of ill-treatment. In his constitutional complaint the applicant wrote, inter alia, as follows:

“On 30 October 1998 I instituted civil proceedings for damages against the Republic of Croatia as defendant, the epilogue of which was, after nine years of painstaking litigation, the Republic of Croatia as defendant having to pay me 24,000 [Croatian] kunas for all types of non-pecuniary damage and 8,300 [Croatian] kunas for the costs of the proceedings, whereas at the same time I had to pay the defendant 19,000 [Croatian] kunas for the costs of the proceedings!?

...

... I expected full satisfaction ... and [instead] I was reluctantly awarded only those 24,000 [Croatian] kunas, which, when my obligations concerning the defendant’s costs of proceedings are deducted [i.e. taken into account], comes down to a measly 13,300 [Croatian] kunas. [T]hat is no satisfaction at all but a mockery of the Constitution and the law at my expense as an innocent victim of violence by the authorities...

...

By the contested judgment I was after nine whole years of litigation ... awarded compensation in a shamefully small amount as if I had been injured in a road traffic accident by negligence, and not been brutally ill-treated.”

. On 17 September 2009 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s constitutional complaint and served its decision on his representative on 4 November 2009. In so doing the Constitutional Court examined the applicant’s arguments not only under the two Articles of the Constitution he had relied on in his constitutional complaint, but also under Article 14 paragraph 2 of the Constitution, as it found that from the content of the constitutional complaint it was clear that the applicant also complained of a violation of his constitutional right to equality before the law.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. The Constitution

Relevant provisions

The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/90, 135/97, 8/98 (consolidated text), 113/00, 124/00 (consolidated text), 28/01, 41/01 (consolidated text), 55/01 (corrigendum), 76/10 and 85/10) read as follows:

Article 14 (2)

“All shall be equal before the law.”

...

Article 22

“Human liberty and personality shall be inviolable.

No one shall be deprived of [his or her] liberty, nor may [a person’s] liberty be restricted, unless provided for by law [and] ordered by a court.”

Article 23

“No one may be subjected to any form of ill-treatment, or, without his or her consent, to medical or scientific experimentation.

Forced and compulsory labour shall be prohibited.”

...

Article 29 (1)

“In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.”

...

Article 48

“The right of ownership shall be guaranteed.

Ownership implies duties. Owners and users of property shall contribute to the general welfare.”

B. The Constitutional Court Act

1. Relevant provisions

The relevant provisions of the 1999 Constitutional Act on the Constitutional Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette nos. 99/99, 29/02 and 49/02 - “the Constitutional Court Act”), which has been in force since 15 March 2002, reads as follows:

Section 62

“1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the decision of a state authority, local or regional government or a legal entity invested with public authority on his or her rights or obligations, or as regards the suspicion or accusation of a criminal offence, has violated his or her human rights or fundamental freedoms, or the right to local or regional self-government, guaranteed by the Constitution (hereafter: ‘constitutional rights’) ...

2. If another legal remedy is available in respect of the violation of constitutional rights [complained of], a constitutional complaint may be lodged only after this remedy has been exhausted.

3. In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law [revizija] are available, remedies shall be considered exhausted only after the decision on these legal remedies has been given.”

Section 65(1)

“A constitutional complaint shall contain ... an indication of the constitutional right alleged to have been violated [together] with an indication of the relevant provision of the Constitution guaranteeing that right ...”

Section 71(1)

“ ... [t]he Constitutional Court shall examine only those violations of constitutional rights alleged in the constitutional complaint.”

2. The Constitutional Court’s jurisprudence

On 9 July 2001 the Constitutional Court delivered decision no. U-III-368/1999 (Official Gazette no. 65/2001) in a case where the complainant relied in her constitutional complaint on Articles 3 and 19 paragraph 1 of the Constitution, neither of which, under that court’s jurisprudence, concerned a constitutional right. The Constitutional Court nevertheless allowed the constitutional complaint, finding violations of Article 14, Article 19 paragraph 2 and Article 26 of the Constitution, on which the complainant had not relied, and quashed the contested decisions. In so deciding it held as follows:

“... a constitutional complaint cannot be based on either of the constitutional provisions relied on [by the complainant in her constitutional complaint].

However, the present case, as will be explained further, concerns a specific legal situation, as a result of which this court, despite [its] finding that there have not been, and cannot be, any violations of the constitutional rights explicitly relied on by the complainant, considers that there are circumstances which warrant the quashing of [the contested] decisions.

...

Namely, it is evident from the constitutional complaint and the case file that there have been violations of [constitutional] rights, in particular those guaranteed by Article 14 (equality, equality before the law), Article 19 § 2 (guarantee of judicial review of decisions of state and other public authorities) and Article 26 (equality before the courts and other state or public authorities) of the Constitution ...”

C. The Civil Procedure Act

1. Relevant provisions

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. 53/91, 91/92, 58/93, 112/99, 88/01, 117/03, 88/05, 02/07, 84/08, 123/08, 57/11 and 148/11) reads as follows:

JURISDICTION AND COMPOSITION OF THE COURT

2. Subject matter jurisdiction
Determining the value of the subject matter of the dispute

Section 35

“(1) When the value of the subject matter of the dispute is relevant for determining subject matter jurisdiction, the composition of the court, the right to lodge an appeal on points of law and in other cases provided for in this Act, only the value of the principal claim shall be taken into account as the value of the subject matter of the dispute.

(2) Interest, costs of proceedings, liquidated damages and other secondary claims shall not be taken into account unless they constitute the principal claim.”

Section 40 (2)

“... when an action does not concern a sum of money, the relevant value shall be the value of the subject matter of the dispute indicated by the plaintiff in the statement of claim (u tužbi).”

...

COSTS OF PROCEEDINGS

Section 151

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

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

Section 154

“(1) A party who loses a case completely shall reimburse the costs of the opposing party and his or her intervener.

(2) If a party succeeds in the proceedings in part, the court may, having regard to the success achieved, order that each party shall bear its own costs or that one party shall reimburse the other party and the intervener the corresponding part of the costs.

(3) The court may decide that one party reimburses in full the costs incurred by the opposing party and his or her intervener if the opposing party did not succeed with only a relatively insignificant part of his or her claim, and where no special costs were generated because of that part.

(4) ...”

Section 155

“(1) In deciding which costs shall be reimbursed to a party, the court shall take into account only those costs which were necessary for the conduct of the proceedings. When deciding which costs were necessary and their level, the court shall carefully consider all the circumstances.

(2) If there is a prescribed scale of advocates’ fees or other costs, these costs shall be awarded according to that scale.”

Section 156(1)

“Regardless of the outcome of the case, a party shall reimburse the costs of the opposing party which he or she has caused to be incurred through his or her own fault or by an event that befell him or her [i.e. by accident].”

Section 163

“The provisions on costs [of proceedings] are also applicable to parties which are represented by the State Attorney’s Office. In that case the costs of proceedings also include the amount that would be awarded to the party as advocates’ fees.”

2. The Supreme Court’s case-law

. On 6 June 1980 the Civil Division of the Supreme Court adopted an opinion, which it forwarded to the lower courts as a practice direction and has followed ever since (see, for example, decisions no. Rev 1093/09-2 of 15 October 2009, no. Rev 1181/09-2 of 30 October 2009 and no. Rev 341/09-2 of 7 April 2010), according to which section 154(2) of the Civil Procedure Act was to be interpreted as follows:

“1. In the event of a partial success in [civil] proceedings (section 154 paragraph 2 of the Civil Procedure Act) it is necessary to interpret the terms ‘partial success’ and ‘corresponding part of the costs’ not only qualitatively but also quantitatively, that is, by taking into account [both] the substance and the quantum of the allowed or dismissed part of the claim. Therefore:

(a) where the defendant disputed the substance of the claim in its entirety or only the substance of certain parts of the claim (such as a certain type of damage and such like), because of which an expert opinion had to be prepared or other evidence taken, the costs of which were advanced by the plaintiff, the plaintiff is entitled to have those costs reimbursed in their entirety, irrespective of the level of the amount [of damages] awarded;

(b) where the defendant disputed only the level of compensation sought for a particular type of non-pecuniary damage, the court has to assess whether the plaintiff should be entitled to have costs related to the determination of the level of non-pecuniary damages he or she advanced reimbursed in their entirety or only in part.”

. For example, in case no. Rev 1083/09-2 of 15 October 2009 the Supreme Court upheld the lower courts’ decision to award the plaintiff the entire costs he incurred in civil proceedings for damages, even though he was only awarded 65% of the amount of damages sought. In so deciding the Supreme Court held as follows:

“... this court has, on [the issue of] a partial success of a party in [civil] proceedings and the application of section 154 paragraph 2 of the Civil Procedure Act, already adopted a legal opinion at a session of [its] Civil Division on 6 June 1980. The legal opinion adopted at that session of the Civil Division suggests that when assessing the costs of proceedings it is necessary to interpret the terms ‘partial success’ and ‘corresponding part of the costs’ not only quantitatively but also qualitatively.

That means that where the defendant disputed the substance of the claim in its entirety, because of which costs were incurred, the plaintiff is entitled to have those costs reimbursed in their entirety, irrespective of the level of the amount [of damages] awarded. Therefore, section 154 paragraph 2 of the Civil Procedure Act should, in the event of a partial success in the proceedings, in principle, apply in the manner suggested by the appellant on points of law but also, as an exception, in the way the lower courts applied it in the present case. The lower courts assessed the costs of proceedings in this case by taking into account the fact that they were only incurred because the substance of the claim was disputed and not the level of non-pecuniary damages sought. The present case [thus] concerns precisely the application of the aforementioned qualitative approach in the assessment of the costs of proceedings.”

D. The 2001 State Attorney’s Act

. The relevant provision of the State Attorney’s Act (Zakon o državnom odvjetništvu, Official Gazette of the Republic of Croatia nos. 51/2001, 16/2007, 20/2007 (corrigendum), 146/2008), which was in force between 13 June 2001 and 30 June 2009, provided as follows:

Section 22

“The costs of [legal] representation [of the State] before the courts and other competent authorities shall be awarded to the competent state attorney’s office in accordance with the legislation governing advocates’ fees and reimbursement of their costs.

The funds collected as costs of [legal] representation [of the State] are revenue of the State budget.”

E. The Scales of Advocates’ Fees and Reimbursement of their Costs

According to the Scales of Advocates’ Fees and Reimbursement of their Costs (Tarifa o nagradama i naknadi troškova za rad odvjetnika, Official Gazette nos. 91/2004, 37/2005 and 59/2007), an advocate’s fees in a civil case are, as a matter of principle, calculated in proportion to the value of the subject matter of the dispute (the amount in controversy) for every procedural action. The value of the subject matter of the dispute normally corresponds to the sum the plaintiff is seeking to obtain through his or her civil action. Scales 7 to 9 provide that the fee for drafting a statement of claim or the defendant’s reply to it and the fee for attendance at a hearing shall be calculated in the following way:

Value of the subject matter of the dispute (HRK)	Fee (HRK)
- 2,500
,500 - 5,000
,000 - 10,000
,000 - 100,000	1,000
,000 - 250,000	2,500
,000 - 500,000	5,000

F. 1978 Obligations Act

1. Relevant provisions

The Obligations Act (Zakon o obveznim odnosima, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 29/1978, 39/1985 and 57/1989, and Official Gazette of the Republic of Croatia nos. 53/91, 73/91, 111/93, 3/94, 7/96, 91/96, 112/99 and 88/01 - hereafter: “the 1978 Obligations Act”), which was in force between 1 October 1978 and 31 December 2005, was the legislation governing contracts and torts. According to that Act courts were entitled to award compensation for the following types of non-pecuniary damage: (1) physical pain, (2) fear and (3) mental anguish caused by (a) loss of amenities of life (smanjenje životne aktivnosti), (b) disfigurement, (c) injury to one’s reputation and honour, (d) breach of liberty, (e) breach of the rights of personality, (f) death of a close relative, (g) severe disability of an immediate family member, and (h) sexual offences (rape, lewd acts, etc.) punishable by criminal law. The 1978 Obligations Act did not provide for punitive (exemplary) damages. Its relevant provisions read as follows:

Damage
Section 155

“Damage is diminution of one’s property (actual damage) or prevention of its increase (lost profits), as well as the infliction of physical or mental pain or fear (non-pecuniary damage).”

...

Non-pecuniary damages
Section 200

“The court shall award non-pecuniary damages for physical pain, for mental anguish caused by loss of amenities of life, disfigurement, breaches of reputation, honour, liberty or the rights of personality or the death of a close relative, and for fear, if it finds that the circumstances of the case, in particular the intensity of the pain, anguish or fear and their duration, justify such an award, irrespective of any award of pecuniary damages, and even in the absence of pecuniary damage.

When deciding on a claim for non-pecuniary damages and its amount, the court shall take into account ... the purpose of those damages, as well as that it should not favour aspirations that are incompatible with their nature and social purpose.”

2. The Supreme Court’s guidelines

The Orientation Criteria for the Harmonisation of the Level of Compensation for Non-Pecuniary Damage (Orijentacioni kriteriji za ujednačavanje visine naknade nematerijalne štete - hereafter “the 1995 Guidelines”) were guidelines adopted by the Supreme Court on 8 March 1995 with a view to facilitating the uniform application of section 200 of the 1978 Obligations Act. Those Guidelines specified the following amounts in German marks (DEM) - to be converted into Croatian kunas (HRK) - for various types of non-pecuniary damage:

Physical pain, per day	severe		50-70	In total, for all forms of physical pain maximum 5,000	The total amount of compensation may be varied according to the severity of the injury and the other specific circumstances of the case.
	moderate		30-50
	mild		10
Fear	700 - 3,000
Mental anguish caused by loss of amenities of life, for each 10%	2,000 - 4,000 up until 30%			Variable according to the extent and severity of the established permanent effects.
	4,000 - 7,000 for over 30%
Mental anguish for death of a close relative	spouse, child or parent 10,000 - 15,000
	brothers and sisters 7,000 - 10,000
Mental anguish for disfigurement	severe	3,000 - 5,000		Variable according to the age, profession, sex, location of the injury, etc.
	moderate	2,000 - 3,500
	mild	1,000 - 2,000
Mental anguish for particularly severe disability of an immediate family member	10,000 - 20,000

The Orientation Criteria and Sums for Determining the Level of Compensation for Non-Pecuniary Damage (Orijentacijski kriteriji i iznosi za utvrđivanje visine pravične novčane naknade nematerijalne štete - hereafter: “the 2002 Guidelines”) are guidelines adopted by the Supreme Court on 29 November 2002 that replaced the 1995 Guidelines. They were published on 30 December 2002 and 30 June 2003 in the Supreme Court’s publication “Izbor odluka Vrhovnog suda Republike Hrvatske” [Selection of decisions of the Supreme Court of the Republic of Croatia], nos. 2/2002 and 1/2003. The 2002 Guidelines specified the following amounts in HRK to be awarded for various types of non-pecuniary damage:

Physical pain, per day	severe				370
	moderate				220
	mild				70
Fear	2,200 - 30,000
Mental anguish caused by loss of amenities of life	up to 25%			7,500		for every 10%
	between 25% and 40%			11,000		for every 10%
	between 40% and 60%			22,000		for every 10%
	between 60% and 80%			45,000		for every 10%
	between 80% and 100%			75,000		for every 10%
Mental anguish for death of a close relative	Death of a spouse or child				220,000
	Loss of an unborn child				75,000
	Death of a parent		for a child who was in that parent’s custody		220,000
			for a child		150,000
	Death of a brother or sister				75,000
Mental anguish for disfigurement	severe	very visible to third persons				37,000
		only occasionally visible				22,000
	moderate	very visible to third persons				22,000
		only occasionally visible				11,000
	mild	very visible to third persons				5,000
		only occasionally visible				2,500
Mental anguish for particularly severe disability of an immediate family member	Disability of a spouse				220,000
	Disability of a parent		for a child who was in that parent’s custody		220,000
			for a child		150,000

G. Other relevant legislation

Section 63 of the 1999 Constitutional Act on the Constitutional Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette of the Republic of Croatia no. 99/1999 of 29 September 1999 - “the Constitutional Court Act”), as amended by the 2002 Amendments which entered into force on 15 March 2002 (Ustavni zakon o izmjenama i dopunama Ustavnog zakona o Ustavnom sudu Republike Hrvatske, Official Gazette of the Republic of Croatia no. 29/2002 of 22 March 2002), establishes that a constitutional complaint is the appropriate remedy for complaints concerning the length of judicial proceedings in Croatia and is reproduced in Slaviček v. Croatia (dec.), no. 20862/02, ECHR 2002-VII.

The relevant provisions of the Courts Act (Zakon o sudovima, Official Gazette nos. 150/05, 16/07 and 113/08), which entered into force on 29 December 2005, governing the request for the protection of the right to a hearing within a reasonable time as the appropriate remedy for complaints concerning the length of judicial proceedings in Croatia, are set out in Praunsperger v. Croatia, no. 16553/08, § 21, 22 April 2010.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

The applicant complained that he had been subject to ill-treatment, that the police officer who had ill-treated him had received only a suspended sentence and that the compensation he had been awarded in the above civil proceedings had been insufficient. He relied on Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Court first notes that the ill-treatment complained of took place on 25 January 1997, that is, before the Convention entered into force in respect of Croatia on 5 November 1997. It further notes that the criminal proceedings against the police officer in question ended on 30 December 1997, whereas the applicant lodged his application with the Court only on 2 May 2011, more than thirteen years later. Clearly, the six-month time-limit in which to bring an application before the Court had already expired.

It follows that in so far as the applicant’s complaint concerns the substantive aspect of Article 3 of the Convention, namely the negative obligation of the State to refrain from ill-treatment, it is inadmissible as incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 of the Convention and must therefore be rejected pursuant to Article 35 § 4 thereof.

It further follows that, to the extent that the applicant’s complaint concerns the procedural aspect of Article 3 of the Convention, in other words the positive obligation to conduct an effective official investigation capable of leading to the identification and punishment of those responsible, it is inadmissible under Article 35 § 1 for failure to observe the six-month rule and must be rejected pursuant to Article 35 § 4 thereof.

The applicant’s remaining complaint that the compensation he received for the ill-treatment sustained was insufficient falls to be examined under Article 13 of the Convention (see, mutatis mutandis, Vasil Sashov Petrov v. Bulgaria, no. 63106/00, §§ 58-61, 10 June 2010), which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court reiterates that Article 13 does not contain a general guarantee of legal protection of all substantive rights. It refers exclusively to those cases in which the applicant alleges, on arguable grounds, that one of his rights or freedoms set forth in the Convention has been violated (see Gavella v. Croatia (dec.), no. 33244/02, ECHR 2006-XII (extracts)). Accordingly, it cannot be relied on independently from, but only in conjunction with, one or more substantive Articles of the Convention.

. In this connection the Court refers to its findings above, according to which the applicant’s complaint under Article 3 of the Convention is inadmissible as incompatible ratione temporis.

It follows that the complaint under Article 13 is also incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 thereof and must be rejected pursuant to its Article 35 § 4.

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE EXCESSIVE COSTS OF PROCEEDINGS

The applicant also complained that, by ordering him to pay to the State the costs that had been higher than the compensation he had been awarded for ill-treatment by a policeman, the domestic courts had breached Article 6 § 1 of the Convention, which in its relevant part reads as follows:

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

The Government contested that argument.

A. Admissibility

The Government disputed the admissibility of this complaint on four grounds. They argued that the applicant could not claim to be a victim of the violation alleged, that he had failed to exhaust domestic remedies, had not observed the six-month rule and that he had abused the right of application.

1. The applicant’s victim status

The Government first submitted that it was evident from the Supreme Court’s judgment of 24 April 2007 (see paragraph 17 above) that the costs the applicant had been ordered to pay to the State had not been higher than the compensation he had been awarded. The applicant therefore could not claim to be a victim of the alleged breach of Article 6 § 1 of the Convention.

The applicant maintained his view that he was a victim of a violation of Article 6 § 1 of the Convention.

The Court, having regard to the Supreme Court’s judgment of 24 April 2007, considers it is undeniable that the costs the applicant was eventually ordered to pay (HRK 19,000) were lower than the compensation awarded to him (HRK 24,000). However, that does not mean that the applicant cannot claim to be a victim of the violation complained of, as a substantial reduction of an award of damages resulting from the duty to pay the costs of proceedings may entail a breach of Article 6 § 1 of the Convention (see, for example, Stankov v. Bulgaria, no. 68490/01, §§ 51-67, ECHR 2007-VIII). Accordingly, the Government’s objection regarding the applicant’s victim status must be rejected.

2. Non-exhaustion of domestic remedies

(a) The parties’ submissions

The Government also argued that the applicant had not complained of a violation of his right to a fair hearing in the proceedings before the domestic courts. In particular, in his constitutional complaint the applicant had not relied on Article 29 of the Constitution, which was the provision enshrining the constitutional right to a fair hearing, or on Article 6 § 1 of the Convention directly. Rather, he had complained only of a violation of his constitutional right to liberty, guaranteed by Article 22 of the Constitution, and of a violation of the constitutional prohibition of ill-treatment, stipulated in Article 23 of the Constitution (see paragraphs 19 and 21 above).

The applicant, referring to the principle of iura novit curia, replied that it had been for the Constitutional Court to legally qualify the arguments raised in his constitutional complaint. It was precisely in the application of that principle that the Constitutional Court had found that he had also implicitly complained under Article 14 paragraph 2 of the Constitution (see paragraph 20 above). That being so, the Constitutional Court could have likewise, had it wanted to, (re-)qualified the arguments adduced in his constitutional complaint and examined them under Article 29 paragraph 1 of the Constitution, as it had been obvious that they, together with the facts of the case, had indicated that the proceedings had been unfair.

(b) The Court’s assessment

The Court first notes that the applicant, in his constitutional complaint, did not rely on Article 29 paragraph 1 of the Constitution, which is the provision that arguably corresponds to Article 6 § 1 of the Convention. Nor did he rely on Article 6 § 1 directly. Instead, he referred principally to Articles 22 and 23 of the Constitution, which are the provisions that largely correspond to Articles 3 and 5 of the Convention (see paragraph 21 above).

The Court further notes that it is clear from the Constitutional Court’s decision no. U-III-363/1999 of 9 July 2001 (see paragraph 23 above) that in certain cases it is not necessary for persons lodging a constitutional complaint to plead the relevant Articles of the Constitution, as sections 65(1) and 71(1) of the Constitutional Court Act may suggest. Sometimes it may be sufficient for a violation of a constitutional right to be apparent from the complainant’s submissions and the case file. This conclusion is further reinforced by the Constitutional Court’s readiness in the present case to also examine the applicant’s case under Article 14 paragraph 2 of the Constitution, a provision he did not rely on in his constitutional complaint (see paragraphs 19-20 above).

Therefore, while it is true that in his constitutional complaint the applicant did not explicitly rely on Article 6 § 1 of the Convention or the corresponding provision of the Constitution, he did complain of the inadequacy of the compensation awarded for the ill-treatment by the police in view of the costs of proceedings he had been ordered to pay to the State. In particular, he referred to such reduced compensation as “a mockery of the Constitution and the law” (see paragraph 19 above).

. In these circumstances, the Court considers that the applicant, having raised the issue in substance in his constitutional complaint, did raise before the domestic courts the complaint which he has submitted to the Court. He thereby provided the national authorities with the opportunity which is in principle intended to be afforded to Contracting States by Article 35 § 1 of the Convention, namely of putting right the violations alleged against them (see Lelas v. Croatia, no. 55555/08, §§ 45 and 47-52, 20 May 2010).

What is more, while the applicant’s complaint of the inadequacy of the compensation awarded for the ill-treatment by the police is indeed incompatible ratione temporis when examined under Article 13 in conjunction with Article 3 of Convention (see paragraphs 38-41 above), that reasoning does not apply if the same complaint is examined under the corresponding provision of the Croatian Constitution. Therefore, the applicant cannot be blamed for having relied in his constitutional complaint on Article 23 of the Constitution, that is, a provision more specific to his case and thus offering him greater prospects of success than Article 29 paragraph 1 of the Constitution (see paragraph 21 above).

It follows that the Government’s objection as to the exhaustion of domestic remedies must also be rejected.

3. Compliance with the six-month rule

(a) The parties’ submissions

The Government further argued that, while the date on the application form was 30 April 2010, it was not clear when the form had been submitted to the Court. They pointed out that it bore the Registry’s stamp dated 10 May 2010 and that the final domestic court decision, namely the Constitutional Court’s decision of 17 September 2009, had been served on the applicant’s representative on 4 November 2009. They suggested, therefore, that the applicant had lodged his application with the Court outside the six-month time-limit.

. The applicant replied that he had sent his application to the Court by registered mail on 30 April 2010, which was evident from the enclosed postal receipt. Therefore, he had lodged his application with the Court within the six-month time-limit.

(b) The Court’s assessment

. For the Court, it is sufficient to note that the Constitutional Court’s decision of 17 September 2009 dismissing the applicant’s constitutional complaint was served on his representative on 4 November 2009, and that he lodged his application with the Court on 30 April 2010 (of which he furnished evidence in the form of a postal receipt), that is, five months and twenty-five days later.

In the light of the foregoing, and given that in the Peruško case it has already rejected a similar objection raised by the Government (see Peruško v. Croatia, no. 36998/09, §§ 34-37, 15 January 2013), the Court sees no reason to hold otherwise in the present case.

It follows that the Government’s objection as to the non-observance of the six-month rule must likewise be rejected.

4. Abuse of the right of application

(a) The parties’ submissions

Lastly, the Government argued that in her observations in reply dated 21 July 2011 the applicant’s representative had made insulting and inappropriate comments amounting to an abuse of the right of application within the meaning of Article 35 § 3 of the Convention. In particular, she had described the Government’s legal arguments raised in their observations of 16 June 2011 as “manipulative” and “ignorant” and added that communicating with the Government was obviously a “waste of time and effort” and a “pointless conversation with the deaf” and that the Government “offends [against] the principle of iura novit curia”.

. The applicant did not reply to these arguments.

(b) The Court’s assessment

The Court first notes that in her observations of 21 July 2011 the applicant’s representative did not refer to the Government’s arguments as “ignorant” or “manipulative”. Rather, when responding to the Government’s non-exhaustion objection she wrote that in so doing the Government were “manipulating with the constitutional complaint”. Furthermore, her argument that the Government had “offended” against the principle of iura novit curia, should, in the Court’s view, be better understood as asserting that the Government had breached that principle. On the other hand, the applicant’s representative did indeed state in her observations that communicating with the Government was obviously a “waste of time and effort” and a “pointless conversation with the deaf”.

. However, the Court reiterates that, whilst the use of offensive language in proceedings before it is undoubtedly inappropriate, an application may only be rejected as abusive in extraordinary circumstances (see Felbab v. Serbia, no. 14011/07, § 56). Having regard to its case-law (see Felbab, loc. cit., and the cases cited therein), the Court considers that although the statements made by the applicant’s representative were inappropriate and indeed regrettable, they are not of such nature that would justify a decision to declare the application inadmissible as an abuse of the right of application.

. It follows that the Government’s objection as regards the alleged abuse of the right of application must be rejected.

5. Conclusion

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

B. Merits

1. The arguments of the parties

(a) The Government

The Government first reiterated their above argument (see paragraph 45) that, contrary to the applicant’s submissions, the costs the applicant had been ordered to pay to the State had not been higher than the compensation he had been awarded.

They further submitted that the decision on costs in the applicant’s case had been based on the relevant provisions of the Civil Procedure Act (see paragraph 24 above) and the Scale of Advocates’ Fees and Reimbursement of their Costs (see paragraph 28 above), and had thus been prescribed by law.

The Government explained that under Croatian law costs of civil proceedings, in particular court fees and advocate’s fees, were determined in relation to the value of the subject matter of the dispute. In cases where the plaintiff sought payment of a sum of money, the value of the subject matter of the dispute was the amount sought in the civil action. As a direct consequence thereof, when a plaintiff brought a high-value claim, the defendant’s costs of proceedings were also high. Furthermore, the costs of civil litigation were apportioned at the end of the proceedings in accordance with the success of the parties to the dispute. These rules also applied in cases where the State, represented by the State Attorney’s Office, was a party. In the present case the applicant had sought payment of HRK 335,000 in compensation, whereas the domestic courts had eventually awarded him HRK 24,000, that is, only 7% of the amount sought, which had meant that the State had succeeded with 93%. Thus, the applicant had been ordered to pay 93% of the costs incurred by the State. That rule, providing for an obligation on the parties to pay costs depending on their success in the proceedings and which was determined in proportion to the value of the claim, pursued the legitimate aim of the proper administration of justice by preventing plaintiffs from bringing unfounded actions or submitting unreasonably high claims having no support in facts or not corresponding to the actual damage sustained, and by protecting the financial interests of defendants.

. As to proportionality, the Government first emphasised that given that the applicant had succeeded with only 7% of his claim, the domestic court could have applied section 154(3) of the Civil Procedure Act (see paragraph 24 above), which entitled them to make a full award of costs to one party if the other had only been awarded an insignificant fraction of his or her claim. They had chosen not to do so precisely because of the nature of the applicant’s claim.

. The Government further noted that the applicant had based his civil action of 4 November 1998 on the judgment of the criminal court whereby M.B. had been found guilty of ill-treating the applicant in the exercise of an official duty. In so doing, he had initially sought an award of HRK 295,000, even though the facts established by the criminal court and reproduced in its judgment had suggested that the applicant had sustained several minor injuries (see paragraph 9 above). Those findings of fact had been confirmed in the above civil proceedings by the medical expert in his opinion of 15 November 1999, according to which the applicant had only suffered fear and severe to moderate pain for a short time (see paragraph 12 above).

The Government argued that against that background and having regard to the existing case-law of the Supreme Court and its 1995 Guidelines (see paragraph 30 above), the applicant or, certainly, his advocate, should have known that the amount sought had been unrealistically high in view of the applicant’s injuries, and that, as a consequence thereof, it was likely that he would be ordered to pay a high percentage of the defendant’s costs of proceedings. What was more, after the medical expert had given his opinion and after it had become clear that the applicant had not been entitled to receive an amount that was even close to that initially sought, the applicant and his advocate had without any justification raised the claim to HRK 335,000 (see paragraph 13 above). That amount had been unrealistic in view of the injuries established in the medical expert’s opinion, to which the applicant had not objected.

By so doing the applicant had set the value of the subject matter of the dispute too high, which had resulted in the obligation to pay a relatively high percentage of the State’s costs of proceedings as defendant, amounting to HRK 19,000. In this connection, the Government stressed that the State could not be held responsible for inexpert legal representation by the applicant’s advocate. They again emphasised that, despite the high costs the applicant had been ordered to pay, those costs had still been lower than the amount of compensation (HRK 24,000) and the costs (HRK 8,300) that the applicant had been awarded in the same proceedings.

In conclusion, the Government maintained that the costs the applicant had been obliged to pay had not been unreasonable or arbitrary in view of the amount sought by the applicant, and thus had not been in violation of Article 6 § 1 of the Convention.

(b) The applicant

The applicant replied that, like the domestic courts, the Government had failed to understand the specific nature of his civil case and had treated it as an ordinary civil case as if it had not involved a serious violation of the Convention. He explained that the criteria applied by the domestic courts in his case for assessing the level of damages, to which the Government had referred, had been developed on the basis of ordinary civil cases such as those concerning damages for injuries sustained in road traffic accidents, or bar or street brawls. Those criteria could not be applied to his case, which had concerned torture and ill-treatment in the context of unlawful arrest and detention by a police officer that had lasted for five hours and had involved brutalisation, humiliation and the infliction of injuries on vital body parts, which had been evident from the factual findings of the criminal court. In those circumstances the amount he had sought in the above civil proceedings as compensation for non-pecuniary damage could not have been considered excessive had the domestic courts taken into account the purpose of awarding compensation in such cases, namely to compensate the victim but also to deter similar wrongdoing in the future.

2. The Court’s assessment

(a) Legal characterisation of the applicant’s complaint

The central issue in the present case concerns the fact that the applicant was ordered to reimburse the costs of the representation of the State in the civil proceedings by the State Attorney’s Office, which amounted to approximately 79% of the (principal amount of) compensation the State was ordered to pay him for the ill-treatment he sustained at the hands of the police officer, who had already been found guilty of the criminal offence of ill-treatment in the exercise of an official duty. As a consequence, the compensation paid to the applicant was significantly reduced by him having to reimburse those costs, despite the fact that the Croatian courts unequivocally accepted that he was entitled to compensation from the State for the non-pecuniary damage occasioned by his ill-treatment by the police.

The Court reiterates that in the Stankov case it held that the imposition of a considerable financial burden after the conclusion of proceedings could well act as a restriction on the right to a court, and found that the costs order against the applicant constituted such a restriction (see Stankov, cited above, § 54). Even though in the Stankov case the costs of proceedings concerned court fees, the Court considers that the same reasoning applies with equal force in the present case, where the costs the applicant was ordered to pay consisted of fees chargeable for the representation of the State by the State Attorney’s Office in the civil proceedings and payable into the State budget (see paragraph 27 above). The Court therefore considers that the applicant’s complaint under Article 6 § 1 of the Convention on account of the excessive costs of the proceedings is to be examined as an access-to-court complaint.

(b) As to whether there was a restriction of the applicant’s right to a court

The Court notes that section 154(1) of the Civil Procedure Act embodies the “loser pays” rule, according to which the unsuccessful party has to pay the successful party’s costs. Likewise, according to paragraph 2 of the same section, when a party partly succeeds in the proceedings, the court may order that party to reimburse the corresponding part of the other party’s costs (see paragraph 24 above).

Furthermore, according to the Scales of Advocates’ Fees, in civil cases those fees are, as a matter of principle, calculated in proportion to the value of the subject matter of the dispute (see paragraph 28 above). Under section 35(1) of the Civil Procedure Act, in cases where the plaintiff seeks payment of a sum of money, the value of the subject matter of the dispute corresponds to the amount sought in the civil action (see paragraph 24 above). Therefore, the higher the amount the plaintiff seeks is, the higher will be the defendant’s advocate’s fees.

These rules, taken together, mean that where the plaintiff, as in the present case, succeeds in a civil action only in part, he may have to pay the defendant’s costs (including advocate’s fees) in proportion to the percentage of his claim that was disallowed. More particularly, where a court finds that a claim for damages against the defendant is well-founded in substance but excessive in quantum, it shall order the defendant to pay damages to the plaintiff and at the same time may order the plaintiff to pay the defendant’s costs of proceedings. Where the plaintiff sought too high an amount, the costs may exceed the sum awarded in damages, the overall financial award being in favour of the defendant despite the finding that the plaintiff sustained loss which called for an award of damages. The purpose of these rules is to protect defendants from the plaintiffs who bring excessive claims (which otherwise may be well-founded in substance) and thereby unreasonably increase the costs of defendants’ legal representation by an advocate.

. Since the “loser pays” rule and the related rule requiring one party to pay the other party’s costs (including advocate’s fees) in proportion to their success in the proceedings, the value of which costs will depend on the value of the claim, discourages potential litigants from bringing (inflated) claims before the courts, the Court considers that it may be viewed as a restriction hindering the right of access to court (see Stankov, loc. cit.).

Such a restriction cannot be regarded as incompatible per se with Article 6 § 1 of the Convention. However, the amount of the costs assessed in the light of the particular circumstances of a given case is a material factor in determining whether or not a person enjoyed the right of access to court (see Stankov, cited above, § 52).

As the Court has underlined on a number of occasions, a restriction affecting the right to court will not be compatible with Article 6 § 1 unless it pursues a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the legitimate aim sought to be achieved (see, for example, Stankov, cited above, § 55). The Court must therefore examine whether this was achieved in the present case.

The Court notes that the rationale behind the “loser pays” rule and the related rule concerning costs outlined above is to avoid unwarranted litigation and unreasonably high litigation costs by dissuading potential plaintiffs from bringing unfounded actions or submitting exaggerated claims without bearing the consequences. The Court therefore considers that, by discouraging ill-founded litigation and excessive costs, those rules generally pursue the legitimate aim of ensuring the proper administration of justice and protecting the rights of others.

This view is not altered by the fact that those rules also apply to civil proceedings to which the State is a party, thus entitling it to recover from an unsuccessful party the costs of its representation. The State should not be considered to have limitless resources and should, like private parties, also enjoy protection from ill-founded litigation.

(d) As to whether the restriction was proportionate to the legitimate aim pursued

The Court reiterates that it is in the first place for the national authorities, and notably the courts, to interpret and apply domestic law. This applies in particular to the interpretation by courts of rules of a procedural nature. The Court’s role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention (see, for example, Tejedor García v. Spain, 16 December 1997, § 31, Reports 1997-VIII, and Pérez de Rada Cavanilles v. Spain, 28 October 1998, § 43, Reports 1998-VIII).

. The Court emphasises that the applicant in the present case did not challenge the rules contained in section 154(1) and (2) and of the Civil Procedure Act themselves. Rather, he considered that his claim for compensation had not been excessive. However, the Court cannot in the context of Article 6 § 1 of the Convention examine whether the amount the applicant was awarded for the ill-treatment sustained by the police officer was sufficient. That issue is addressed above under Article 13 in conjunction with Article 3 of the Convention (see paragraphs 38-41). The only issue the Court is entitled to examine under Article 6 § 1 of the Convention in the present case is whether ordering the applicant to pay the State the costs of its representation by the State Attorney’s Office, equal to advocate’s fees, unduly restricted his right of access to court.

In this connection the Court first reiterates that non-pecuniary damage is inherently difficult to assess and frequently involves research into previous cases in order to establish, on the basis of similar circumstances, the likely amount of any award of compensation (see Stankov, cited above, § 62). In the Stankov case the Court held that there had been a violation of the right of access to court primarily because it found that in a situation where the Government had not shown that there was developed or accessible case-law in respect of the level of compensation for unlawful detention, the applicant could not be blamed for putting a high estimate on the “value” of his freedom. In that case it was unclear how anyone, even a lawyer, could have determined what a “reasonable” claim in the applicant’s case would have been (see Stankov, loc. cit.).

However, this is not entirely so in the present case. In the Court’s view it is evident that in Croatia there are criteria to streamline judicial discretion in assessing the level of compensation awarded for non-pecuniary damage, in particular the 1995 Guidelines and the 2002 Guidelines (see paragraphs 30-31 above), adopted by the Supreme Court precisely for that purpose. Even though it seems that the 1995 Guidelines were not published, the applicant did not argue, and there is no evidence to suggest, that they were inaccessible to his representative. On the contrary, the fact that the amounts the applicant’s representative claimed in compensation for physical pain (HRK 15,000) and for fear (HRK 20,000) were not exaggerated in comparison with the upper limits set forth in the 1995 Guidelines (DEM 5,000, that is, HRK 18,600 for physical pain, and DEM 3,000, that is, 11,160 HRK for fear), indicates that the applicant’s advocate was familiar with those Guidelines (see paragraphs 13 and 30 above).

The Court further observes that most of the applicant’s total claim for compensation (HRK 335,000) concerned mental anguish suffered because of ill-treatment by the police. In respect of that type of non-pecuniary damage the applicant sought HRK 300,000 in compensation but was awarded only HRK 5,000 by the domestic courts. In this connection the Court notes that neither the 1995 Guidelines nor the 2002 Guidelines specify any amounts in respect of that type of damage, nor is there any indication in the case-law of the Supreme Court as to what the appropriate level of compensation for that kind of damage would be - damage which, in terms of section 200 of the 1978 Obligations Act (see paragraph 29 above), is considered as damage resulting from a breach of rights of personality. Nonetheless, the Court considers, having regard to the amounts of compensation provided for in the 1995 Guidelines for the most serious types of non-pecuniary damage such as death of a close relative (DEM 15,000, that is, HRK 55,800) or severe disability of an immediate family member (DEM 20,000, that is, HRK 74,400), that the applicant or his representative, although lacking clear guidance, had at least an indication that claiming HRK 300,000 for mental anguish suffered on account of ill-treatment by the authorities was most probably exaggerated. As to the applicant’s argument that his claim should not have been considered excessive because the purpose of compensation was not only to compensate the victim but also to prevent future misconduct (see paragraph 75 above), the Court notes that Croatian law does not provide for punitive (exemplary) damages (see paragraph 29 above).

The Government pointed out that, contrary to the applicant’s submissions, it was evident from the Supreme Court’s judgment of 24 April 2007 that the costs the applicant was eventually ordered to pay (HRK 19,000) were not higher than the compensation awarded to him (HRK 24,000). On the other hand, those costs amounted to 79% of his award of compensation.

The Court further notes that the overall financial award was even more favourable to the applicant in view of the fact that the State was also ordered to pay him the accrued statutory default interest on the compensation awarded (see Ermenkova v. Bulgaria (dec.), no. 75873/01, 14 June 2011) and that he eventually received HRK 18,907.28 on that account (see paragraph 18 above). In addition, the domestic courts did not order the applicant to pay statutory default interest on the amount of costs he was ordered to pay to the State. Therefore, if the HRK 18,907.28 is taken into account, the costs that the applicant had to pay the State (HRK 19,000) amounted to 44% of his overall financial award (HRK 42,907.28). However, the effect of adding the State’s costs to the costs of the applicant’s own legal representation (see paragraph 15 above) meant that he “lost” almost the entire compensation awarded and in fact received nearly nothing.

The Court considers that the applicant’s conduct in the proceedings in question, that is, submitting an excessive claim for damages, cannot justify such a significant reduction of the compensation awarded.

. In this connection, the Court first notes that the interpretation developed by the Supreme Court in the application of section 154 of the Civil Procedure Act gives the domestic courts considerable discretion as regards apportionment of the costs in cases of a partial success in proceedings, directing them to apply that provision qualitatively and not only quantitatively (see paragraphs 25-26 above), an approach that even allows them to award all costs to a party who succeeded in the proceedings in substance but not entirely in quantum. However, in the present case the domestic courts applied that provision mechanically without having sufficient regard to the specific circumstances of the applicant’s case, especially the fact that it concerned compensation for non-pecuniary damage sustained as a result of a criminal offence of ill-treatment by the police rather than an ordinary civil-law dispute between private parties.

. In particular, having regard to the police officer’s criminal conviction for ill-treating the applicant, it cannot be argued that the applicant’s claim for damages against the State was ill-founded and his action thus unwarranted. More importantly, there is no evidence that the State as defendant, being represented by the State Attorney’s Office and not by an advocate, in the particular circumstances of the present case incurred any additional costs on account of the fact that the applicant set his claim for damages too high. Therefore, the two main reasons for sanctioning such procedural misconduct, that is, to avoid unwarranted litigation and unreasonably high litigation costs (see paragraph 84 above), were not directly applicable in the instant case.

As a result thereof, the award of costs in the present case had some unacceptable consequences. First, it was paradoxical that the State took away with one hand - in fees for its legal representation by the State Attorney’s Office - a substantial portion of what it had awarded with the other (see, mutatis mutandis, Perdigão v. Portugal [GC], no. 24768/06, § 72, 16 November 2010). Second, the procedural sanction for the applicant’s minor procedural misconduct, namely bringing an inflated claim, was so severe that it unduly reduced the compensation he was awarded for such a serious wrongful act as the criminal offence of ill-treatment in the exercise of an official duty - an act prohibited by Article 3, which ranks among the most fundamental provisions of the Convention.

Accordingly, it cannot be said that the domestic courts’ decisions in the present case were proportionate to the legitimate aim pursed by the rule enunciated in section 154(2) of the Civil Procedure Act, which requires one party to pay the opposing party’s costs depending on their success in the proceedings, which costs are determined in proportion to the value of the claim. Its application in the present case resulted in a restriction which impaired the very essence of the applicant’s right of access to court.

There has therefore been a violation of Article 6 § 1 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE EXCESSIVE LENGTH OF PROCEEDINGS

The applicant also complained that the length of the above civil proceedings had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention.

The Court first refers to its decision in the Slaviček case, where it held that since 15 March 2002 a constitutional complaint under section 63 of the Constitutional Court Act (see paragraph 32 above) had represented an effective domestic remedy in respect of the length of court proceedings in Croatia (see Slaviček v. Croatia (dec.), no. 20862/02, ECHR 2002-VII).

The Court further refers to its judgment in the Pavić case, where it held that as of 29 December 2005 a request for the protection of the right to a hearing within a reasonable time under sections 27 and 28 of the Courts Act (see paragraph 33 above) has become an effective domestic remedy in respect of the length of court proceedings in Croatia (see Pavić v. Croatia, no. 21846/08, § 36, 28 January 2010).

It follows that in the period between 15 March 2002 and 24 April 2007 (the date on which the Supreme Court rendered its decision in the applicant’s case) the applicant could have resorted to those remedies. However, he did not do so.

The length of the proceedings in their part before the Constitutional Court following the applicant’s constitutional complaint of 19 October 2007, amounting to one year and eleven months, cannot in itself be considered unreasonable.

It follows that this complaint is inadmissible under Article 35 §§ 1 and 3 (a) of the Convention for non-exhaustion of domestic remedies and as manifestly ill-founded, respectively, and thus must be rejected pursuant to Article 35 § 4 thereof.

IV. ALLEGED VIOLATION OF ARTICLE 1 PROTOCOL No. 1 TO THE CONVENTION

Having regard to its case-law (see Perdigão, cited above), the Court, when communicating the case, invited the parties of its own motion to submit observations under Article 1 of Protocol No. 1 to the Convention on the issue of whether the sum the applicant had been awarded as compensation compared to the costs he had been ordered to pay to the State had been in breach of his right to peaceful enjoyment of his possessions. That Article 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.”

A. Admissibility

The Government disputed the admissibility of this complaint on the same grounds as the applicant’s complaint under Article 6 § 1 about the excessive costs of proceedings (see paragraph 44 above). In so doing they relied, mutatis mutandis, on the same arguments summarised in paragraphs 45, 48, 56 and 61 above, whereas the applicant relied on his arguments summarised in paragraphs 46, 49 and 57 above.

The Court refers to its above findings in respect of the applicant’s complaint under Article 6 § 1 concerning the excessive costs of proceedings, according to which all inadmissibility objections by the Government were to be rejected (see paragraphs 47, 50-55, 58-60 and 63-65 above), and considers that those findings apply mutatis mutandis in the context of Article 1 of Protocol No. 1 to the Convention. 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.

B. Merits

1. The arguments of the parties

The Government and the applicant relied on their respective arguments summarised in paragraphs 67-74 and 75 above.

2. The Court’s assessment

The Court reiterates that an applicant may allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions relate to his or her “possessions” within the meaning of that provision. “Possessions” can be “existing possessions” or claims that are sufficiently established to be regarded as “assets”. A claim may be regarded as an asset only when it is sufficiently established to be enforceable (see, for example, Stran Greek Refineries and Stratis Andreadis v. Greece, 9 December 1994, § 59, Series A no. 301-B). As the applicant’s claim for compensation in the present case was acknowledged in the amount awarded to him by the final judgment of the Supreme Court of 24 April 2007, the Court considers that this claim was sufficiently established to qualify as an “asset” protected by Article 1 of Protocol No. 1.

. The Court further considers that a substantial reduction of the amount of that claim resulting from the duty to pay the costs of proceedings constitutes an interference with the applicant’s right to peacefully enjoy his possessions (see Perdigão, cited above, § 61).

. Having regard to its case-law on the subject (see Perdigão, cited above, §§ 63-79) and to the reasons for which it has found a violation of Article 6 § 1 on account of the excessive costs of proceedings (see paragraphs 76-97), the Court considers that the interference in question was provided for by law, was in the general interest but did not strike the requisite fair balance between the general interest involved and the applicant’s right to peaceful enjoyment of his possessions, that is to say, was not proportionate.

There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.

V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

. The applicant also complained under Articles 2, 3 and 4 of Protocol No. 7 to the Convention, without further substantiating these complaints.

In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that the present case does not disclose any appearance of a violation of any of the above Articles of Protocol No. 7 to the Convention.

It follows that these complaints are inadmissible under Article 35 § 3 (a) of the Convention as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 thereof.

VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION

Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

The applicant claimed 2,800 euros (EUR) in respect of pecuniary damage, that is, the amount of costs (HRK 19,000) he was eventually ordered to pay the State in the civil proceedings complained of. He also claimed EUR 100,000 in respect of non-pecuniary damage.

The Government contested these claims.

The Court, having regard to its case-law (see Stankov, cited above, § 71, and Perdigão, cited above, §§ 85-86), considers it reasonable to award the applicant a total of EUR 8,800 covering all heads of damage, plus any tax that may be chargeable on that amount.

B. Costs and expenses

The applicant did not submit any claim for costs and expenses incurred in the proceedings before the domestic courts or before this Court. The Court therefore considers that there is no call to award him any sum on that account.

C. Default interest

The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the complaints concerning the right of access to court and the right to peaceful enjoyment of possessions admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 8,800 (eight thousand and eight hundred euros), plus any tax that may be chargeable, in respect of all heads of damage, to be converted into Croatian kunas at the rate applicable at the date of settlement;

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

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 18 July 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Isabelle Berro-Lefèvre
Registrar President