European Court of Human Rights

SECOND SECTION

CASE OF MAFALANI v. CROATIA

(Application no. 38765/16)

JUDGMENT
 

STRASBOURG

26 September 2023

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

In the case of Mafalani v. Croatia,

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

 Pauliine Koskelo, President,
 Lorraine Schembri Orland,
 Davor Derenčinović, judges,
and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 38765/16) 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 17 June 2016 by a Croatian national, Mr Amir Mafalani, born in 1982 and detained in Lepoglava ("the applicant"), who was represented by Ms L. Horvat, a lawyer practising in Zagreb;

the decision to give notice of the complaints concerning access to court and property rights to the Croatian Government ("the Government"), represented by their Agent, Ms Š. Stažnik, and to declare inadmissible the remainder of the application;

the parties' observations;

Having deliberated in private on 5 September 2023,

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

SUBJECT MATTER OF THE CASE

1.  The application concerns the applicant's complaint that the costs of civil proceedings he himself incurred and those he was ordered to pay to the State were higher than the compensation he was awarded for injuries he had sustained while being transported in a police van.

2.  In particular, on 9 April 2010 the applicant, a prisoner, was injured when the driver of the police van in which he was being transported suddenly had to break.

3.  On 9 February 2012 the applicant initiated mandatory settlement proceedings before the State Attorney's Office asking the State to pay him compensation for those injuries. He sought a total of 35,000 Croatian kunas (HRK, that is, 4,645 euros (EUR)) for non-pecuniary damage, together with the accrued statutory default interest. On 29 March 2012 his request was rejected.

4.  On 7 May 2012 the applicant brought a civil action against the State in the Zagreb Municipal Civil Court seeking HRK 18,000 (EUR 2,389) in compensation, together with the accrued statutory default interest. Specifically, he sought HRK 5,000 for fear, HRK 3,000 for physical pain and HRK 10,000 for breach of his dignity.

5.  After the court obtained an opinion from a medical expert, on 17 December 2012 the applicant reduced his claim and sought HRK 7,500 (EUR 995) of which HRK 500 for fear, HRK 1,000 for physical pain and HRK 6,000 for breach of his dignity.

6.  By a judgment of 27 November 2013, the Municipal Court ruled for the applicant in part. It awarded him HRK 1,220 (EUR 162) of which HRK 430 were awarded for fear and HRK 790 for physical pain, together with the accrued statutory default interest. It dismissed the remainder of his claim of HRK 6,280 (EUR 833) which in the most part concerned compensation sought for the breach of his dignity.

7.  As regards the costs of the proceedings, the Municipal Court held that the applicant succeeded with only 16.27% of his claim and the State with 83,73%. Having regard to all the changes in the value of the claim (see paragraphs 3-5 above), the court assessed the applicant's costs (consisting of fees chargeable for his legal representation by an advocate and the costs of the expert opinion) at HRK 2,899.52, and those of the State (consisting solely of fees chargeable for the State's representation by the State Attorney's Office) at HRK 3,781.23. The court then set the parties' costs off against each other and ordered the applicant to pay HRK 881.71 (EUR 117) to the State.

8.  The applicant appealed, arguing that it had been unrealistic to expect from him to set the correct amount of his compensation claim already at the outset and to not change it during the proceedings. He also relied on the Court's judgment in Klauz v. Croatia, no. 28963/10, 18 July 2013.

9.  On 24 August 2015 the Slavonski Brod County Court dismissed his appeal and upheld the first-instance judgment, which thereby became final.

10.  On 30 December 2016 the State paid the applicant a total of HRK 676.19 (EUR 90) as the judgment debt. That amount consisted of HRK 338.29 of the principal amount (HRK 1,220 of compensation awarded less HRK 881.71 the applicant was ordered to pay to the State in costs) and HRK 337.90 in accrued statutory default interest.

11.  On 11 February 2016 the Constitutional Court declared the applicant's subsequent constitutional complaint inadmissible, finding that the case did not raise a constitutional issue, and on 19 February 2016 it notified his representative of its decision.

12.  Before the Court the applicant complained, under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 thereto, that the costs of the proceedings he had been ordered to pay together with those he had himself incurred had been higher than the compensation he had been awarded.

THE COURT'S ASSESSMENT

1. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
   1. Admissibility

13.  The Government submitted that the applicant had not exhausted domestic remedies in that he had not asked the relevant authorities to write off in full or in part the costs of the proceedings he had been ordered to pay to the State, or asked that they be paid in several instalments.

14.  The Court reiterates that, if domestic law provides for several parallel remedies in different fields of law, an applicant who has sought to obtain redress for an alleged breach of the Convention through one of these remedies is not necessarily required to use others which have essentially the same objective (see, for example, Zustović v. Croatia, no. 27903/15, § 77, 22 April 2021).

15.  In that regard the Court notes that the applicant lodged an appeal and a constitutional complaint against the decision on costs (see paragraphs 7-8 and 11 above). The Government did not argue that these remedies were ineffective. Therefore, the applicant was not required to pursue yet another avenue of potential redress by resorting to the remedies relied on by the Government (see paragraph 13 above), even assuming their effectiveness. The Government's objection regarding the exhaustion of domestic remedies must therefore be rejected.

16.  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.

2. Merits

17.  The Court reiterates that unreasonable costs of proceedings may raise an issue under the Convention primarily in cases in which a party succeeds, at least in part, with the grounds of the civil claim, but not with its entire amount. It is in those cases that very high costs of proceedings may "consume" a large portion or even the entirety of the party's financial award in the case. If there are no weighty reasons to justify such a result, such a situation makes the litigation pointless and renders that party's right to a court merely theoretical and illusory (see Čolić v. Croatia, no. 49083/18, § 46, 18 November 2021 and the cases cited therein).

18.  The Court has already found a violation of Article 6 § 1 of the Convention in cases raising similar issues to the present one (see Klauz, cited above, §§ 42-97, and Čolić, cited above, §§ 25-60). Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the merits of the present application.

19.  In particular, the costs the applicant was ordered to pay to the State amounted to 72% of his compensation award (similar to Klauz, cited above, § 91, where they amounted to 79%). Moreover, the effect of deducting the applicant's own costs (see paragraph 7 above) from the sum he eventually received (see paragraphs 7 and 10 above) meant that he "lost" the entire compensation awarded and in fact received nothing (see Klauz, cited above, § 92, see also Čolić, cited above, § 51).

20.  The applicant's conduct in the proceedings in question cannot justify such an outcome. Specifically, under domestic law at the material time, plaintiffs were required to indicate the value of their claim when bringing their civil action and were, in principle, unable to increase it afterwards without the consent of the defendants (see Čolić, cited above, § 54). In those circumstances, and given that non-pecuniary damage is inherently difficult to assess, the applicant cannot be blamed for initially setting his claim for damages higher and reducing it after the expert opinion had been obtained (see paragraphs 3-5 above). The State as the defendant, being represented by the State Attorney's Office, did not incur any additional costs on account of those changes (see Klauz, cited above, § 95, and compare with Čolić, cited above, § 56).

21.  As regards the Government's argument that, in contrast to the situation in Klauz, the applicant in the present case had not succeeded with one of the grounds of his civil action (compensation for the alleged breach of dignity), the Court notes that this does not alter the fact that he still succeeded in proving the occurrence of the wrongful act in question and its causal link to the damage sustained (compare Čolić, cited above, §§ 49 and 58).

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

2. ALLEGED VIOLATION OF ARTICLE 1 of protocol no. 1 to THE CONVENTION

23.  The applicant also complained about the excessive costs of the proceedings under Article 1 of Protocol No. 1 to the Convention.

24.  Having regard to its well-established case-law on the subject (see Klauz, cited above, §§ 104-110, and Čolić, cited above, §§ 61-70) and to the reasons for which it has found a violation of Article 6 § 1 in the present case (see paragraphs 13-22 above), the Court finds that this complaint is also admissible and that it discloses a violation of Article 1 of Protocol No. 1 to the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

25.  The applicant claimed HRK 881.71 (EUR 117) which corresponded to the costs he had been ordered to pay to the State (see paragraph 7 above). He also claimed EUR 6,000 in respect of non-pecuniary damage, HRK 19,577.50 (EUR 2,598) in respect of costs and expenses incurred before the domestic courts and HRK 25,000 (EUR 3,318) for those incurred before the Court.

26.  The Government contested these claims.

27.  As regards the pecuniary damage, the Court awards the applicant EUR 117, that is, the amount sought, plus any tax that may be chargeable. It also awards him EUR 2,500 in respect of non-pecuniary damage, plus any tax that may be chargeable.

28.  Having regard to the documents in its possession, the Court considers it reasonable to award 1,540 EUR covering costs and expenses in the domestic proceedings and 1,660 EUR for the proceedings before the Court, plus any tax that may be chargeable to the applicant.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;
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, the following amounts:

(i)  EUR 117 (hundred and seventeen euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(ii)  EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii)  EUR 3,200 (three thousand two 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;

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

Done in English, and notified in writing on 26 September 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Dorothee von Arnim Pauliine Koskelo
 Deputy Registrar President