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.
KLAUZ v. CROATIA JUDGMENT1
In the case of Klauz v. Croatia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
IsabelleBerro-Lefèvre, President,
ElisabethSteiner,
KhanlarHajiyev,
Linos-AlexandreSicilianos,
ErikMøse,
KsenijaTurković,
DmitryDedov, 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
1.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.
2.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.
3.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.
4.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
5.The applicant was born in 1949 and lives in Donji Miholjac.
6.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
7.On 28 January 1997 the physician who examined the applicant after the incident filed a criminal report with the relevant police authorities.
8.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.
9.By a judgment of 28 October 1997 the Municipal Court found M.B. guilty as charged and sentenced him to three months’ imprisonmentbut 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.
10.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
11.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 295,000Croatian 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.
12.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.
13.In written submissions of 15 June 2001 the applicant’s representative raised his initial claim for compensation to HRK 335,000, of which HRK300,000 was sought for mental anguish caused by the ill-treatment, HRK15,000 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.
14.On 17 September 2002the Municipal Court gave judgment, whereby it awarded the applicant a total of HRK 14,500 in compensation for non-pecuniary damagesustained by arbitrary deprivation of liberty and ill-treatment, together with statutory default interest running from 17September 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 HRK5,000 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.
15.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.
16.On 9 May 2006 the Zagreb County Court (Županijski sud u Zagrebu) dismissed an appeal by the applicant and upheld the first-instance judgment.
17.Following an appeal on points of law (revizija) by the applicant, on 24April 2007 the Supreme Court (Vrhovni sud Republike Hrvatske) reversed the lower courts’ judgments in part and awarded him a total of HRK 24,000in 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.
18.On 24 December 2007 the State paid the applicant a total of HRK32,207.28 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.
19.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.”
20.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
21.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
22.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
23.On 9 July 2001 the Constitutional Court delivered decision no.UIII-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 Article14,Article 19paragraph2 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
24.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 partysucceeds in the proceedings in part, the court may, having regard tothe success achieved,orderthat each partyshall bear its owncosts or that one party shall reimbursethe otherpartyand theintervenerthe correspondingpart of the costs.
(3)The court maydecide that oneparty reimbursesin full the costs incurred bytheopposing partyand his or herintervenerifthe opposing partydid notsucceedwithonly a relativelyinsignificantpart ofhis 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 shallreimburse 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
25.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.Rev341/09-2 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.”
26.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.”