JUDGMENT OF THE EUROPEAN COURT OF HUMAN RIGHTS: KOVAČEVIĆ v. CROATIA

DRAGAN KOVAČEVIĆ v. CROATIA

Sitting as a Chamber composed of 7 judges, the European Court of Human Rights (hereinafter: the European Court) on 12 May 2022 held by five votes to 2 that there had been a violation of Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") in the applicant's case, namely the violation of the right to a fair trial for failure to adjudicate the costs of the proceedings before the Constitutional Court.

The applicant lodged a constitutional complaint against the decisions of the domestic courts which accepted the proposal of the Social Welfare Centre to deprive the applicant of his legal capacity. The Constitutional Court upheld the applicant's constitutional complaint, finding that his constitutional rights had been violated by the impugned court decisions, and quashed the impugned court decisions and remanded the case for retrial.

With regard to the costs of the proceedings, the Constitutional Court did not issue any decision, but stated in its reasoning:

"In relation to the requested cost of the constitutional court proceedings, the Constitutional Court points out that in accordance with Art. 23. of the Constitutional Act on the Constitutional Court of the Republic of Croatia (Official Gazette No. 99/99.0 29/02 and 49/02 - consolidated text; hereinafter: the Constitutional Act) in constitutional proceedings each participant bears their own costs, if The Constitutional Court does not decide otherwise. Since the Constitutional Court did not decide otherwise, in the present case the applicant shall bear their own costs."

The European Court's view is that the proceedings for deprivation of legal capacity were of the utmost importance to the applicant, so it is undisputed that the proceedings before the Constitutional Court were necessary for the applicant to protect his fundamental rights, dignity, personal and family life. Therefore, there is no doubt that he needed professional legal assistance, which can only be provided by lawyers in Croatia, and the cost of the constitutional complaint in the amount of HRK 6,250.00 or EUR 815.00 was a significant financial burden for the applicant, especially for a person whose monthly income consisted of HRK 1,250.00 disability allowance.

Moreover, as the Republic of Croatia is the one responsible for the violation of constitutional rights and not the Social Welfare Centre, which cannot be held responsible for the unconstitutional actions of state bodies (courts), it would therefore be completely unfounded for the Social Welfare Centre to reimburse the applicant for the costs of the proceeding before the Constitutional Court, as it did not participate in or cause the proceeding.

The European Court's conclusion is that the refusal to award the costs of filing a constitutional complaint constitutes a restriction on his right of access to court which was disproportionate.

The applicant was awarded just satisfaction in the amount of EUR 815.00 in respect of pecuniary damage and EUR 3,000.00 in respect of non-pecuniary damage. At the same time, the European Court awarded the applicant EUR 2,500.00 in respect of costs and expenses.

Please note that the judgment in question is not final. The finality will follow if the Republic of Croatia does not submit a request for reconsideration of the judgment within 3 months, or, if such request occurs, when the committee makes a decision on that request or when the Grand Chamber of the European Court renders a judgment.