Dragan Kovačević v. Croatia (European Court of Human Rights)

Information Note on the Court’s case-law 262
May 2022

Dragan Kovačević v. Croatia – 49281/15

Judgment 12.5.2022 [Section I]

Article 6
Constitutional proceedings
Article 6-1
Access to court

Disproportionate refusal to award costs for complaint before Constitutional Court concerning applicant’s divestment of legal capacity: violation

Facts – The applicant, who has a mental disability, was divested of his legal capacity after the institution of proceedings by relevant authorities before the domestic civil courts. The applicant made a constitutional complaint to the Constitutional Court, which quashed the civil courts’ decisions but dismissed his claim for reimbursement of costs. The ruling on costs was based on a domestic law provision providing that each participant in proceedings before the Constitutional Court has to bear its own costs unless the court decides otherwise.

Law – Article 6 § 1 :

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

A rule that a participant in proceedings before the court has to bear its own costs, unless the court decides otherwise, could not be regarded as incompatible per se with Article 6 § 1. The Court needed to ascertain in the present case whether the effects of the application of the rule in question were compatible with Article 6 § 1.

The cost of drafting a constitutional complaint (equivalent to EUR 815) had been more than the average salary in Croatia at the time. It had thus constituted a significant financial burden even for the average citizen, let alone the applicant whose monthly income had consisted of the equivalent of EUR 164 in disability benefits.

Having regard to the Court’s case-law and to the applicant’s particular situation, the Constitutional Court’s refusal to award the applicant the costs of his constitutional complaint had thus constituted a restriction of his right of access to court.

(b) As to whether the restriction pursued a legitimate aim

Although constitutional rights are those which individuals and private legal entities have against the State and other public entities, proceedings before the Croatian Constitutional Court initiated by a constitutional complaint were formally one-party proceedings. Those intending to lodge constitutional complaints thus did not run the risk, normally present in civil proceedings, that, if unsuccessful, they would have to bear not only their own costs but reimburse the costs of the opposing party. That absence of such a risk, together with the absence of an obligation to pay court fees in proceedings before the Constitutional Court, might thus result in that court becoming overburdened with a large number of unmeritorious constitutional complaints, which could jeopardise its proper functioning.

The Court was therefore willing to accept that the aim behind the rule, on which the decision on costs had been based in the present case, had been to secure that court’s smooth functioning, and to protect the State budget.

Nevertheless, the impugned provision allowed the Constitutional Court to make an exception. That exception not only provided a necessary flexibility, but also suggested that, in certain cases, application of the default rule might not be justified by the identified legitimate aims.

(c) As to whether the restriction was proportionate

The proceedings before the Constitutional Court had been of existential importance for the applicant, as the impugned decisions of the civil courts had deprived him of his legal capacity. In that regard, the applicant was a person suffering from a mental disability and therefore had to be legally represented to effectively protect his rights, it being understood that the assistance of an advocate before the Constitutional Court could not be seen as unnecessary even for non-vulnerable individuals, because that court decided on complex issues which, for any lay person, might be difficult to grasp (Bibić v. Croatia).

The Court also referred to its finding that the costs of the constitutional complaint had constituted a significant financial burden even for an average citizen, let alone for a person of low income like the applicant.

Furthermore, the domestic law had not provided for the possibility of obtaining legal aid in proceedings before the Constitutional Court. In any event, legal aid was not an individual right and not an obligation that had to be exercised, and it should not prevent applicants from choosing to be represented by an advocate (see Černius and Rinkevičius v. Lithuania). Lastly, having regard to the identified legitimate aims, there was no difference between the State advancing the costs of the applicant’s legal representation through a legal aid scheme or reimbursing them afterwards because he had succeeded with his constitutional complaint.

The Court was mindful that social services were often faced with difficult and delicate decisions, especially when, as in the present case, they had to decide whether to initiate the relevant proceedings to deprive a person with a mental disability of the capacity to act. They might adopt a more defensive approach to their duties if, each time the judicial authorities did not agree with their initiative, they had to pay the costs of the proceedings to the counterparty. However, as indicated, proceedings before the Croatian Constitutional Court initiated by a constitutional complaint were formally one-party proceedings. Any costs awarded would not therefore have been paid by social services, which had not been a participant in the proceedings. In the present case, therefore, there had been no risk that the award of costs would have had a chilling effect on social services in the performance of their duties.

Lastly, in the circumstances of the present case, the Constitutional Court had been required to provide reasons for its decision on costs rather than merely using the same wording as in the relevant domestic law provision. However, it had not given any meaningful reasons for its decision.

Overall, in the specific circumstances of the present case, the restriction of the applicant’s right of access to a court had not been justified by the legitimate aims pursued.

Conclusion: violation (five votes to two).

Article 41: EUR 815 in respect of pecuniary damage; EUR 3,000 in respect of non-pecuniary damage.

(See also Bibić v. Croatia (dec.), 1620/10, 28 January 2014; Černius and Rinkevičius v. Lithuania, 73579/17 and 14620/18, 18 February 2020)

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