Costs disproportionate to the applicant’s income. Violation of the right of access to court!
JUDGMENT
Dragan Kovačević v. Croatia 12.05.2022 (app. no. 49281/15)
SUMMARY
The applicant, Dragan Kovačević, is a Croatian national born in 1988 and living in Slatina (Croatia).
The case concerns the costs before the Constitutional Court in 2014-15 in which the applicant challenged the decisions of the civil courts which deprived him of his legal capacity. In November 2012, the Social Welfare Center automatically appointed his mother to act as an ad litem guardian in court proceedings. The Constitutional Court annulled these decisions, but dismissed his claim for reimbursement. The decision on costs is based on a provision of domestic law which provides that each party to the proceedings before the Constitutional Court shall bear his own costs, unless the court decides otherwise.
Referring to Article 6 § 1 of the ECHR, the applicant complained that although the Constitutional Court upheld his constitutional appeal, it did not award him the costs of legal representation, claiming that this violated his right of access to a court under Article 6 § 1.
The Court noted that the cost of drafting a constitutional complaint (approximately 815 euros) was higher than the average salary in Croatia at the time. Therefore, it was a significant financial burden even for the average citizen, let alone for the applicant whose monthly income corresponded to a disability benefit of EUR 164.
In fact, it held that the restriction of the applicant’s right of access to a court had not been offset by the legitimate aims pursued, so that it could be justified. Besides, the Constitutional Court had not substantiated and sufficiently substantiated its decision.
The ECtHR found a violation of Article 6 § 1 of the ECHR and awarded the applicant EUR 815 for damages, EUR 3,000 for non-pecuniary damage and EUR 2,500 for costs and expenses.
PROVISION
Article 6
PRINCIPAL FACTS
The applicant, Dragan Kovačević, is a Croatian national who was born in 1988 and lives in Slatina
(Croatia).
The case concerns the costs of proceedings before the Constitutional Court in 2014-15 in which the
applicant challenged the civil courts’ decisions to deprive him of his legal capacity. The Constitutional
Court quashed those decisions but dismissed his claim for reimbursement of his costs. The ruling on
costs was based on a provision of domestic law providing that each participant in proceedings before
the Constitutional Court has to bear their own costs unless the court decides otherwise.
The applicant complains that even though the Constitutional Court allowed his constitutional
complaint, it did not award him the costs of legal representation, alleging that this breached his right
of access to court under Article 6 § 1 of the European Convention on Human Rights and his right to
peaceful enjoyment of his possessions under Article 1 of Protocol No. 1 to the European Convention.
THE DECISION OF THE COURT…
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.
