The payment if costs incurred by the State are a disproportionate burden on the applicants. Violation of the right to respect for property
JUDGMENT
Bursać and others v. Croatia 28.04.2022 (app. no. 78836/16)
SUMMARY
The applicants, Bosiljka Bursać, Đuka Damjanović, Nena Damjanović, Danica Dubajić and Milica Vasiljević, are Croatian nationals born between 1940 and 1953 and live in Apatin, Gračac, Srb and Zagreb.
In 1995 the applicants’ father was killed by Croatian soldiers during the battle to regain control of Krajina in the war after the break-up of Yugoslavia. In 2005 they turned against the State seeking compensation.
The Zagreb Municipal Civil Court ordered the applicants to pay HRK 60,000 to the State for legal costs.
Pursuant to Article 2 (right to life), Article 6 § 1 (right to a fair trial) of the ECHR and Article 1 of the First Additional Protocol (protection of property), the applicants complained, in particular, that the investigation was inadequate and that the excessive court costs they paid violated the peaceful enjoyment of their property.
The Court ruled that it did not need to consider all the objections raised, but to focus on the Government’s objection to the exhaustion of domestic remedies. On this basis, and given that the applicants’ complaints had not been examined by the Constitutional Court, it accepted the Government’s objection. The applicants’ complaint under Article 2 of the Convention must therefore be rejected on the basis of Articles 35 §§ 1 and 4 on the ground that the domestic remedies have not been exhausted.
As regards the alleged breach of Article 1 of the First Additional Protocol, the Court held that ordering the applicants to bear the total cost of the State proceedings in the civil proceedings constituted a disproportionate burden on them.
The ECtHR found a violation of the right to respect for property and jointly awarded the applicants EUR 5,000 for non-pecuniary damage and EUR 2,000 for costs.
PROVISIONS
Article
Article 6 par. 1
Article 1 of the First Additional Protocol
PRINCIPAL FACTS
The applicants, Bosiljka Bursać, Đuka Damjanović, Nena Damjanović, Danica Dubajić and Milica
Vasiljević, are Croatian nationals who were born between 1940 and 1953 and live in Apatin, Gračac,
Srb and Zagreb.
The applicants’ father was an ethnic Serb who was allegedly killed in 1995 by Croatian soldiers
during the battle to regain control over Krajina in the war following the dissolution of Yugoslavia.
They later sued the State for compensation in 2005. The case concerns the investigation into his
death. It also concerns the applicants having to pay the State’s costs in the civil proceedings.
Relying on Article 2 (right to life) and Article 6 § 1 (right to a fair trial) of the European Convention on
Human Rights, and Article 1 of Protocol No. 1 (protection of property) to the European Convention,
the applicants complain, in particular, that the investigation was inadequate and that the excessive
costs breached their peaceful enjoyment of possessions.
THE DECISION OF THE COURT…
ALLEGED VIOLATION OF ARTICLE 2
The Court does not have to examine all the objections raised but will focus on the Government’s plea of non-exhaustion of domestic remedies.
For the same reasons as outlined in the decision in J. and Others v. Croatia, the Court is of the view that in the present case the Government raised the objection of non-exhaustion of domestic remedies in a timely manner.
Likewise, in J. and Others v. Croatia the Court dismissed as unfounded a similar objection by the applicants that a constitutional complaint was not an effective remedy for their complaint.
The Court therefore confirms the conclusion it reached in Kušić and Others v. Croatia ((dec.), no. 71667/17, 10 December 2019) to the effect that in 2019 a constitutional complaint became an effective domestic remedy for complaints under Articles 2 and 3 of the Convention concerning ineffective investigations.
The Court notes that in 2017 the applicants lodged a constitutional complaint in which they complained that the investigation into the killing of their father had been ineffective, but the Constitutional Court did not examine that complaint. However, the Constitutional Court’s decision in question was delivered in 2017, two years before a constitutional complaint became an effective remedy for such complaints.
In that connection, since the investigation into the killing of the applicants’ father is still ongoing the Court holds, as in Kušić and Others, J. and Others v. Croatia and Marić and Others (all cited above), that the applicants in the present case are required to lodge a constitutional complaint, it being understood that the period during which the proceedings were pending before the Court should not be held against them.
Indeed, in accordance with the principle of subsidiarity, one of the fundamental principles on which the Convention system is based, the respondent State should be afforded the opportunity to put matters right through its own legal system before answering before an international body for its acts or omissions.
The Court would stress that it remains open to the applicants, following the termination of the proceedings before the Constitutional Court or if those proceedings become unreasonably protracted, to bring their complaints before the Court if they still consider themselves to be victims of a violation of the Convention.
Against the above background, the Court upholds the Government’s objection. The applicants’ complaint under Article 2 of the Convention must therefore be rejected under Article 35 §§ 1 and 4 for non-exhaustion of domestic remedies.
ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
In the particular circumstances of the present case, the Court considers that ordering the applicants to bear the full costs of the State’s representation in the civil proceedings amounted to a disproportionate burden on them.
There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.
The Court notes that, although in the present case the domestic courts failed to consider whether in the particular circumstances applying the “loser pays” rule without any flexibility placed an excessive individual burden on the applicants, in 2021 the Supreme Court, in a case which concerned a similar issue, conducted such an assessment and ultimately ordered that each party should bear their own costs of proceedings. By way of observation the Court notes that in cases such as the present one the State has a number of additional possibilities to achieve the necessary flexibility. The Court first refers to the Government of Croatia’s decision and decree of 2009 and 2013 respectively, Moreover, precisely because the State is a party to the civil proceedings in such cases, the State Attorney’s Office may opt not to claim costs or, if the costs order is issued, not to seek payment of those costs or enforcement of the costs order (see Kresović and Others v. Croatia (dec.), no. 5864/12, § 19, 12 September 2017).
ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
The applicants brought the same complaint under Article 6 § 1 of the Convention.
Having regard to its findings under Article 1 of Protocol No. 1 above, the Court considers that it is not necessary to give a separate ruling on the complaint under Article 6 § 1 of the Convention
