SMOLIC v. CROATIA - 51472/12 (Judgment : Article 6 - Right to a fair trial : First Section Committee) [2018] ECHR 241 (15 March 2018)

In the case of Smolić v. Croatia,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

Aleš Pejchal, President,
Armen Harutyunyan,
Jovan Ilievski, judges,
and Renata Degener, Deputy Section Registrar,

Having deliberated in private on 20 February 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 51472/12) 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 Pavo Smolić ("the applicant"), on 5 July 2012.

2. The applicant was represented by Ms V. Šnur, a lawyer practising in Vinkovci. The Croatian Government ("the Government") were represented by their Agent, Ms Š. Stažnik.

3. The applicant alleged that the national court had violated his right to a fair hearing.

4. On 1 April 2015 the above complaint was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1934 and lives in Stari Mikanovci.

6. The applicant was an employee of the State's railway company, Hrvatske željeznice. He suffered a work-related accident and became unable to work.

7. On 26 April 1977 the Osijek County Court (Okružni sud u Osijeku) awarded the applicant a lump sum in compensation and ordered the defendant - Hrvatske željeznice - to pay him monthly payments in respect of the difference between his disability pension and the salary he would have been earning were it not for his inability to work.

8. On 5 May 1988 the Vukovar Municipal Court (Općinski sud u Vukovaru) increased the above-mentioned monthly payments. At the same time, it established that the applicant's inability to work was only 50% due to the above-mentioned accident, and 50% due to a pre-existing illness.

9. On 24 December 1990 the applicant instituted civil proceedings against Hrvatske željeznice, seeking that the above-mentioned monthly payments be increased on the grounds of changed circumstances.

10. The defendant did not oppose an increase in the monthly payments, but disputed the amount requested.

11. The Vukovar Municipal Court commissioned a report from an accounting expert, and on 13 February 1991 the expert witness submitted his report.

12. At a hearing held on 20 February 1991 the expert witness gave oral evidence.

13. On 24 April 1991 the first-instance court allowed the applicant's claim in part, but on 16 August 1991 the Vukovar County Court (Županijski sud u Vukovaru) quashed the first-instance judgment in part, because it found that the first-instance court had failed to correctly establish the facts. It remitted the case for fresh consideration and ordered the first-instance court to establish, in terms of a percentage, how much the applicant's inability to work was due to his pre-existing illness.

14. In the resumed proceedings, the first-instance court commissioned a report from an accounting expert and ordered the applicant to pay costs in advance in the sum of 696.55 Croatian kunas (HRK).

15. On 5 June 2003 the expert witness submitted his report and the defendant objected to the expert's findings.

16. On 15 October 2003 the expert witness submitted his observations in reply to the defendant's objection.

17. At a hearing on 28 November 2003 the court heard oral evidence from the expert witness. He stated that he could not precisely determine individual amounts until the Croatian Pension Fund adjusted the applicant's pension.

18. On 22 December 2003, after the Croatian Pension Fund had adjusted the applicant's pension, the expert witness submitted an additional report.

19. At a hearing on 23 January 2004 the expert witness again gave oral evidence.

20. On the same date, on the basis of the expert witness's report, the first-instance court issued a judgment allowing the applicant's claim in part.

21. On 3 May 2005 the Vukovar County Court quashed the judgment of 23 January 2004 for substantial violation of the civil procedure rules and ordered a fresh consideration of the case. It held that the first-instance court had failed to take into account the fact: that the first-instance judgment of 24 April 1991 had become final as regards an amount of 63.80 former Yugoslav dinars (YUD) per month payable for the period from 1 January 1991 onwards; the applicant had turned 60 on 15 August 1994; and he should have lodged an application for his disability pension to be recalculated as an old-age pension.

22. At a hearing held on 15 September 2005 the first-instance court commissioned a further report from an accounting expert, in accordance with the instruction given by the second-instance court. Specifically, it ordered the expert witness, in calculating the monthly amount, to take into account the amount of 63.80 dinars which had already been awarded, as well as the fact that the defendant was 50% responsible for the damage at issue, and to establish whether the applicant had used his right to have his disability pension recalculated as an old-age pension when he had turned 60.

23. Meanwhile, the defendant split into four companies, and the first-�instance court ordered the applicant to correct his claim by accurately identifying the defendant.

24. On 2 November 2007 the first-instance court declared the claim inadmissible, because it held that the applicant had failed to properly correct the claim.

25. Upon an appeal by the applicant, on 9 September 2008 the Vukovar County Court quashed the first-instance decision, because it held that the applicant had already identified the defendant.

26. In the resumed proceedings, at a hearing held on 22 December 2008 the first-instance court commissioned a report from an accounting expert in accordance with the second-instance court's instruction given in its judgment of 3 May 2005, and ordered the applicant to pay the related costs in the amount of HRK 2,578 in advance.

27. On 15 January 2009 and 3 February 2009 the applicant asked for an exemption from paying the costs of the expert witness, claiming that, given his financial situation, and the fact that his pension was HRK 2,313 per month and his wife was unemployed and without any income, he was unable to pay those costs without putting his own and his wife's subsistence at risk. He asked for those costs to be covered by the first-instance court's funds, a possibility provided for by the Civil Procedure Act. He submitted a certificate from the Croatian Pension Fund concerning his pension and certificates demonstrating his and his wife's income.

28. At a hearing on 3 February 2009 the applicant reiterated all the arguments and repeated that he had not been able to pay for the costs of the expert report. He asked the court to allow his claim as specified in his submissions of 16 February 2007. Neither party put forward any new evidence. The court set aside its decision of 22 December 2008 regarding a further report from an accounting expert, because the applicant had failed to pay for the costs, and concluded the hearing.

29. On 16 February 2009, relying on the rules regulating the burden of proof, the first-instance court issued a judgment dismissing the applicant's claim. It held that, owing to his failure to pay for the costs of the expert report, the court had not been able to establish the exact amount of the monthly payments. In its reasoning, the first-instance court stated that the Vukovar County Court, in its decision of 11 November 2008, had awarded the applicant HRK 20,000 for the violation of his right to a trial within a reasonable time, and that he could have paid for the costs of the expert witness with that money.

30. The applicant lodged an appeal, claiming that the amount awarded to him for the violation of his right to a trial within a reasonable time had been paid to him on 13 March 2009, namely after the first-instance judgment had already been delivered.

31. On 4 February 2010 the second-instance court upheld the first-�instance judgment. In addition, it held that the applicant failed to demonstrate when the State had deposited the amount of HRK 20,000 on a bank account of his representative.

32. The applicant then lodged an appeal on points of law (revizija), which the Supreme Court declared inadmissible on 10 January 2011.

33. The applicant then lodged a constitutional complaint with the Constitutional Court, and on 11 July 2012 the Constitutional Court declared it inadmissible as manifestly ill-founded.

II. RELEVANT DOMESTIC LAW AND PRACTICE

34. The relevant provisions of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 29/1978, 39/1985 and 57/1989, and Official Gazette of the Republic of Croatia nos. 53/1991, 73/1991, 111/994, 7/1976, 91/1996, 112/1999 and 88/2001), as in force at the material time, provided:

Section 195

"...

(2) If the injured person loses income as a result of a complete or partial inability to work, or his/her needs becoming greater on a permanent basis, or possibilities for his/her further development and progress being ruined or diminished, the person responsible shall pay to the injured person monthly payments as compensation for damage."

Section 196

"The court may increase the monthly payments for a future period at the request of the injured party, but it may also reduce or suspend the monthly payments if the circumstances of which the court was aware at the time of delivering the previous judgment have changed significantly."

35. The relevant provisions of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/1991, 91/1992, 112/1999, 81/2001, 117/2003, 88/2005, 84/2008, 96/2008 and 123/2008), as in force at the material time, provided:

Section 8

"The court shall use its discretion to decide which facts it will find proved, after conscientious and careful assessment of all the [pieces of] evidence presented individually and as a whole, and taking into consideration the results of the entire proceedings."

Section 11

"The party who, for reasons of ignorance, fails to avail himself or herself of his or her rights under this Act shall be advised by the court as to which procedural actions he or she may take."

Section 109

"(1) If a submission is incomprehensible or does not contain everything necessary in order that it may be proceeded upon, the court shall instruct the person who submitted it to amend or supplement it, and for this purpose it may invite him or her to come to the court, or return the submission to him or her for amendment.

... "

Section 153

"(1) When a party proposes [that something be introduced as] evidence, he or she shall be obliged, by order of the court, to pay, in advance, the amount needed to cover the costs incurred in relation to the introduction of the evidence.

(2) When both parties propose [that something be introduced as] evidence, or when this is ordered by the court of its own motion, the court shall order that the amount needed to cover the costs be deposited by both parties in equal parts. If the court of its own motion orders hearing evidence, it may order that the amount be deposited by only one of the parties.

(3) The court shall not obtain the evidence if the amount needed to cover the costs is not deposited within the time-limit fixed by the court. In this case, the court shall, taking account of all the circumstances, use its own discretion to assess the importance of the fact that a party has failed to deposit the amount needed to cover the costs within the specified time-limit.

(4) If the court hears evidence even though a deposit for [obtaining this evidence] has not been paid, it shall, by a ruling, order the party [in question] to pay a certain sum to the witness or the expert witness within eight days. An appeal against such a ruling does not postpone enforcement.

(5) As an exception to the provision of subsection 3 above, if the court of its own motion orders the hearing of evidence for the purpose of establishing facts in relation to the application of section 3 subsection 8 above, and the parties fail to deposit the specified amount, the costs of hearing the evidence shall be covered by court funds."

Section 172

"(1) The court may exempt a party who, in terms of his or her financial situation, is unable to pay those costs without harm to his or her subsistence or that of his or her family from paying litigation costs.

(2) An exemption from paying litigation costs covers an exemption from paying fees and an exemption from paying a deposit for witness expenses, expert witnesses, inquiries and court announcements.

(3) The court may exempt a party from paying court fees under the conditions prescribed by the Court Fees Act.

(4) In rendering a decision on exempting [a party] from paying litigation costs, the court shall carefully assess all the circumstances, and especially take into account the value of the subject of the dispute, the number of people the party supports, and the income of the party and the members of his or her family."

Section 173

"(1) The decision on exempting [a party] from paying litigation costs shall be rendered by the first-instance court upon an application by the party.

(2) Along with the application, the party shall provide a certificate from the competent administrative body confirming his or her financial means.

(3) The certificate of financial means shall indicate the amount of tax paid by the household and individual members of the household, and other sources of income and the overall material situation of the party to whom the certificate is issued.

(4) More detailed regulations on the issue of certificates of financial means shall be issued by the authority determined by special regulations.

(5) If necessary, the court may, of its own motion, obtain the necessary data and information about the financial means of the party requesting an exemption, and may also hear the opposing party on the subject.

... "

Section 219

"(1) Each party is obliged to provide facts and present evidence on which his or her claim is based, or to dispute the statements and evidence of his or her opponent.

..."

Section 221a

"If, on the basis of the evidence put forward (section 8), the court cannot establish a fact with certainty, it shall rule on the existence of the fact by applying the rule of the burden of proof."

36. The relevant provisions of the Legal Aid Act (Zakon o besplatnoj pravnoj pomoći, Official Gazette no. 62/2008 and 81/2011), in force between 1 February 2009 and 31 December 2013, provided:

Section 4

"...

(4) Granting any form of legal aid shall include exempting [a party] from paying fees and litigation costs."

Section 15

"(1) The procedure for granting legal aid is initiated by lodging an application with the [county State administration office or the Zagreb office].

... "

Section 16

"(1) An application shall be submitted to the office on a prescribed form, accompanied by a written statement by the applicant and members of his [or her] household about the property [which they own], and a written statement by the applicant and his or her family members permitting access to all data relating to [their] property and income.

... "

Section 18

"First-instance courts, first-instance administrative bodies, legal entities and legal aid offices are obliged to provide information on the possibilities and conditions relating to the use of legal aid, as well as application forms."

Section 77

"This Act shall enter into force on the eighth day after its publication in the Official Gazette, save for sections 15 and 16, which shall enter into force on 1 February 2009 ... "

37. The Government referred to case no. Gž-700/98 of 28 April 1999, in which the Zagreb County Court (Županijski sud u Zagrebu) had noted that a party who did not submit with his or her exemption application a certificate of financial means for him or herself and his or her spouse, and did not give a statement for the court record, was not entitled to an exemption from paying court fees.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

38. The applicant complained that his right to a fair trial had been violated when the domestic courts had refused his application for an exemption from paying costs related to the expert witness's report without considering any evidence about his financial situation, which had led to his claim for damages being dismissed. He relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows:

"In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ..."

A. Admissibility

39. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties' arguments

40. The applicant argued that the first-instance court had commissioned several expert-witness reports. In addition to this, an expert had given oral evidence numerous times. Nevertheless, the court had dismissed his claim because he had not paid for the costs of additional expert-witness evidence, without taking into consideration the previous reports.

41. As to the Government's allegations about the possibility to ask for legal aid, the applicant stressed that the Croatian Bar Association had granted him a pro bono lawyer. However, he had not been able to ask for an exemption from paying the costs of the proceedings under the Legal Aid Act, because it had come into force on 1 February 2009, after the proceedings had already ended. He also pointed out that he lived with his wife, who had no income, and their son, whose only income was a disability pension in the amount of HRK 1,696.79 (about 220 euros (EUR)), and his only income was a disability pension in the amount of HRK 2,398.66 (about EUR 300).

42. The Government firstly argued that the applicant had enjoyed his right of access to a court, given that he had obtained two judicial decisions on the merits: one that had allowed his claim in part, and another that had dismissed his claim in part, owing to the fact that he had failed to prove it. In this connection, they asserted that the second-instance court had quashed the first-instance judgment of 23 January 2004 owing to several shortcomings, and that it was the applicant's fault that these shortcomings had not been corrected in the fresh set of proceedings.

43. The Government further submitted that, at a hearing held on 3 February 2009, the applicant had given up on the idea of commissioning a report from an expert. Moreover, he had not provided further evidence and had not raised an objection when the first-instance court had set aside its decision of 22 December 2008. They also pointed out that the applicant had failed to prove that he had not been able to pay the costs of the expert-�witness report, because he had failed to submit a certificate from the competent tax authority confirming his income and assets, as provided for under the relevant rules of the Civil Procedure Act. He had also had a possibility to ask for legal aid, as provided for in the Legal Aid Act, which would have allowed him to be exempted from paying the costs of an expert witness. Lastly, had he succeeded in the proceedings, his opponent would have reimbursed all his litigation costs.

44. The Government additionally argued that the alleged restriction had been lawful, because it had its legal basis in sections 7 and 220-223 of the Civil Procedure Act. Further to this, it had pursued a legitimate aim, the good administration of justice, and it had been proportionate to the aim sought. In this connection, they argued that the proceedings in the instant case had lasted twenty years, and that the applicant had only been ordered to pay HRK 696.55 for the expert report of 5 March 2003 and then HRK 2,578 on 22 December 2008. Moreover, he had been exempted from paying the relevant court fees, thus he had enjoyed free legal proceedings. Therefore, it could not be said that an excessive individual burden had been imposed on the applicant.

2. The Court's assessment

(a) General principles

45. The Court reiterates that Article 6 § 1 of the Convention secures for everyone the right to have any claim relating to his or her civil rights and obligations brought before a court or tribunal. The right of access to a court includes not only the right to institute proceedings, but also the right to obtain a judicial "determination" of the dispute (see, for example, Kutić v. Croatia, no. 48778/99, § 25, ECHR 2002-II; Multiplex v. Croatia, no. 58112/00, § 45, 10 July 2003; Menshakova v. Ukraine, no. 377/02, § 52, 8 April 2010; and Šimecki v. Croatia, no. 15253/10, § 42, 30 April 2014). The most important factor is that the dispute submitted for adjudication was the subject of a genuine examination (see Kostadin Mihaylov v. Bulgaria, no. 17868/07, § 39, 27 March 2008; Yanakiev v. Bulgaria, no. 40476/98, § 69, 10 August 2006; and Šimecki v. v. Croatia, cited above, § 42)

46. The right of access to a court is not absolute, but may be subject to limitations; these are permitted by implication, since the right of access "by its very nature calls for regulation by the State, regulation which may vary in time and in place according to the needs and resources of the community and of individuals". In laying down such regulation, the Contracting States enjoy a certain margin of appreciation. Whilst the final decision as to observance of the Convention's requirements rests with the Court, it is no part of the Court's function to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this field. Nonetheless, the limitations applied must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Stanev v. Bulgaria [GC], no. 36760/06, § 230, ECHR 2012).

47. The Court has found on several occasions that the court fee levied on parties to civil proceedings constituted a restriction that impaired the very essence of the applicants' right of access to a court guaranteed by Article 6 § 1 of the Convention (see Kreuz v. Poland, cited above, § 60; Jedamski and Jedamska v. Poland, no. 73547/01, § 60, 26 July 2005; and Podbielski and PPU Polpure v. Poland, no. 39199/98, § 64, 26 July 2005). In those cases, having regard to the principles established by its case-law in respect of the right of access to a court, the Court considered that the amount of the court fees assessed in the light of the circumstances of a given case, including the applicants' ability to pay them and the phase of the proceedings at which that restriction was imposed on them, were factors which were material in the determination of whether or not a person had enjoyed his right of access to a court (see Stankiewicz v. Poland, no. 46917/99, § 59, ECHR 2006-�VI).

(b) Application of these principles to the present case

(i) Whether there was a restriction of the applicant's right to a court

48. The central issue in the proceedings the applicant instituted before the national courts concerned the fact that the national courts had dismissed his claim on account of his failure to pay for the fees of the accounting expert's report, without considering any evidence concerning his financial situation. Even though the first-instance court commissioned three reports by accounting experts (see paragraphs 10, 13 and 17 above) and heard oral evidence from an expert witness three times (see paragraphs 11, 16 and 18 above), it held that it could not assess the applicant's claim without a further report from an accounting expert, and dismissed his claim, relying on the procedural rules regulating the burden of proof and his obligation to produce the evidence that would prove his claim.

49. The Court accepts that the imposition on the applicant to pay the fees of the expert witness may be viewed as a restriction hindering his right of access to a court (see, mutatis mutandis, Kreuz v. Poland, cited above, § 67).

50. As the Court has underlined on a number of occasions, a restriction affecting the right to a court will not be compatible with Article 6 § 1 unless it pursues a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the legitimate aim sought to be achieved (see, for example, Klauz v. Croatia, no. 28963/10, § 83, 18 July 2013). The Court must therefore examine whether this was achieved in the present case.

51. As regards the legitimate aim of the restriction, the Court first emphasises that the applicant did not challenge as such the rule contained in section 153 of the Civil Procedure Act. Instead, he claimed that the manner in which the rule had been applied in the particular circumstances of his case had deprived him of his right to a fair hearing. In this connection, the Court considers that setting out a general rule that places a duty upon a party to initially pay for the fees of an expert witness whose evidence shall be used to prove or disprove a disputed fact can be accepted as compatible with the general administration of justice. This requirement is likewise compatible with the characteristics of the civil proceedings, and cannot in itself be seen as contrary to Article 6.

(ii) Whether the restriction was proportionate to the legitimate aim pursued

52. The Court considers that its task is not to rule on who has to pay the fees of an expert witness initially, but to determine whether, in the circumstances of this case, the applicant's right of access to a court within the meaning of Article 6 § 1 of the Convention was respected (see, mutatis mutandis, Malige v. France, 23 September 1998, § 30, Reports of Judgments and Decisions 1998-�VII, and Cindrić and Bešlić v. Croatia, no. 72152/13, § 119, 6 September 2016).

53. As mentioned before, the present case concerns the applicant's claim for an increase in the monthly payments awarded to him on the account of his inability to work, a highly important issue in relation to the applicant's personal situation, since that was one of his main sources of income.

54. In that connection, the Court notes firstly that the sum required from the applicant was undoubtedly substantial for him, because it surpassed the amount of his monthly pension (see paragraphs 25, 26 and 41 above).

55. Further to this, the Court observes that section 154 of the Civil Procedure Act allowed for flexibility as regards the payment in advance of the fees of an expert witness, since it provided that the court could hear evidence even though a deposit for obtaining such evidence had not been paid, in which case it should order the party concerned to pay a certain sum to the witness or the expert witness concerned within eight days (see paragraph 36 above). Further to this, section 172 of the same Act made provision for a party who was unable to pay, inter alia, the fees of an expert witness without harming his or her own subsistence or that of his or her family to be exempted from paying such fees (see paragraph 35 above). Subsection 4 of that section provided for the conditions and circumstances the courts needed to take into account when deciding on exemption applications (see paragraph 35 above).

56. As to the Government's argument that the domestic courts had dismissed the applicant's exemption application owing to his alleged failure to provide a certificate from the competent tax authority confirming his and his wife's financial status, the Court notes that this is not accurate, since the national courts relied on the assumption that the applicant had had sufficient funds to pay the expert's fees because he had previously been awarded HRK 20,000 in respect of the violation of his right to a fair hearing within a reasonable time. In concluding this, they did not take into consideration either the documents he had submitted with his application (the Croatian Pension Fund's certificate confirming that the amount of his monthly pension was less than the expert's fees, and the certificate confirming that his wife had no income), or the fact that the proceedings in the instant case concerned one of his main sources of income in relation to his work-related injury and incapacity of working (see paragraphs 7, 28 and 29 above).

57. The findings which the relevant courts made in respect of the applicant's financial situation did not rely on the facts and documents the applicant supplied, but on their hypothetical conclusion that he had had sufficient financial means to cover the fees of the expert witness (see paragraph 28 above). Thus, the domestic courts made certain assumptions as to the applicant's financial standing that were not supported by the material before them (compare with Kreuz v. Poland, cited above, § 64). Those assumptions led to the dismissal of the applicant's application and consequently to the dismissal of his claim, the substance of which was not fully examined on the merits even after a long trial of more than eighteen years.

58. The Vukovar County Court quashed the first-instance judgment twice owing to substantive flaws made by the first-instance court (see paragraphs 12-13 and 20 above). Moreover, in its judgment of 3 May 2005 the Vukovar County Court ordered a fresh consideration of the case because the first-instance court had failed to adequately and precisely give instructions to the expert witness concerning facts and parameters in relation to the preparation of his report (see paragraphs 20-25 above). Therefore, the impugned expert-witness report had to be commissioned because of the first-instance court's error.

59. The Court also notes the Government's argument that the applicant was able to ask for legal aid, the granting of which could have entailed an exemption from paying the costs of experts. However, the relevant provisions of the Legal Aid Act came into force only two days before the proceedings were concluded, and after the applicant had already lodged an application to be exempted from paying the expert-witness fees (see paragraphs 26, 27 and 35 above). Further to this, before the provisions of the Legal Aid Act came into force, the applicant had already obtained a legal aid lawyer to represent him in the proceedings at issue. Under the provisions of the Legal Aid Act, relied on by the Government, every party to civil proceedings who obtained the services of a legal aid lawyer was automatically exempted from paying the costs of experts in such proceedings (see paragraph 36). The Court therefore sees no reason why such a rule was not applied in respect of the applicant, who had already obtained a legal aid lawyer to represent him in the proceedings at issue, especially as, according to the Government, the applicant had also been exempted from paying the court fees in those proceedings (see paragraph 44). In addition to this, even assuming that lodging an application for legal aid as provided for in the Legal Aid Act was the proper avenue for the applicant in the instant case, the Court notes that section 18 of the Legal Aid Act obliged the first-instance court to provide the applicant with all the necessary information concerning legal aid (see paragraph 36), which the first-instance court failed to do.

60. Whereas it is not for the Court to assess the merits of the applicant's claim, it cannot but note that his action was based on harmful events for which a State-owned company had been found liable, and concerned damages arising from those events (see paragraph 6 above).

61. Assessing the facts of the case as a whole, and having regard to the prominent place in a democratic society held by the right to a court, it cannot be said that the domestic courts' decisions in the present case were proportionate to the legitimate aim pursued by the rule enunciated in section 173 of the Civil Procedure Act. Its arbitrary application in the present case, in the absence of sufficient regard for the specific financial circumstances of the applicant, resulted in a restriction which impaired the very essence of his right of access to a court.

62. Consequently, there has been a violation of Article 6 § 1 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

63. Article 41 of the Convention provides:

"If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."

64. The applicant did not submit any claim for just satisfaction in his observations dated 2 September 2015 in reply to the Government's observations. He claimed HRK 10,000 (about EUR 1,300) in compensation and HRK 35,000 (about EUR 4,700) in costs and expenses on the application form.

65. Under Rule 60 § 2 of the Rules of Court, an applicant must submit itemised particulars of all claims, together with any relevant supporting documents, within the time-limit fixed for the submission of the applicant's observations on the merits. If the applicant fails to comply with these requirements, the Court may reject the claim in whole or in part (Rule 60 § 3 and Rule 71). In its letter dated 27 July 2015 the Court drew the applicant's attention to the fact that these requirements applied even if he had indicated his wishes concerning just satisfaction at an earlier stage of the proceedings.

66. The Court observes that the applicant's representative failed to submit any just satisfaction claims, together with any relevant supporting documents, within the fixed time-limit.

Having regard to Rule 60, the Court therefore makes no award under Article 41 of the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint concerning the right of access to court admissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Decides to make no award under Article 41 of the Convention.

Done in English, and notified in writing on 15 March 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Renata DegenerAleš Pejchal
Deputy RegistrarPresident

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> SMOLIC v. CROATIA - 51472/12 (Judgment : Article 6 - Right to a fair trial : First Section Committee) [2018] ECHR 241 (15 March 2018) URL: http://www.bailii.org/eu/cases/ECHR/2018/241.html Cite as: ECLI:CE:ECHR:2018:0315JUD005147212, [2018] ECHR 241, CE:ECHR:2018:0315JUD005147212