MARČAN v. CROATIA
Inadmissible
Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković
1. The applicant, Mr Goran Marčan, is a Croatian national, who was born in 1967 and lives in Rijeka. 2. The applicant is a lawyer practising in Rijeka. 3. In the period between September 2002 and January 2004 the applicant acted as a privately-appointed defence lawyer for B.P., who was indicted in the Rijeka County Court (Županijski sud u Rijeci) on charges of abuse of power and authority and aiding and abetting the conclusion of onerous contracts. 4. The applicant in particular, together with another lawyer, assumed B.P.’s defence at the hearings before an investigating judge. He also lodged several appeals concerning the decisions on B.P.’s pre-trial detention and he lodged an objection against the indictment. In this period he also had a number of meetings and consultations with his client in detention. 5. During the trial B.P. retained the services of another lawyer, and the applicant was no longer representing him. On 18 April 2008 the Rijeka County Court acquitted B.P., and this was upheld on 16 October 2008 by the Supreme Court (Vrhovni sud Republike Hrvatske). 6. When acquitting B.P. the Rijeka County Court did not rule on the entirety of the costs and expenses of the proceedings, reserving its decision in respect of further possible claims. 7. On 26 February 2009 the applicant lodged a request with the Rijeka County Court seeking remuneration for his legal representation of B.P. during the period between September 2002 and January 2004. He relied on the 2004 Scale of Lawyers’ Fees (see paragraph 20 below) and claimed a total of 40,748 Croatian kunas (HRK; approximately EUR 5,500) as his fees in the proceedings, enumerated as follows: - HRK 7,600 for attending fifteen hearings before the investigating judge and four hearings before the three-judge panel (item 4 of the fee scale) between 9 September 2002 and 29 January 2004; - HRK 2,800 for drafting seven appeals lodged during the proceedings (item 5 of the fee scale); - HRK 300 for drafting an objection against the indictment (item 5 of the fee scale); - HRK 12,000 for 104 visits and consultations with his client in detention, amounting to some 120 hours, in the period between 9 September 2002 and 4 June 2003 (item 31 of the fee scale); - a special increase of 100 percent in respect of the complexity of the case for the first three amounts (item 37 of the fee scale); and - 22 percent VAT. 8. On 4 March 2009 the Rijeka County Court awarded the applicant HRK 5,100 (approximately EUR 700) for attending the fifteen hearings before the investigating judge and drafting the appeals and objection against the indictment, and dismissed the remainder of his claim. The relevant part of the decision reads: “... [item 48 of] the 2004 fee scale ... provides that the 1993 fee scale applies to any work carried out before the former scale entered into force... The fee scale applicable at the investigation stage did not provide that the lawyer was entitled to VAT, this [being] covered for the first time in the 2004 fee scale. Besides, according to the applicable 1993 fee scale ... item 3 provided that for preliminary proceedings lawyers were entitled to a single defence fee for the hearing under item 4.1, plus the hourly rate for every subsequent hour worked in the amount of 10 points, while under item 50 the value of one point was HRK 8 ... ... The hearings lasted a total of 28 hours and 55 minutes, and since the lawyer is entitled to a single defence fee of 40 points and the value of one point is HRK 8, the single defence fee amounts to HRK 320, while the hourly rate amounts to 280 points – 10 points per hour ... meaning that the lawyer is entitled to ... HRK 2,560 in total. As regards the part of the lawyer’s claim [for the four hearings before the three-judge panel] it is to be noted that these were hearings before the ... first-instance court, and for such hearings the lawyer was not entitled to remuneration according to the applicable fee scale. As regards ... the drafting of the seven appeals, the lawyer requests HRK 2,800 which is not entirely reasonable given that the value of one point at the relevant time was HRK 8, which means that the lawyer is entitled to HRK 2,240 and no VAT. The claim of HRK 300 for drafting the objection against the indictment is reasonable, but the claim of HRK 12,000 for the meetings with his client is [not]. The lawyer is relying on item 31 of the fee scale which provides that for conferences and meetings where factual and legal matters were discussed with the client, opposing party and other participants in the client’s case, the lawyer shall be remunerated 50 points for every hour. It is clear that the lawyer did not attend any conferences where factual and legal matters were discussed ‘with the client, opposing party and other participants in the client’s case’ and the requested amount cannot be awarded to [him]. In addition, the applicable fee scale did not anticipate remuneration for every conversation [he had] with the defendant in detention ... as it is provided under the Scale of Lawyers’ Fees (Official Gazette, nos. 91/2004, 37/2005, 59/2007) and therefore he cannot be remunerated on this ground either. As regards the lawyer’s claim under item 37 for a special increase in respect of the ‘complexity of the case’, such a claim is manifestly unreasonable ... as this particular case was not complex ... From all the above-mentioned considerations it is to be concluded that the lawyer is entitled to HRK 5,100 but no VAT, as it was not covered in the applicable fee scale.” 9. On 16 March 2009 the applicant lodged an appeal with a three-judge panel of the Rijeka County Court. He argued that he should have been awarded a single fee for each hearing before the investigating judge and that his claim should have been calculated on the basis of HRK 10 per point. Moreover, under item 42 of the fee scale he had been entitled to a lump sum increase of 25% on his remuneration. The applicant contended that the lengthy preparation of his client’s defence in detention which, in his view, had been crucial for a successful defence, had been unaccounted for. He also pointed out that the case file consisted of more than 10,000 pages, that the proceedings had lasted for more than seven years and that the trial court itself had released a public statement characterising the case as complex. Lastly, the applicant argued that he should be awarded VAT. 10. On 27 January 2010 a three-judge panel of the Rijeka County Court awarded the applicant an additional amount of HRK 1,122 (approximately EUR 150) in respect of VAT, and dismissed the remainder of his complaints. In particular, the three-judge panel explained that the applicant was not entitled to any remuneration for the visits to his client in detention under item 31 of the fee scale as it had not concerned conferences involving other participants in the proceedings. He was also not entitled to a lump sum increase of 25% as it was not clear for what ancillary actions he should be granted such an increase. 11. On 5 March 2010 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske “... when a request for remuneration of costs by a defence lawyer is not recognised, the defence rights are breached. [B.P.’s] lawyer was a lawyer of his own choosing. A person of his confidence. In order for the defence to be on equal footing with the prosecution, the defence lawyer must be remunerated for his work. ... When the accused is acquitted the costs for all actions aimed at the defence of his innocence must be remunerated. Only then are the parties to the proceedings on an equal footing. Only then is there equality before the law. A refusal to remunerate the lawyer for his fees breaches Articles 14 § 2 and 29 §§ 1 and 2 of the Constitution. A trial where the lawyer is brought into a position that the costs of his work are not recognised is not and cannot be a fair trial. Perhaps it would be best if the lawyer would not even be there? By not recognising the lawyer’s costs according to the fee scale, Article 27 of the Constitution is breached. If the lawyer’s right to a fair remuneration is not recognised the autonomy and independence of the legal profession is disturbed. Autonomy and independence presuppose remuneration [of work]. The legal profession cannot be autonomous and independent if the court without any reasons or arguments refuses to recognise the lawyer’s right to remuneration for his work. How can the principle of autonomy and independence [of the legal profession] be secured when the court considers that such autonomy and independence should not be remunerated. And this all [occurs] in a situation where the defendant was acquitted. ...” 12. On 27 May 2010 the Constitutional Court declared the applicant’s constitutional complaint inadmissible on the ground that the contested decisions did not concern any of his civil rights or obligations or any criminal charge against him. The relevant part of the decision reads: “Article 62 of [the Constitutional Court Act] reads: ‘Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the individual act of a state body ... concerning his or her rights and obligations, or a suspicion or an accusation of a criminal offence, has violated his or her human rights or fundamental freedoms ... guaranteed by the Constitution (hereinafter “a constitutional right”).’ It follows that only a decision by which the competent court decided on the merits of a legal matter, that is to say on the rights and obligations, or a suspicion or an accusation of a criminal offence, is an individual act within the meaning of section 62 § 1 of the Constitutional Court Act, in respect of which the Constitutional Court is obliged, upon a constitutional complaint, to protect the human rights or fundamental freedoms of an appellant guaranteed under the Constitution. In the proceedings before the Constitutional Court it was established that the impugned decisions are not individual acts within the meaning of section 62 § 1 of the Constitutional Court Act, in respect of which the Constitutional Court is obliged to provide constitutional protection. It was therefore decided, under section 72 of the Constitutional Court Act, as noted in the operative part of this decision.” 13. This decision was served on the applicant on 23 June 2010.