CASE OF PAVLOVIĆ AND OTHERS v. CROATIA
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)
Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković
5. The applicants were born in 1959, 1950 and 1952 respectively, and live in Brestovec Orehovički and Krapina respectively. 6. In 1990 I. Ku., the applicants’ predecessor, brought a civil action in the Zagreb Municipal Court (Općinski sud u Zagrebu) against M.K., seeking his eviction from a flat and reimbursement of the costs of the proceedings. 7. In 2001, following the death of I. Ku, the applicants, as his heirs, took over the proceedings as plaintiffs, while M. K. also died in the course of proceedings and I. Kr. replaced him as defendant. 8. During the proceedings, I. Kr. brought a counterclaim against the applicants, seeking either a specially protected tenancy of the flat at issue or compensation for investments in the flat he had made in the amount of 95,000 Croatian kunas (HRK). The applicants also, in addition to I. Ku.’s civil action, requested the Zagreb Municipal Court to order I. Kr. to remove everything he had installed in the flat. 9. At the closing hearing before the Zagreb Municipal Court on 12 June 2007 the applicants reiterated all their arguments and requested reimbursement of the costs of proceedings. At the same hearing, the applicants submitted a written itemised claim for costs in the amount of HRK 14,786.40. At the same time, the defendant’s representative reiterated his arguments and requested reimbursement of the costs in the amount which he promised to specify later. 10. On the same day the Zagreb Municipal Court allowed the applicants’ action in part, ordering the eviction of I. Kr. from the flat, whereas it dismissed the remainder of their civil action, as well as I. Kr.’s counterclaim for compensation of the investments in the flat. As regards the costs of the proceedings, the Zagreb Municipal Court noted: “With regard to the costs of the proceedings, each party shall bear their own costs, as provided under section 154 § 2 of the Civil Procedure Act, since the plaintiff succeeded with part of [their] action while [they] were dismissed as regards the remainder, and the counterclaim was fully dismissed.” 11. On 10 October 2008, in a supplementary judgment, the Zagreb Municipal Court dismissed I. Kr.’s civil action for a specially protected tenancy. 12. Meanwhile, the parties challenged the first-instance judgment of the Zagreb Municipal Court of 12 June 2007 before the Zagreb County Court (Županijski sud u Zagrebu). The applicants argued that the first-instance court had incorrectly assessed the situation concerning their right to reimbursement of the costs of proceedings. 13. On 2 February 2010 the Zagreb County Court (Županijski sud u Zagrebu) dismissed the appeals and upheld the first-instance judgment. As regards the applicants’ arguments concerning the costs of proceedings, the Zagreb County Court noted: “... it is to be noted that [the applicants] correctly consider that they should be reimbursed the costs of the proceedings, since the part of their claim by which they sought the eviction [of I. Kr.] from the flat was successful. However, it is to be noted that the case file shows that they failed to comply with the requirement under section 164 § 3 of the Civil Procedure Act, which provides that a party must set out his or her request for reimbursement of costs at the latest at the end of the closing hearing which precedes the decision on costs. At the hearing held on 12 June 2007, by which the proceedings terminated, [the applicants’] representative sought reimbursement of the costs of the proceedings based on an itemised claim which he was supposed to submit. However, there is no such itemised claim in the case file, and the reimbursement of costs was not sought earlier, while certain procedural actions were being taken. This is the reason why the costs of the proceedings could not be reimbursed to [the applicants].” 14. On 14 April 2010 the applicants challenged the judgment of the Zagreb County Court by lodging a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske). They pointed out that the Zagreb County Court had manifestly incorrectly assessed their request for reimbursement of the costs of the proceedings, overlooking the fact that they had indeed submitted in writing an itemised claim for costs, and had therefore arbitrarily dismissed their complaints in that respect. 15. On 23 September 2010 the Constitutional Court declared the applicants’ constitutional complaint inadmissible, on the grounds that the contested judgment had not concerned the merits of their civil rights or obligations, and as such was not susceptible to constitutional review. This decision was served on the applicants on 18 October 2010.