CASE OF SMOLIĆ v. CROATIA
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)
Aleš Pejchal;Armen Harutyunyan
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 firstinstance 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 firstinstance 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.