TOPOLOVČAN v. CROATIA
Inadmissible
Anatoly Kovler;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
1. The applicant, Ms Branka Topolovčan, is a Croatian national, who was born in 1962 and lives in Koprivnica. She was represented before the Court by Mr D. Ostović, a lawyer practising in Vinkovci. 2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 1 October 2008 the Koprivnica Municipal Court (Općinski sud u Koprivnici) found the applicant guilty of causing the death of her son through negligence, but it did not impose a sentence on the grounds that the applicant had suffered enough as a result of the events in question. 5. In the same decision it was ordered that the costs of the proceedings were to be borne by the Koprivnica Municipal Court under Article 123 § 1 of the Code of Criminal Procedure. 6. The applicant lodged an appeal against the judgment before the Koprivnica County Court (Županijski sud u Koprivnici) on 12 November 2008. 7. However, on 24 December 2008 the Koprivnica County Court dismissed the applicant’s appeal and upheld the judgment of the Koprivnica Municipal Court. 8. On 27 February 2009 the applicant submitted a claim for costs and expenses incurred in the criminal proceedings against her to the Koprivnica Municipal Court. These costs and expenses concerned the costs of her legal representation by a privately hired lawyer. 9. On 20 March 2009 the Koprivnica Municipal Court declared the applicant’s claim for costs and expenses inadmissible as being lodged out of time. The relevant part of the decision reads: “This court holds that the defence lawyer was not entitled to submit his claim for costs and expenses after he had received the appellate judgment, but rather had to do so before the adoption of the first-instance judgment because Article 120 § 2 of the Code of Criminal Procedure only allows the authorised person to submit an itemised list of costs up to three months after the final judgment has been served on him or her, but not a claim for costs and expenses.” 10. In her appeal of 27 March 2009 the applicant argued that the decision of the Koprivnica Municipal Court was contrary to the relevant provisions of the Code of Criminal Procedure and the wellestablished practice of the domestic courts by which a claim for costs and expenses could be lodged within three months after the final judgment. 11. On 11 May 2010 a three-judge panel of the Koprivnica Municipal Court dismissed the applicant’s appeal, holding that the costs and expenses arising from the applicant’s representation by a privately hired lawyer had to be borne by the applicant herself as she had been found guilty on the charges against her. The relevant part of the decision reads: “... it is to be noted that by the [first-instance] judgment ... Article 123 § 1 of the Code of Criminal Procedure was wrongly applied when it was decided that the costs of the proceedings were to be borne by the court. This is because the accused was found guilty, so the costs [of the proceedings] are to be considered under Article 122 of the Code of Criminal Procedure and not Article 123 of [that Code]. In case of the application of Article 122 § 4 of the Code of Criminal Procedure, the accused can be excused from the obligation to pay, in total or partially, the costs and expenses of the criminal proceedings ... as well as costs of the officially assigned lawyer. [The applicant’s lawyer] D.O. was not her officially assigned lawyer but a lawyer of her own choosing. Therefore his costs and expenses, as the accused was found guilty, cannot be borne by the court.” 12. The relevant part of the Code of Criminal Procedure (Zakon o kaznenom postupku – Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002 and 62/2003, 178/2004 and 115/2006) reads: “(1) The costs of criminal proceedings are expenses incurred by reason of criminal proceedings from their institution to their termination, including the costs of undertaking investigatory actions before an investigation. (2) The costs of criminal proceedings shall consist of: (1) expenses of witnesses, expert witnesses, interpreters and experts, the expense [of obtaining] stenographic notes or a technical recording, and expenses of judicial review; (2) expenses of transportation of the defendant; (3) expenses of bringing the defendant or arrested person before the court; (4) expenses of the transportation of officials and their travelling expenses; (5) expenses of medical treatment of a defendant who is not entitled to health insurance while he is in detention or in a medical institution by virtue of a judicial decision, and expenses of child delivery; (6) a lump sum; (7) fees and necessary expenses of the defence counsel, necessary expenses of a private prosecutor or subsidiary prosecutor and their legal guardians, and fees and necessary expenses of their legal representatives; and (8) necessary expenses of the injured party and his legal guardian and fees and necessary expenses of his legal representative.” “(1) Each judgment shall contain, in addition to a decision terminating the criminal proceedings, a decision on the costs and expenses of the proceedings and their amount. (2) Where the information concerning the amount of expenses is missing, a separate decision concerning costs and expenses shall be adopted by an investigating judge, a single judge or the president of a panel when such information has been submitted. A claim containing information on the amount of costs and expenses may be lodged up to three months after a final judgment or decision has been served on a person who has the right to lodge such a claim.” “(1) When the court finds the defendant guilty, it shall state in the judgment that he must pay the costs of the criminal proceedings. ... (4) The court may, in a decision on costs, decide that the defendant shall not pay the entire or partial sum of the costs of the criminal proceedings referred to in Article 119 paragraph 2 subparagraphs 1 to 6 of this Code and the fee and necessary expenses of any officially appointed defence counsel if payment of these costs could imperil the maintenance of the defendant or persons he is bound to maintain. If these circumstances are determined after the decision on costs was adopted, the president of the panel may, by a separate decision, dispense the defendant from the duty to bear the costs of the criminal proceedings.” “(1) When criminal proceedings are discontinued or when a judgment of acquittal or a judgment dismissing the charge(s) is adopted, the court shall order that the costs of the criminal proceedings referred to in Article 119 paragraph 2 subparagraphs 1 to 5 of this Code, as well as the necessary expenses of the defendant and the necessary expenses and fees of the defence counsel, shall be paid from budget funds ...” 13. In decisions nos. Kzz-14/1998-2 of 16 September 1999, concerning costs and expenses of representation by a legal aid lawyer, and I Kž 982/05−6 of 6 June 2007, concerning costs and expenses of representation by a privately hired lawyer, where the criminal proceedings had been discontinued because of the death of the accused, the Supreme Court held that a defence lawyer was not required to submit a claim for costs and expenses before the first-instance judgment was adopted, but was required to do so within three months of a final judgment being served on him or her.