CASE OF VUGDELIJA v. CROATIA

SECOND SECTION

CASE OF VUGDELIJA v. CROATIA

(Application no. 14692/18)

JUDGMENT
 

STRASBOURG

20 February 2024

This judgment is final but it may be subject to editorial revision.

In the case of Vugdelija v. Croatia,

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

 Pauliine Koskelo, President,
 Lorraine Schembri Orland,
 Davor Derenčinović, judges,
and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 14692/18) 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”) on 22 March 2018 by a Croatian national, Mr Ivan Vugdelija (“the applicant”), who was born in 1984, lives in Split and was represented by Ms I. Ilić Radnić, a lawyer practising in Split;

the decision to give notice of the complaints concerning access to court and the right to protection of property to the Croatian Government (“the Government”), represented by their Agent, Ms Š. Stažnik, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 30 January 2024,

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

SUBJECT MATTER OF THE CASE

1.  The application concerns civil proceedings the applicant instituted with a view to obtaining damages for injuries sustained in a road traffic accident.

2.  In particular, in 2005 the applicant brought a civil action in the Split Municipal Court against an insurance company seeking 40,000 Croatian kunas (HRK) on account of non-pecuniary damage, that is, some 5,309 euros (EUR), together with the accrued statutory default interest. He also sought HRK 3,000, that is, some EUR 398 on account of pecuniary damage, together with the accrued statutory default interest.

3.  Following the defendant’s response in which it, inter alia, contested the level of compensation sought, in his submissions of 19 December 2005 the applicant indicated that he would adjust the amount claimed after the court obtained an opinion from medical experts.

4.  On 28 March 2008, that is, three days before the hearing of 1 April 2008, the defendant acknowledged the applicant’s claims in the amounts sought by his civil action (see paragraph 2 above), save for a part of the claim for the statutory default interest accrued on the amount of pecuniary damages, and invited the court to adopt a partial judgment.

5.  The applicant was served with the defendant’s submissions containing the acknowledgment only at the hearing of 1 April 2008.

6.  At that hearing the Municipal Court, without first giving the floor to the parties, adopted a partial judgment whereby it awarded the applicant HRK 40,000 on account of non-pecuniary damage together with the accrued statutory default interest, and HRK 3,000 on account of pecuniary damage together with the undisputed part of the statutory default interest (see paragraph 4 above). After the judgment was adopted, still at the same hearing, the applicant increased his claim for non-pecuniary damages to HRK 400,000, that is, EUR 53,089. He argued that the circumstances had changed since the bringing of his civil action and stated that he had retained the right to further adjust that claim after the court obtained the opinion from medical experts. The defendant objected arguing that the applicant’s claim for non-pecuniary damages had been decided in full.

7.  At the hearing of 11 November 2008, the court formally allowed the applicant’s increase of that claim and heard the medical experts.

8.  At the hearing of 22 April 2009, the applicant reduced his claim for non-pecuniary damages in line with the expert opinion and deducted the amount already awarded to him on that account by the partial judgment: he sought HRK 143,500 that is, EUR 19,046.

9.  In a judgment of 29 April 2009, the Municipal Court, taking into account the amount of non-pecuniary damages already awarded to the applicant by the partial judgment, awarded him HRK 113,500, that is, EUR 15,064, for that type of damage and dismissed the remainder of that claim as specified on 22 April 2009. The court also dismissed his claim for the disputed part of the statutory default interest accrued on the amount of pecuniary damage (see paragraph 4 above).

10.  Following an appeal by the defendant, on 24 March 2011 the Split County Court quashed the first-instance judgment and declared inadmissible the applicant’s claim for non-pecuniary damages in excess of HRK 40,000. It held that the partial judgment (see paragraph 6 above) was actually a complete judgment whereby that claim, as it stood at the time, had been decided in full. After the adoption of that judgment, he could no longer increase that claim. It also noted that when bringing his civil action, the applicant had not indicated that he would specify that claim in line with the expert opinion.

11.  On 26 January 2016 the Supreme Court dismissed the applicant’s appeal on points of law. On 27 September 2017 the Constitutional Court declared inadmissible his subsequent constitutional complaint and on 2 November 2017 notified him of its decision.

12.  Before the Court the applicant raised complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 thereto. In particular, he complained that the domestic courts’ finding that they had been precluded from examining his claim for non-pecuniary damages in excess of HRK 40,000 had constituted an unjustifiable restriction of his right of access to a court.

THE COURT’S ASSESSMENT

13.  The Government submitted that the applicant had not exhausted domestic remedies because he had not appealed against the partial judgment of 1 April 2008 (see paragraph 6 above).

14.  The applicant replied that under domestic case-law in situations where the plaintiffs had set their claims for non-pecuniary damages too low, but it was evident that they were entitled to a higher amount, it was considered against public morals and therefore unlawful for the defendants to acknowledge such claims (he cited the Supreme Court decision no. Rev‑2909/1998-2 and the Constitutional Court decision no. U‑III‑374/2008). In the present case the Municipal Court, wishing both to prevent the defendant’s potentially unlawful acknowledgment of the claim and to conduct the proceedings efficiently, had adopted the partial judgment based on that acknowledgement but had also allowed the applicant to increase his claim. In those circumstances, the partial judgment had been in his favour, and he had no (legal) interest to appeal against it.

15.  The Court cannot but note that in the given circumstances the judgment in question was in the applicant’s favour and appealing against it would not have been in his interest. Compelling applicants to appeal against judgments in their favour would go beyond the duties incumbent on them pursuant to Article 35 § 1 of the Convention as that would be contrary to the principle that the exhaustion rule must be applied with some degree of flexibility and without excessive formalism because it is being applied in the context of the machinery for the protection of human rights (see, among many other authorities, D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 116, ECHR 2007‑IV).

16.  The Government’s objection regarding the exhaustion of domestic remedies must therefore be rejected.

17.  The Court further notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

18.  The relevant principles emerging from the Court’s case-law concerning the right of access to a court and, in particular, the situations in which a restriction of that right amounts to “excessive formalism” are summarised in Zubac v. Croatia ([GC], no. 40160/12, §§ 76-79 and 90-99, 5 April 2018). Excessive formalism usually occurs in cases of a particularly strict construction of a procedural rule, preventing an action from being examined on the merits (ibid., §§ 78 and 97).

19.  Under the Croatian Civil Procedure Act in force at the material time, plaintiffs had to specify their claim already when bringing their civil action (in their statement of claim) but could increase it until the conclusion of the last hearing before the first-instance court. However, after the statement of claim had been served on the defendant, increasing the claim required the defendant’s consent. Nonetheless, even if the defendant opposed the increase, the court could allow it if that facilitated the final resolution of the issues between the parties.

20.  Those rules – which are not incompatible per se with Article 6 § 1 of the Convention – constituted a restriction of the right of access to a court which pursued the legitimate aim of ensuring legal certainty and the proper administration of justice. The only issue in the present case is whether the way the domestic courts applied those rules was proportionate to that aim.

21.  In that regard the Court first notes that the proceedings complained of primarily concerned compensation for non-pecuniary damage, that is, a type of damage which is inherently difficult to assess (see, for example, Klauz v. Croatia, no. 28963/10, § 88, 18 July 2013). In particular, in cases concerning injuries sustained in road traffic accidents the exact amount of compensation for such damage is often very difficult to specify before obtaining expert opinions.

22.  The reasoning of the Split County Court implying that its decision might have been different had the applicant in his statement of claim indicated that he would later adjust his initial claim (see paragraph 10 above), as well as the Government’s arguments to the same effect in their observations, suggest that domestic courts have recognised that difficulty and are therefore in practice generally flexible in allowing the plaintiffs to adjust (increase) their initial claims for non-pecuniary damages.

23.  Furthermore, under Croatian law in civil cases advocate’s fees are, as a matter of principle, calculated in proportion to the value of the claim. Thus, the higher the amount the plaintiff seeks is, the higher will be his own and the defendant’s advocate’s fees (see Klauz, cited above, § 79). As the Court’s case-law shows (see Čolić v. Croatia, no. 49083/18, §§ 49-60, 18 November 2021, and Klauz, cited above, §§ 87-97), when the plaintiff seeks a too high amount of damages, the very high costs of the proceedings may “consume” a large portion or even the entirety of the plaintiff’s financial award in the case.

24.  Against this background, the applicant cannot be blamed for having been cautious by initially setting his claim for non-pecuniary damages lower and increasing it later.

25.  In the present case the Municipal Court at the hearing of 1 April 2008 first adopted a partial judgment based on the defendant’s acknowledgment of the applicant’s claims and only then gave the applicant an opportunity to increase his claim for non-pecuniary damages (see paragraph 6 above). The Municipal Court subsequently allowed that increase (see paragraph 7 above) and in its judgment of 29 April 2009 eventually ruled on the merits of the applicant’s increased claim by allowing it in part (see paragraph 9 above).

26.  The reasoning of the County Court and the Supreme Court (see paragraphs 10-11 above), which overturned the latter judgment, implies that the Municipal Court’s only error was that it had first adopted the partial judgment and then allowed the applicant to increase his claim for non‑pecuniary damages. Had it done the opposite, it would not have been precluded from ruling on the merits of the applicant’s increased claim.

27.  For the Court, the County Court and the Supreme Court have in so holding not (sufficiently) taken into account the fact that the applicant had not been given an opportunity to comment on the defendant’s acknowledgment of his claim before the partial judgment based on that acknowledgment was adopted (see paragraphs 5-6 above), and that subsequent procedural steps undertaken by the Municipal Court did not give him any reason to challenge that acknowledgment or the partial judgment (see paragraphs 7, 9 and 14-15 above). As a result, the applicant found himself in a situation where, through no fault of his own, he was prevented from obtaining full compensation for his injuries, that is, in a situation which impaired his right of access to a court.

28.  Similarly, the County Court and the Government in their observations have taken it against the applicant that when bringing his civil action he had not indicated that he would later adjust his claim for non-pecuniary damages (see paragraphs 10 and 22 above). However, he did so in his next submissions (see paragraph 3 above). It is not clear whether the County Court did not take these submissions into account due to an oversight or because it considered that the applicant’s indication had come too late. If the latter is the case, that would have been, given the domestic practice (see paragraph 22 above), either arbitrary or excessively formalistic.

29.  In the light of the foregoing, the Court finds that the way the domestic courts applied the relevant procedural rules in the present case could not be considered proportionate to the aim those rules sought to achieve (see paragraphs 19-20 above).

30.  There has accordingly been a violation of Article 6 § 1 of the Convention.

31.  The applicant raised the same complaint as the one examined above under Article 1 of Protocol No. 1 to the Convention (see paragraph 12 above). Having regard to its findings concerning the complaint under Article 6 § 1 of the Convention, the Court considers that it cannot speculate as to whether the applicant’s claim for non-pecuniary damages in excess of HRK 40,000 was well-founded. Under domestic law the applicant now has an opportunity to request the reopening of the proceedings complained of, which would allow for a fresh examination of that claim. In those circumstances, the Court considers that it has dealt with the main legal question raised by the case and that there is no need to examine this remaining complaint (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

32.  The applicant claimed 55,000 euros (EUR), in respect of pecuniary damage and the same amount in respect of non-pecuniary damage. He also claimed EUR 18,000 in respect of costs and expenses incurred before the domestic courts and those incurred before the Court.

33.  The Government contested these claims.

34.  The Court reiterates that under domestic law the applicant may request reopening of the civil proceedings in respect of which the Court has found a violation of the Convention and considers that in the given circumstances this is the most appropriate way for him to obtain compensation for any pecuniary damage he might have sustained. Therefore, there is no call to award the applicant any sum on that account.

35.  On the other hand, the Court awards the applicant EUR 6,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

36.  As regards the costs and expenses, the Court considers it reasonable to award EUR 830 for the costs of the constitutional complaint, plus any tax that may be chargeable to the applicant. The remainder of the applicant’s claim for costs and expenses incurred before the domestic courts must be rejected, given that he will be able to have them reimbursed should the proceedings complained of be reopened (see, for example, Stojanović v. Croatia, no. 23160/09, § 84, 19 September 2013).

37.  As regards the costs and expenses incurred before it, the Court considers it reasonable to award EUR 1,660, plus any tax that may be chargeable to the applicant.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the applicant, within three months, the following amounts:

(i)  EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 2,490 (two thousand four hundred and ninety euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 20 February 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Dorothee von Arnim Pauliine Koskelo
 Deputy Registrar President