Communicated on 13 October 2016
SECOND SECTION
Application no. 53977/14
Božo DERBUC and Lidija DERBUC
against Croatia
lodged on 23 July 2014
STATEMENT OF FACTS
The applicants, Mr Božo Derbuc and Ms Lidija Derbuc, are Croatian nationals who were born in 1957 and 1960 respectively and live in Zagreb. They are represented before the Court by Mr E. Crnovšanin, a lawyer practising in Zagreb.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
In 2004 the applicants brought a civil action for damages in the Zagreb Municipal Court against the insurance company E., on account of mental anguish as a result of the particularly severe disability of an immediate family member, because their son had sustained exceptionally grave injuries in a road accident. His disability was established at 80% and he needed aid in everyday and personal needs such as dressing and daily personal hygiene. The claim was granted at the first and second levels of jurisdiction, but the Supreme Court reversed the judgments of the lower courts and ruled against the applicants, finding that the applicants’ son’s degree of disability was not particularly severe. The applicants were also ordered to pay the defendant, an insurance company, 72,300 Croatian kuna (HRK, approximately 9,600 euros (EUR)) in costs, which consisted of fees chargeable for the defendant’s representation by advocates and assessed on the basis of the Scales of Advocates’ Fees and Reimbursement of their Costs.
A subsequent constitutional complaint by the applicants was dismissed on 23 January 2014.
B. Relevant domestic law and practice
In its judgment no. Rev-129/09-2 of 23 March 2010 the Supreme Court held that an insurance company, having its own lawyers, was not entitled to the costs of representation by advocates under the Scales of Advocates’ Fees and Reimbursement of their Costs.
COMPLAINTS
The applicants complain under Article 6 § 1 of the Convention that their right to a court was restricted on account of the excessive award of costs and expenses of the proceedings to their opponent, and that that decision violated the principle of legal certainty.
The applicants also complain under Article 1 of Protocol No. 1 to the Convention that their right to peaceful enjoyment of their possessions was violated by ordering them to pay the costs of proceedings on the basis of the Scales of Advocates’ Fees and Reimbursement of their Costs.
QUESTIONS TO THE PARTIES
1. Has there been a violation of Article 6 § 1 of the Convention in the following respects:
(a) Has there been a disproportionate restriction on the applicants’ right of access to a court on account of the allegedly excessive award of costs of the proceedings to their opponent?
(b) Has the principle of legal certainty been respected as regards the decision of the Supreme Court ordering the applicants to bear the costs of the representation of their opponents in the civil proceedings at issue? In particular, are there “profound and long-standing differences” in the case-law of the Supreme Court on that issue (in view of the Supreme Court’s judgment no. Rev-129/09-2 of 23 March 2010)? If so, does the domestic law provide for machinery for overcoming these inconsistencies, and if so has that machinery been applied and to what effect?
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