FIRST SECTION
Application no. 67390/10
Goran MARČAN against Croatia
lodged on 6 September 2010
STATEMENT OF FACTS
The applicant, Mr Goran Marčan, is a Croatian national who was born in 1967 and lives in Rijeka.
The application was lodged with the Court on 6 September 2010.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is a lawyer practicing in Rijeka.
In the period between 2002 and the beginning of 2004 the applicant was a defence lawyer for B.P. who was indicted in the Rijeka County Court (Županijski sud u Rijeci) on charges of the abuse of power and authority (zlouporaba položaja i ovlasti).
On 18 April 2008 the Rijeka County Court acquitted B.P. and on 16 October 2008 this was upheld by the Supreme Court (Vrhovni sud Republike Hrvatske).
On 26 February 2009 the applicant lodged a request with the Rijeka County Court seeking payment for the legal representation of B.P. The applicant claimed reimbursement of costs and expenses incurred during the proceedings as follows:
- for attending nineteen hearings before the investigating judge, the amount of 7,600 Croatian kunas;
- for drafting seven appeals lodged during the proceedings, the amount of HRK 2,800;
- for drafting an objection against the indictment, the amount of HRK 300;
- for 120 hours of meetings with his client in detention, the amount of HRK 12,000; and
- a special increase of 100% on the gournd of the complexity of the case, which in total amounted to HRK 40,748.
On 4 March 2009 the Rijeka County Court granted the applicant’s claim in part and awarded him HRK 5,100. It held that for the nineteen hearings before the investigating judge the applicant was entitled only to compensation for one hearing with an increase in respect of every further full hour and awarded him HRK 2,560. It relied on Scale no. 3 of the Scale of Lawyers’ Fees which provided that for participation in the pre-trial proceedings, the lawyer was entitled to a single fee equal to the remuneration under Scale no. 4 of the Scale of Lawyer’s Fees. Scale no. 4 provided that the lawyer was entitled to a fee in certain amount for every day of a hearing before a court.
The Rijeka County Court also held that the applicant’s visits to his client in detention were not meetings where they had discussed legal and factual issues. Finally, that court held that the case had not been particularly complex and that there was no ground for the special increase.
On 16 March 2009 the applicant lodged an appeal with the Rijeka County Court.
On 27 January 2010 a three-judge panel of the Rijeka County Court upheld the first-instance decision and awarded the applicant additional taxes in the amount of HRK 1,122.
On 5 March 2010 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske).
On 27 May 2010 the Constitutional Court declared the constitutional complaint inadmissible as ill-founded.
B. Relevant domestic law
The relevant part of the Scale of Lawyer’s Fees, Official Gazette, nos. 69/1993, 87/1993, 16/1994, 11/1996 (Tarifa o nagradama i naknadi troškova za rad odvjetnika, Narodne novine, broj 69/1993, 87/1993, 16/1994, 11/1996), in force at the relevant time, provided as follows:
Scale no. 3
“For participating in the pre-trial proceedings, a defence attorney or a lawyer representing the injured party is entitled to a single fee equal to the remuneration for defence under Scale no. 4, item 1, depending on the offence which is the subject of the proceedings, and for the second and each subsequent hour of attendance in the proceedings, a remuneration of ten points.”
Scale no. 4
“Defence of the accused, representation of a private prosecutor and representation of the injured party before a court or a minor-offences judge, for each day of the hearing:
...
in respect of criminal offences liable to a prison sentence up to ten years, a remuneration of forty points,
...“
Scale no. 31
“For attending conferences and meetings where factual and legal matters are discussed with the client, the counter party and other participants in the client’s case, the lawyer is entitled to the remuneration of ten points for every hour.”
Scale no. 37
“For special professional and expert knowledge required for the elaboration of a case, for a particularly difficult case or special responsibility for performed work, Scale items may be increased by 100%.
... “
Scale no. 50
“The value of one point is 8,00 Croatian kuna.”
COMPLAINTS
The applicant complains that he was deprived of the compensation for the legal work he had performed.
The applicant also complains that he was discriminated against because his client had been acquitted in the criminal proceedings.
QUESTIONS TO THE PARTIES
1. Has there been a violation of the applicant’s right to a fair hearing guaranteed by Article 6 § 1 of the Convention as regards the national courts’ decision concerning the costs of the proceedings at issue?
2. Was the interference with the applicant’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1, based in law, did it pursue a legitimate aim and, if so, was it proportionate to the aim pursued? In particular, did that interference impose an excessive individual burden on the applicant?
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