BRNABIĆ proti Chorvatsku

SECOND SECTION

DECISION

Application no. 4746/16
Nikola BRNABIĆ
against Croatia

The European Court of Human Rights (Second Section), sitting on 28 February 2023 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. 4746/16) 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 14 January 2016 by a Croatian national, Mr Nikola Brnabić, who was born in 1977 and is detained in Lukarišće (“the applicant”) and who was represented by Mr T. Hotko, a lawyer practising in Zagreb;

the decision to give notice of the complaint concerning the applicant’s property rights 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, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns the domestic courts’ refusal to award the applicant’s lawyer costs and expenses he had incurred in respect of his legal representation of the applicant in criminal proceedings in which the charges were ultimately dismissed.

2. The applicant was tried for seven criminal offences.

3. On 27 November 2011 the court convicted the applicant of four criminal offences and sentenced him to seven years’ imprisonment. At the same time, it dismissed the charges for three remaining criminal offences, ruling that the costs of the proceedings in that part, including the costs and expenses of the applicant’s defence lawyer, were to be paid from the State budget in accordance with Article 123(1) of the Code of Criminal Procedure.

4. Subsequently, the applicant’s lawyer T.H. sought compensation of his costs and expenses incurred in respect of his legal representation of the applicant in the proceedings. On 7 January 2013 the Zagreb Criminal Municipal Court dismissed his request on the grounds that the applicant’s defence had been conducted jointly in respect of all criminal charges against him and that it was not possible to calculate the costs and expenses incurred solely in respect of the three criminal offences for which the charges against him had been dismissed. This decision was upheld on appeal. By its decision of 9 June 2015, the Constitutional Court declared the applicant’s subsequent constitutional complaint inadmissible as, pursuant to its case-law, decisions on costs were not open to constitutional review.

5. The applicant complained, relying on Article 1 of Protocol No. 1 to the Convention, about the decision of the domestic courts refusing to reimburse the costs and expenses of his defence lawyer, even though the criminal court had ruled that those costs were to be paid from the State budget.

THE COURT’S ASSESSMENT

6. The Government argued that the applicant had no “possessions” within the meaning of Article 1 of Protocol No. 1 to the Convention because the costs and expenses at issue were not payable to him, but to his defence lawyer. Alternatively, they maintained that the applicant was not a victim of the violation alleged and that it was in fact his lawyer T.H. who could have brought the present complaint before the Court.

7. The Court has already held that the Convention does not grant to a person charged with a criminal offence, but subsequently acquitted, a right to reimbursement of costs incurred in the course of criminal proceedings, and that the question whether such a right can be said in any particular case to exist must be answered solely with reference to domestic law (see Masson and Van Zon v. the Netherlands, 28 September 1995, § 49, Series A no. 327‑A).

8. Moreover, the Court reiterates that an applicant can allege a violation of Article 1 of Protocol No. 1 to the Convention only in so far as the impugned decisions related to his or her “possessions” within the meaning of this provision (see Von Maltzan and Others v. Germany (dec.) [GC], nos. 71916/01 and 2 others, § 74(c), ECHR 2005‑V). In order to be able to lodge an application in accordance with Article 34, an individual must be able to show that he or she was “directly affected” by the measure complained of (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 96, ECHR 2014).

9. Turning to the present case, the Court notes that, in line with the usual practice in cases of this type, it was the defence lawyer T.H. who requested reimbursement of his costs and expenses in relation to the criminal case in which he had represented the applicant. The claimed costs were to be paid directly to T.H.’s bank account and the applicant did not have any legal entitlement to receive any of the amount paid.

10. Furthermore, the Court notes that, according to section 3 of the Rules on reimbursement of costs of criminal proceedings, such costs, including the defence lawyer’s expenses and award, are to be claimed by the person entitled to their reimbursement. Furthermore, according to Article 124(1) of the Code of Criminal Procedure, the accused was under the obligation to pay the costs of his or her defence lawyer, unless the court decided that those costs were to be borne by the State. In other words, in situations such as the one in the present case the person entitled to claim the legal costs in respect of the representation of the accused was the defence lawyer himself, and the accused was not obliged to pay him any costs or expenses in respect of the accusations against him which were dismissed and in respect of which the legal costs were therefore to be paid by the State.

11. The Court further notes that in a previous case against Croatia a similar complaint was lodged by a defence lawyer complaining about the amount of costs of proceedings he had been reimbursed for his legal representation of a person ultimately acquitted in criminal proceedings (see Marčan v. Croatia (dec.), no. 67390/10, §§ 23 et seq., 13 September 2019). In that case neither the Government nor the Court took issue with the victim status of the defence lawyer who was the applicant in that case.

12. In view of the above, the claim for reimbursement of costs in the present case was not held by the applicant himself but by his defence lawyer. The applicant therefore cannot claim that he was a victim of the alleged violation of Article 1 of Protocol No. 1 to the Convention.

13. It follows that the application is inadmissible for lack of victim status and that must be rejected pursuant to Article 34 and Article 35 §§ 3 (a) and 4 thereof.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 23 March 2023.

Dorothee von Arnim Pauliine Koskelo
Deputy Registrar President