ANALYSIS OF THE CASE OF MUCKO V. CROATIA

ANALYSIS OF THE CASE OF MUCKO V. CROATIA

In this highly significant case, Mucko v. Croatia, no. 55588/18, which unfortunately has not been published in the case law of the European Court of Human Rights because it was concluded by the Republic of Croatia acknowledging the violation and paying compensation to the applicant, positions were taken that are diametrically opposed to the previous practice of the courts in the Republic of Croatia and of the Constitutional Court of the Republic of Croatia, concerning:

A party's right to reimbursement of the costs of representation by a lawyer in administrative proceedings

A possible change in the position of the Constitutional Court of the Republic of Croatia according to which a decision on the costs of proceedings is not an individual act in respect of which the Constitutional Court would have jurisdiction to afford constitutional protection.

In brief, in administrative proceedings which the Republic of Croatia, through its authorities, namely the City Office for Physical Planning, City Development, Construction, Utility Services and Transport, instituted against Mr Mucko, he engaged a lawyer to protect his rights; the lawyer lodged an appeal and requested reimbursement of the costs of the proceedings on the basis of representation by a lawyer, all in accordance with the Lawyers' Tariff.

In line with long-standing practice, the administrative authorities rejected that request, taking the view that under the General Administrative Procedure Act a party in administrative proceedings is not entitled to reimbursement of the costs of representation by a lawyer, on the grounds that, pursuant to Article 161(5) of the General Administrative Procedure Act, the appellant bears the cost of drafting the appeal because the proceedings in question were conducted on the basis of the appeal. It was further stated that "the present case does not involve issues of such complexity as to require the special legal assistance of a lawyer, and therefore having the appeal drafted by a lawyer was neither necessary nor justified."

Subsequently, the administrative courts upheld the decisions of the administrative authorities and dismissed the claim, reasoning that in administrative proceedings there is no possibility of reimbursement of the costs of representation by an authorised representative; rather, engaging a lawyer in administrative proceedings is left to the free will of the party, who is then obliged to pay the costs of legal representation.

Finally, the Constitutional Court declared the constitutional complaint inadmissible, stating that it lacked jurisdiction to decide, since in its view decisions on costs do not constitute individual acts against which the Constitutional Court would have jurisdiction to afford constitutional protection.

Accordingly, in his application to the ECtHR the applicant argued that, if the position were accepted that in administrative proceedings there is no possibility whatsoever of reimbursement of the costs of legal representation and fees, this would mean that in all proceedings, including far more demanding and lengthy ones, parties would in practice be prevented from engaging professional assistance to protect their fundamental rights.

Therefore, the interpretation that in administrative proceedings parties are not entitled to reimbursement of costs even though they are "in the right" and did not institute the proceedings of their own volition may, in many cases, deter parties who are victims of unlawful conduct from lodging legal remedies and applying to the courts, and thereby have a restrictive effect on the right of access to a court.

In addition, by accepting the contested position of the national courts, the principle would be proclaimed that only persons who can afford one have an authorised representative in administrative proceedings, while all others would be deprived of that right, as is also pointed out in the already well-established case law of the European Court of Human Rights (YOUNG, JAMES AND WEBSTER v. UNITED KINGDOM, application nos. 7601/76; 7806/77).

On a reasonable interpretation of Article 161(5) of the General Administrative Procedure Act (ZUP), it may be concluded that the ratio of that provision is most certainly not to discourage parties from using legal assistance by exhausting them financially, but rather to prevent the arbitrariness of administrative authorities in instituting unlawful proceedings against parties without any consequences, and, where they do institute them, to ensure that they bear the costs.

The ECtHR proposed to the parties that a friendly settlement be reached, to which the Office of the Representative of the Republic of Croatia before the European Court of Human Rights agreed, and on 11 March 2022 it submitted to the Court a unilateral declaration acknowledging that there had been a violation of the right of access to a court in the applicant's case and undertaking to pay a lump sum.

Therefore, dear colleagues, we are pleased to draw your attention to the case law of the European Court of Human Rights on which you may rely in similar cases in which administrative authorities institute unlawful proceedings against your clients and for which they are likely to have to bear the costs.

OWENS, HOUŠKA I PARTNERI, odvjetničko društvo d.o.o.