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FIRST
SECTION
CASE OF PARLOV-TKALČIĆ v. CROATIA
(Application
no. 24810/06)
JUDGMENT
STRASBOURG
22 December 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Parlov-Tkalčić v. Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Anatoly
Kovler,
President,
Nina
Vajić,
Khanlar
Hajiyev,
Dean
Spielmann,
Sverre
Erik Jebens,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 3 December 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 24810/06) 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”)
by a Croatian national, Mrs Marija
Parlov-Tkalčić (“the applicant”), on 12 June
2006.
- The
applicant was represented by Mrs D. Večerina, an advocate
practising in Zagreb. The Croatian Government (“the
Government”) were represented by their Agent, Mrs Š.
StaZnik.
- On
18 September 2007 the
President of the First Section decided to communicate the complaints
concerning length and impartiality to the Government. It was also
decided to rule on the admissibility and merits of the application at
the same time (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1948 and lives in Zlatar.
A. Background to the case
- In
July 1991 the applicant had a road traffic accident. Since the
insurance company C.O. (“the company”) refused to
compensate the resultant damage, on 8 July 1992 she instituted civil
proceedings against it in the Zlatar Municipal Court (Općinski
sud u Zlataru).
- On
15 March 1993 the Municipal Court ruled in the applicant's favour
ordering the company to pay her the amount of 222,501 Croatian dinars
(HRD) together with the statutory default interest accruable from
19 August 1991. The applicant collected the judgment debt on 16
July 1993.
- However,
in the meantime, on 2 July 1993 the Municipal Court issued a decision
rectifying a clerical error in its judgment of 15 March 1993. Instead
of ordering the company to pay the statutory default interest
accruable from 19 August 1991 on the entire amount of damages
awarded, (HRD 222,501), in the rectified judgment the court ordered
the company to do so only on the part of that amount, namely HRD
22,501, which was the amount awarded in respect of pecuniary damage.
The company was ordered to pay the accrued interest on the remaining
amount of HRD 200,000 only with effect from 15 March 1993.
- The
decision on rectification was served on the applicant's
representative on 26 July 1993.
B. Criminal complaint against the applicant
- On
10 September 1993 judge M.M., who was at the time the President of
the Zlatar Municipal Court, filed a criminal complaint against the
applicant with the Zlatar Municipal State Attorney's Office
considering that she had committed a criminal offence. M.M. stated in
his complaint that at the beginning of July 1993 a certain Z.F.C., a
lawyer employed with the insurance company C.O., had come to his
office explaining the clerical error in the Municipal Court's
judgment of 15 March 1993 and asking him to influence the applicant –
who was working at the time as an advocate – with a view to
returning the unlawfully obtained amount. After explaining the error
and mentioning that it had been rectified by the Municipal Court's
decision of 2 July 1993, judge M.M. stated:
“... despite the rectification of the judgment,
the advocate Marija Parlov-Tkalčić, to date does not want
to return the unlawfully appropriated money to [the company] C.O.,
Zabok, for which reason the civil proceedings no. P-330/93 were
instituted [against her].
Since we consider that the act of the advocate Marija
Parlov-Tkalčić also contains elements of criminal
liability, we are reporting it to you with a view to investigating it
and, possibly, instituting criminal proceedings against her ...”
- On
15 September 1993 the Zlatar Municipal State Attorney requested
transfer of jurisdiction because he was a friend of the applicant. On
22 September 1993 the case was transferred to the Krapina Municipal
State Attorney who, on 24 January 1994 indicted the applicant before
the Zlatar Municipal Court charging her with a criminal offence of
misappropriation (utaja).
- However,
on 3 February 1994 the judge assigned to hear the case requested that
the case be transferred to another court as its president had
actually filed a criminal complaint against the applicant. On 8 March
1994 the Supreme Court (decision no. Kr-103/1994-3) granted the
request and decided to transfer the case to the Krapina Municipal
Court (Općinski sud u Krapini). The decision in its
relevant part read as follows:
The ... judge [assigned to hear the case] of the Zlatar
Municipal Court made a request that the criminal proceedings ...
against Marija Parlov-Tkalčić ... be conducted before the
Krapina Municipal Court.
The request is substantiated by the fact that the
accused Marija Parlov-Tkalčić is an advocate with her
office in Zlatar and that the criminal complaint against her was
filed by the president of the Zlatar Municipal Court, which may
objectively cast doubt on the impartial administration of justice if
the proceedings are to be conducted before the Zlatar Municipal
Court.
The request is well-founded.
The circumstances highlighted in the request of the ...
judge [assigned to hear the case] constitute in the present instance
important reasons within the meaning of section 31(1) of the Criminal
Procedure Act for transferring territorial jurisdiction from the
Zlatar Municipal Court to the Krapina Municipal Court ...
- On
28 November 1997 the Krapina Municipal Court dismissed the charges
against the applicant given that the prosecution for the offence she
had been charged with had in the meantime become time-barred
(apsolutna zastara).
C. Civil proceedings for unjust enrichment
- Meanwhile,
on 26 August 1993 the insurance company C.O. brought a civil action
for unjust enrichment against the applicant in the Zlatar Municipal
Court seeking to recover the overpaid interest. The statement of
claim was served on the applicant on 7 September 1993.
- On
25 April 1997 the applicant made a counter-claim.
- The
court held hearings on 29 April and 2 December 1999 and 29 March
and 5 July 2000.
- At
the last-mentioned hearing the Zlatar Municipal Court gave judgment
against the applicant, ordering her to pay the plaintiff 12,525
Croatian kunas (HRK) together with the statutory default interest
accruable from 26 July 1993, as well as HRK 4,381.25 in costs. It
also declared her counter-claim inadmissible in one part while
dismissing it in the remaining part.
- On
11 January 2001 the applicant appealed to the Zlatar County Court
(Zupanijski sud u Zlataru) asking at
the same time for transfer of jurisdiction (svrsishodna
delegacija nadleZnosti) from both the Zlatar Municipal Court
and the Zlatar County Court. She argued, inter alia, that the
Zlatar County Court could not be expected to be impartial in the
examination of her appeal given that judge M.M. – who had in
the meantime become the president of that court – had
previously filed a criminal complaint against her.
- The
Government submitted that judge M.M. had been appointed the president
of the Zlatar County Court on 14 June 1996 but that this court had
become operational only on 15 March 1999.
- On
31 May 2001 the Supreme Court (Vrhovni sud Republike Hrvatske)
dismissed the applicant's request for transfer of jurisdiction. It
held that the circumstances relied on by the applicant did not cast
doubt on the professional and objective examination of her appeal by
the Zlatar County Court. Thus, there was no important reason
justifying the requested transfer.
- On
16 March 2005 the Zlatar County Court dismissed the applicant's
appeal and upheld the first-instance judgment. The decision was
served on the applicant on 20 April 2005.
- On
20 May 2005 the applicant lodged a regular constitutional complaint
under section 62 of the Constitutional Court Act against the
second-instance judgment. Relying on Article 29 of the Constitution,
she claimed, inter alia, that her constitutional right to an
impartial court had been violated because the impugned judgment had
been delivered by the court whose president had previously filed a
criminal complaint against her relying on the same facts as those
relied on by the first- and second-instance courts when giving their
decisions. On 3 November 2005 the Constitutional Court (Ustavni
sud Republike Hrvatske) dismissed her constitutional complaint.
The decision was served on the applicant on 21 December 2005.
D. The proceedings following the applicant's
constitutional complaint about the length of proceedings
- Meanwhile,
on 27 January 2005 the applicant lodged a constitutional complaint
under section 63 of the Constitutional Court Act complaining about
the length of the above civil proceedings for unjust enrichment. The
Constitutional Court examined the length of the proceedings in the
period during which they were pending before the ordinary courts thus
excluding the period of some seven months while the case was pending
before the Constitutional Court itself (see paragraph 21 above). On
15 February 2006 it found a violation of the applicant's
constitutional right to a hearing within a reasonable time and
awarded her HRK 5,000 in compensation.
E. Organisation of the Zlatar County Court and the
rules governing allocation of cases
- According
to information provided by the Government in reply to a request made
by the Court, the Zlatar County Court has a civil and a criminal
division. The civil division has six judges sitting in two different
panels. The president of the court
sits on one of the panels. The criminal division has three judges,
and judges of the civil division sit with them when necessary. The
cases are assigned to judges according to Rule 33 of the Court Rules
(see paragraph 40 below). Thus, before being allocated to judges,
cases are listed in chronological order according to the time when
they were received at the court. After that, cases are allocated to
judges in the alphabetical order of the panel presidents' last names.
However, account is being taken of whether some of the judges
participated in the first-instance proceedings in a particular case.
If they did, the case is not assigned to them.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Constitution
- Article
29 § 1 of the Constitution (Ustav Republike
Hrvatske, Official Gazette of the Republic of Croatia no. 41/2001
of 7 May 2001) reads as follows:
“In the determination of his rights and
obligations or of any criminal charge against him, everyone is
entitled to a fair hearing within a reasonable time by an independent
and impartial court established by law.”
B. Relevant legislation
1. The Constitutional Court Act
- The
relevant part of the 1999 Constitutional Act on the Constitutional
Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu
Republike Hrvatske, Official Gazette of the Republic of Croatia
no. 99/1999 of 29 September 1999 – “the Constitutional
Court Act”), as amended by the 2002 Amendments (Ustavni
zakon o izmjenama i dopunama Ustavnog zakona o Ustavnom sudu
Republike Hrvatske, Official Gazette of the Republic of Croatia
no. 29/2002 of 22 March 2002), which entered into force on 15 March
2002, reads as follows:
Section 62
“1. Everyone may lodge a constitutional complaint
with the Constitutional Court if he or she deems that the decision of
a state authority, local or regional self-government, or a legal
person invested with public authority, on his or her rights or
obligations, or about suspicion or accusation for a criminal offence,
has violated his or her human rights or fundamental freedoms, or
right to local or regional self-government, guaranteed by the
Constitution (hereinafter: constitutional right)...
2. If another legal remedy is allowed against the
violation of the constitutional rights [complained of], the
constitutional complaint may be lodged only after this remedy has
been exhausted.
3. In matters in which an administrative action or, in
civil and non-contentious proceedings, an appeal on points of law
[revizija] are allowed, remedies shall be considered exhausted
only after the decision on these legal remedies has been given.”
Section 63
“(1) The Constitutional Court shall examine a
constitutional complaint whether or not all legal remedies have been
exhausted if the competent court fails to decide a claim concerning
the individual's rights and obligations or a criminal charge against
him or her within a reasonable time ...
(2) If a constitutional complaint ... under paragraph 1
of this section is upheld, the Constitutional Court shall set a
time-limit within which the competent court must decide the case on
the merits...
(3) In a decision issued under paragraph 2 of this
section, the Constitutional Court shall assess appropriate
compensation for the applicant for the violation of his or her
constitutional rights ... The compensation shall be paid out of the
State budget within three months from the date a request for payment
is lodged.”
2. The Civil Procedure Act
- The
relevant part of the Civil Procedure Act (Zakon o parničnom
postupku, Official Gazette of the Socialist Federal Republic of
Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980, 69/1982,
58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991, and Official
Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 58/1993,
112/1999, 88/2001, 117/2003, 88/2005, 2/2007, 84/2008 and 123/2008),
as in force at the material time, read as follows:
Section 68
“The highest court of a certain type in the
Republic of Croatia may, following a proposal by the party or the
competent court, assign another court from its territory to decide a
certain case if this would obviously facilitate the proceedings or
for other important reasons.”
Section 71
A judge ... shall be disqualified from exercising his or
her functions:
...
6) if other circumstances exist to cast doubt on his or
her impartiality.
Section 73
(1) Parties may also request withdrawal [of a
judge]...
(2) A party may request withdrawal of a judge
of a higher court in the appeal or a reply thereto...
Section 74
(1) The party's request for withdrawal of a
judge shall be decided by the president of the court.
(2) Should the party request withdrawal of
the president of the court, such request shall be decided by the
president of the immediately higher court.
3. The Courts Act
- The
relevant provisions of the Courts Act (Zakon o sudovima,
Official Gazette of the Republic of Croatia nos. 3/1994, 100/1996,
131/1997, 129/2000, 67/2001, 17/2004 and 141/04), as in force at the
material time, read as follows:
- Section
26(1) provided that the president of a court exercised the duties
related to court administration in accordance with the law and court
rules.
- Section
30(2) provided that the president of the court or the relevant
division of the court was authorised to suspend the service of a
decision delivered by a single judge or panel of judges, which was
contrary to the legal view adopted by another judge or panel, until
the differences in legal views were discussed at the meeting of the
division of the court. If the division adopted the view contrary to
that decision, a judge or panel which delivered it had to decide the
case again.
- Sections
52-52c read as follows:
a) Performance of judge's duties
Section 52
President of the court in which a judge exercises his or
her duties determines for the preceding calendar year:
1. whether a judge delivered the number of decisions
which he or she had to deliver pursuant to the framework criteria for
the performance of judges, where [the president of the court] shall
determine the result of judge's work according to the types of cases,
in absolute numbers and in percentage,
2. whether a judge respected the time-limits within
which he or she has to pronounce, prepare and send a decision,
indicating whether the time-limits were fully respected or respected
in more or less than 75% of the cases,
3. how many appeals were lodged against the
first-instance decisions and what were the decisions delivered in the
appellate proceedings ([that is whether the first-instance decisions
were] upheld, quashed or reversed), in absolute numbers and in
percentage, and how many decisions were quashed for serious
procedural errors,
4. how many extraordinary remedies were lodged against
the second-instance decisions ([that is whether the second-instance
decisions were] upheld, quashed or reversed), in absolute numbers and
in percentage terms.
5. ...
Section 52a
If a judge did not deliver the number of decisions he or
she had to deliver pursuant to the framework criteria for the
performance of judges, because he or she was charged with
exceptionally difficult and complex cases, it shall be assumed that
he or she achieved the adequate result in his or her work, increased
by 10%. That fact shall be stated in the operative provisions of the
decision in which the president of the court determines the
performance of the judge's duties.
Section 52b (1)
The circumstances from section 52 and 52 a of this Act
shall be established for the preceding calendar year by the president
of the court in a decision that has to be delivered at the latest by
28 February of the current year.
Section 52c
(1) A judge who is not satisfied with a
decision of the president of the court may appeal against it within
eight days of its service.
(2) The appeal shall be lodged with the
president of the higher court through the president of the court
which delivered the decision.
- Sections
53 and 53a provided that judicial panels were the competent organs
for appraisal of judges in the process of their permanent appointment
to judicial office as well as in the process of their appointment to
another court.
- Judicial
panels were organs formed for the territories of each county court
and were composed of a certain number of judges of the county court
at issue and judges of the municipal courts operating on the
territory of that county court.
- A
judicial panel had to appraise a judge appropriately according to all
the elements listed in section 52. In doing so it had to take into
consideration the final decision of the president of the court on the
performance of that judge's duties as well as other documents related
to his or her work.
- Section
63 provided that a judge had to inform the president of the court
about every job it accepted and all business it undertook. The
president of the court was to decide whether a job or business was
incompatible with the judicial office. The judge could appeal against
the president's decision to the Minister of Justice.
- Section
73a defined the president of a court as a judge who, apart from his
or her judicial function, exercises the duties related to court
administration.
- Section
73g(1) provided:
Section 73g (1)
A judge shall be relieved of the duty of president of
the court if in the supervision of court administration it is
established that:
1. the president of the court does not exercise his or
her duties related to court administration in accordance with the
applicable regulations or in timely fashion,
2. [he or she] breaches the rules governing assignment
of cases, either directly or by failure to supervise,
3. [he or she], by breaching the applicable regulations
or in some other way, violates the principle of judicial independence
in the administration of justice,
4. [he or she] does not submit requests to institute
disciplinary proceedings in cases prescribed by law.
4. The National Judicial Council Act
- The
National Judicial Council Act (Zakon o drZavnom
sudbenom vijeću, Official Gazette of the Republic of
Croatia nos. 58/1993, 49/1999, 129/2000 and 150/2005) regulates the
composition, powers and operation of the authority competent to
decide on the appointment and dismissal of judges – the
National Judicial Council. It regulates, in particular, the process
of appointment of judges, disciplinary offences in the exercise of
judicial office and disciplinary proceedings against judges. The
relevant provisions of the Act, as in force at the material time,
read as follows:
- Sections
16-18 regulated the procedure of appointment of judges. After
receiving applications from the candidates for the vacant post of a
judge, the Minister of Justice had to, before submitting the list of
candidates to the National Judicial Council, request an opinion about
the candidates from the respective judicial panels (see paragraphs
31-33 above). Section 17 provided that the competent judicial panel,
before issuing its own opinion on a certain candidate, could request
information on the candidate from the president of the court in which
that judge had been exercising his or her duties.
- Sections
20-30 regulated disciplinary proceedings against judges. Sections
20(2), 24(1) and 28 read as follows:
Section 20
(1) ...
(2) Disciplinary offences are:
1. ...
2. unjustified failure to exercise judicial duties, or
failure to exercise them in timely fashion,
3. exercising service or activities, or doing business
incompatible with judicial office,
4. ...
...
(3) Disciplinary proceedings for an offence from
paragraph 2 subparagraph 2 of this section shall be instituted in
particular if:
- a judge, without justified reason, is not preparing
and sending court decisions within the statutory time-limits,
- ...
- without justified reason, the number of decisions
delivered [by a judge] in one year is below the average in the
Republic of Croatia.
Section 24 (1)
If there is a reasonable suspicion that a judge has
committed a disciplinary offence, the president of the court in which
that judge exercised his or her duties is obliged to make a request
that the disciplinary proceedings be instituted against [that judge].
Section 28
(1) A judge shall be suspended from exercising his or
her duties if criminal proceedings are instituted against him or her
for a criminal offence punishable by more than five years'
imprisonment, or while he or she is in detention.
(2) ...
(3) The decision on suspension in the case from
paragraph 1 of this section shall be delivered by the president of
the court.
5. The Court Rules
- The
Court Rules (Sudski poslovnik, Official Gazette of the
Republic of Croatia nos. 80/1997, 20/1998, 118/2001, 49/2003,
32/2004, 9/2006, 116/2008, 125/2008 and 146/2008) are a subordinate
legislation regulating internal operation of courts. The relevant
provisions, as in force at the material time, read as follows:
Rule 2
The internal operation of the court is separate from
adjudication.
Rule 8
(1) The president of the court supervises the
correct and timely discharge of all duties in the court.
(2) Supervision is effectuated through
inspection of the work of court panels, single judges..., inspection
of files, decision and decisions of higher courts..., review of the
registration books..., supervision of the work of the court's central
office...
Rule 9 (1)
1. The president of the court coordinates the
work of court divisions and other organisational units in the court.
When the president of the court notices inconsistent practices or
practices contrary to existing regulations or departure from
established case-law of higher courts in the operation of divisions,
panels or single or investigation judges, he or she shall submit his
or her observations for discussion at the meetings of judges.
Rule 33 (2) to (5)
(2) Cases are assigned to judges by the
president of the court in courts having no divisions or by the
president of a division in courts having divisions.
(3) Before assigning cases to judges, cases
are listed in a chronological order...
(4) Cases are then assigned in alphabetical
order of judges within the court or a division, taking into account
the equal distribution of cases during the year, the type and
complexity of cases. Second-instance cases are assigned in
alphabetical order of the panel presidents, who then assign the cases
in alphabetical order to the judges who are members of the panel.
(5) Should certain cases not be immediately
assigned to judges, due to a backlog of cases or higher workload of
judges, the president of the court or a division shall, pursuant to
the criteria set forth in paragraphs 2 and 3 of this section, without
delay assign those cases to judges.
Rule 34
(1) As an exception to the provision of Rule
33 of the Court Rules whereby a case had to be assigned to a certain
judge, the case shall in the event of [his or her] objective
indisposition be assigned to the judge in the court or a division
[whose name is] next in the alphabetical order.
(2) The procedure prescribed in paragraph 1
of this section shall also apply to cases that have already been
assigned to judges who are objectively indisposed from conducting the
proceedings due to withdrawal, absence from work, particularly high
workload or for other justified reasons, when this is necessary to
ensure lawful and efficient operation of the court and the protection
of the right of the parties to the administration of justice without
undue delay.
Rule 43 (2)
The yearly holiday plan is determined by the president
of the court after obtaining opinions of the organisational units of
the court, bearing in mind the needs of service and the wishes of the
employees.
C. The case-law of the Supreme Court on transfer of
jurisdiction
1. Criminal cases
- Section
31 of the Criminal Procedure Act of 1993 (Zakon o krivičnom
postupku, Official Gazette of the Socialist Federal Republic of
Yugoslavia nos. 4/1977, 13/1985, 36/1977, 26/1986, 74/1987, 57/1989
and 3/1990, and Official Gazette of the Republic of Croatia nos.
53/1991, 91/1992, 34/1993 (consolidated text), 38/1993 (corrigendum)
and 28/1996) and section 32 of the Criminal Procedure Act of 1997
(Zakon o kaznenom postupku, Official Gazette of the Republic
of Croatia nos. 110/1997, 27/1998 (corrigendum), 58/1999, 112/1999,
58/2002, 143/2002 (corrigendum), 62/2003 (consolidated text) and
115/2006) provided that the immediately higher court could, following
a proposal by an investigation judge, single judge, president of the
panel or state attorney, assign another court from its territory to
decide a case if that would obviously facilitate the proceedings or
for other important reasons. In cases involving the applicant and/or
the Zlatar Municipal Court, the Supreme Court applied the above
provisions in the following way:
- Apart
from the above case no. Kr-103/1994-3 (see paragraph 11 above), the
Supreme Court dealt with one more criminal case involving the
applicant. In its decision no. Kr-419/1990-2 of 9 January 1991 the
Supreme Court granted a request for transfer of jurisdiction from the
Zlatar Municipal Court to another court submitted by the single judge
of that court in the case where the applicant was the accused in
criminal proceedings instituted by one of the judges of that court as
a private prosecutor.
- In
other cases involving the Zlatar Municipal Court the Supreme Court
granted requests for transfer of jurisdiction in the cases where: the
accused was the mother of that court's employee R.Š. (decision
no. Kr-64/1990-3 of 4 April 1990), the accused was the head of the
land registry division of that court (Kr-196/1990-2 of 31 May 1990),
the private prosecutor was the sister of one of the court's employees
(Kr-315/1993-2 of 12 October 1993), the second accused was the
sister of an employee of the court, R.Š. (Kr-316/1993-3 of 12
October 1993), the injured party was a brother-in-law of an employee
of the court, R.Š. and one of the witnesses her sister
(Kr-43/1994-3 of 21 April 1994), the injured party instituted
criminal proceedings by private prosecution against the president of
the court, judge M.M. (Kr-316/1994-4 of 4 January 1995), the accused
was a lay assessor (sudac porotnik) of that court (Kr-88/03-3
of 22 April 2003), the accused were employees of the Krapina Social
Welfare Centre with whom the court cooperated on a daily bases in
cases against juvenile offenders and cases involving offences
committed against minors (Kr-138/06-3 of 17 October 2006). In the
last-mentioned case the Supreme Court reasoned that the circumstance
on the basis of which it granted the request for transfer of
jurisdiction:
“... should be viewed in the light of the fact
that the particular case concerns a working environment with a small
number of employees, which inevitably leads to daily contact between
them.”
2. Civil cases
- In
its practice the Supreme Court applied section 68 of the Civil
Procedure Act (see paragraph 26 above) in the following way:
(a) Cases involving the applicant
- Apart
from the case no. Gr-91/1992-2 of 21 May 1992, to which the applicant
referred to in her observations (see paragraph 77 below) and in which
it granted the request for transfer of jurisdiction from the Zlatar
Municipal Court to another court, the Supreme Court did not deal with
any other civil case involving the applicant.
(b) Cases involving the Zlatar Municipal Court or the
Zlatar County Court
(i) Cases in which requests for transfer
of jurisdiction were granted
- In
its decision no. Gr-107/1994 of 21 June 1994 the Supreme Court
granted the request for transfer of jurisdiction from the Zlatar
Municipal Court to another court submitted by the respondent in a
case where the wife of one of the plaintiffs was employed at that
court. The Supreme Court held that this fact alone would not
constitute an important reason for transfer of jurisdiction but
nevertheless granted the request, taking into account that the court
in question was a small court, which had also agreed with the
plaintiff's request, in order to dispel any suspicion as regards its
impartiality.
- In
its decision no. Gr-140/1995-2 of 12 April 1995 the Supreme Court
granted a request for transfer of jurisdiction from the Zlatar
Municipal Court to another court submitted by the respondent in a
case where the plaintiff was employed as the head accountant of that
court. In so deciding the Supreme Court reasoned as follows:
“Zlatar Municipal Court falls into the category of
small courts. Its seat is in a small place [town] and it is common
knowledge that the connection between people in institutions in small
places and with a small number of employees is always stronger.”
- In
its decision no. Gr1-749/04-2 of 28 April 2005 the Supreme Court
granted the request submitted by the Zlatar Municipal Court for
transfer of jurisdiction from that court to another one in the case
where the plaintiff was a lay assessor of the same court.
- In
its decision no. Gr-309/1994-2 of 13 June 1995 the Supreme Court
granted a request for transfer of jurisdiction from the Zlatar
Municipal Court to another court submitted by the plaintiffs. The
Supreme Court ruled that the fact that the plaintiffs had made a
criminal complaint against the president of the Zlatar Municipal
Court and against one of the judges, coupled with that court's
statement made in reply to the request for transfer of jurisdiction
that some of its judges and the president intended to file a criminal
complaint against the plaintiffs, was an important reason for
transfer of jurisdiction.
- In
other cases involving the Zlatar Municipal Court the Supreme Court
granted requests for transfer of jurisdiction in cases where: the
parties were the brother-in-law and the sister-in-law of the
president of that court (decision no. Gr-11/1990 of 14 February
1990), the respondents were the sister and the brother-in-law of
R.Š., an employee of the land registry division of the court
(decision no. Gr-148/1998-2 of 29 July 1998), the second respondent's
wife was employed by the Zlatar Municipal Court and the plaintiff had
until recently been lay assessor of the same court (decision no.
Gr1-538/05-2 of 25 October 2005), the respondent was the husband of
the typist employed with the court and assigned to the only judge,
apart from the court's president, who dealt with civil cases
(decision no. Gr1-214/06-2 of 19 May 2006).
(ii) Cases in which requests for transfer
of jurisdiction were refused
- In
its decision no. Gr-883/00-2 of 14 December 2000 the Supreme Court
refused a request submitted by the Zabok Municipal Court for transfer
of jurisdiction from that court to another one in the case where the
president of the Zlatar County Court sued the State, challenging the
authenticity of a document he had authenticated while a judge of the
Zlatar Municipal Court. The Supreme Court ruled that the fact that
the plaintiff was the president of the appellate court in the matter
was not an important reason for transfer of jurisdiction.
- In
other cases involving the Zlatar Municipal Court or the Zlatar County
Court the Supreme Court refused requests for transfer of jurisdiction
in cases where: the wife of a former president of the Zlatar
Municipal Court had worked in the same company as the plaintiff
(decision no. Gr-474/1990-2 of 27 December 1990), the plaintiff's
representative was a former judge of that court (decision no.
Gr-397/1995-2 of 10 January 1995), a former judge of the Zlatar
County Court was the father-in-law of the legal representative of the
enforcement creditor (decision no. Gr-826/1999-2 of 16 March 2000),
the plaintiff's representative was a former judge of the Zlatar
Municipal Court (decision no. Gr1-140/02-2 of 13 March 2002).
(c) Civil cases involving a criminal complaint
- In
its decision no. Gr-354/1991-2 of 19 November 1991 the Supreme Court
refused a request submitted by the Krapina Municipal Court for
transfer of jurisdiction from that court to another one, holding that
the fact that the Krapina Municipal Court had filed a criminal
complaint for insult against the plaintiff was not an important
reason for transfer of jurisdiction.
- In
its decision no. Gr-7/1999-2 of 18 March 1999 the Supreme Court, in
refusing the request for transfer of jurisdiction, stated as a matter
of principle that making a criminal complaint by one of the parties
to the proceedings against the judge assigned to hear the case did
not constitute an important reason for transfer of jurisdiction to
another court. It followed and further developed this practice in the
subsequent cases, for example, cases nos. Gr-88/1999-2 of 5 May 1999,
Gr-79/00-2 of 14 June 2000, Gr-738/00-2 of 11 October 2000,
Gr-106/01-2 of 6 June 2001, Gr-530/01-2 of 5 September 2001 and
Gr-828/01-2 of 20 December 2001, in which it refused requests for
transfer of jurisdiction submitted by one of the parties to the
proceedings and based solely on the fact that he or she had
previously filed a criminal complaint against the judge assigned to
hear the case and/or the president or other judges or employees of
the court at issue. In case no. Gr-965/01-2 of 27 December 2001
the Supreme Court reached the same conclusion but also took into
account the nature of the dispute and the fact that the case was
being examined by a court with many judges.
- The
only exception to this line of case-law was case no. Gr2 159/02 2
in which the Supreme Court on 8 April 2003 granted the request for
transfer of jurisdiction from the Pag Municipal Court to another
court submitted by the plaintiff in a case where he had challenged
the validity of a certain entry in the land register of that court.
The Supreme Court held that the fact that the plaintiff had filed
criminal complaints against the judge in the case and against the
president of the Pag Municipal Court who had previously approved the
impugned entry in the land register, was an important reason for
transfer of jurisdiction in the particular circumstances because the
court in question had only (these) two judges.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE EXCESSIVE LENGTH OF PROCEEDINGS
- The
applicant complained that the length of the above civil proceedings
for unjust enrichment was incompatible with the “reasonable
time” requirement, laid down in Article 6 § 1 of the
Convention, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair... hearing within a
reasonable time by an ... impartial tribunal established by law.”
- The
Government contested that argument.
- The
Court considers that the period to be taken into consideration began
on 6 November 1997, the day after the entry into force of the
Convention in respect of Croatia. However, in assessing the
reasonableness of the time that elapsed after that date, account must
be taken of the state of proceedings at the time. In this connection
the Court notes that the proceedings commenced on 26 August 1993 when
the insurance company C.O. brought a civil action for unjust
enrichment against the applicant and that the statement of claim was
served on her on 7 September 1993. Consequently, the case had already
been pending for some four years and two months before the
ratification.
- The
proceedings ended on 21 December 2005 when the Constitutional Court's
decision of 3 November 2005 was served on the applicant (see
paragraph 21 above). They thus lasted some eight years and one month
after the ratification, for three levels of jurisdiction.
A. Admissibility
- The
Government submitted that the applicant could no longer claim to be a
victim within the meaning of Article 34 of the Convention since the
Constitutional Court had granted the applicant's constitutional
complaint, found a violation of her constitutional right to a hearing
within a reasonable time and awarded her compensation. The violation
complained of had, therefore, been remedied before the domestic
authorities and the applicant had lost her victim status.
- The
applicant disagreed.
- The
Court notes that the Constitutional Court awarded the applicant the
equivalent of approximately 683 euros (EUR). This amount is
manifestly unreasonable having regard to what the Court would have
been likely to award her under Article 41 of the Convention. It
therefore cannot be regarded as adequate in the circumstances of the
case (see the principles established under the Court's case-law in
Cocchiarella v. Italy [GC], no. 64886/01, §§ 65-107,
ECHR 2006 V). Accordingly, the applicant can still claim to be a
“victim” of a violation of her right to a hearing within
reasonable time, and the Government's objection must therefore be
dismissed.
- Having regard to the above facts the Court considers
that this complaint is not manifestly ill-founded within the meaning
of Article 35 § 3 of the Convention. It also notes that it is
not inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Cocchiarella v. Italy [GC], cited above,
§ 68, and Frydlender v. France [GC], no.
30979/96, § 43, ECHR 2000-VII).
- The
Court concurs with the Constitutional Court that the proceedings in
question had lasted an unreasonably long time as it has itself
frequently found violations of Article 6 § 1 of the Convention
in cases raising similar issues to the one in the present case (see,
for example, Škare v. Croatia, no. 17267/03, 15
June 2006). Having examined all the material submitted to it, the
Court considers that the Government have not put forward any fact or
argument capable of persuading it to reach a different conclusion in
the present case. Having regard to its case-law on the subject, the
Court considers that in the instant case the length of the
proceedings was excessive and failed to meet the “reasonable
time” requirement.
There
has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE LACK OF IMPARTIALITY
- The
applicant further complained, also under Article 6 § 1 of the
Convention, that the domestic courts that had examined her case in
the civil proceedings for unjust enrichment lacked impartiality, in
particular because the president of the second-instance court had
previously filed a criminal complaint against her concerning the
facts of the case.
- The
Government contested that argument.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties' arguments
(a) The Government
- The
Government first highlighted that the president of the Zlatar County
court, judge M.M., had not participated in any way in the civil
proceedings instituted against the applicant, neither in the
proceedings at the first-instance nor in the appellate proceedings.
Moreover, the judges who had adjudicated the case had had no personal
interests in the outcome of the proceedings. Thus, as the applicant
provided no evidence concerning the partiality of the judges who had
heard the case, it followed that there had been no appearance of
subjective partiality.
- As
regards the objective test, the Government first emphasised that M.M.
had filed his criminal complaint against the applicant in his
capacity as a president of the court, and not in his own name. In
doing so he had acted pursuant to the relevant provisions of the
Criminal Procedure Act according to which all state authorities and
legal entities were under a duty to report criminal offences subject
to public prosecution that had been reported to them or about which
they had learned themselves. The Government further emphasised that
under Croatian law failure to report a criminal offence is in itself
a criminal offence. The fact that, following M.M.'s criminal
complaint, the Krapina Municipal State Attorney Office had instituted
criminal proceedings against the applicant, in the Government's view,
showed that there was a reasonable suspicion that a criminal offence
had indeed been committed.
- Second,
the Government pointed out that the powers conferred on the president
of the court by
the Courts Act and the Court Rules
concerned
only the internal operation of courts. Thus,
the function of the president of a court was an administrative one
strictly separated from the judicial function and hence did
not empower the court president to carry out judicial supervision in
any way or to have any influence on decisions rendered by other
judges in particular cases.
72. Third,
the Government extensively cited the Supreme Court's case-law, which,
in their view, demonstrated that transfer of jurisdiction was being
granted only exceptionally, and when it was really justified, having
regard to the fact that judges were independent and decided the cases
according to the Constitution and laws. For example, the fact
that one of the parties was the next of kin of any of the judges of a
court in question was, in principle, assessed to be an important
reason for transfer of jurisdiction. However, the Supreme Court had
rejected requests for transfer of jurisdiction in situations when a
party would refer to this fact only after becoming dissatisfied with
court decisions (case no. Gr1 386/06). Neither was a subjective
belief that judges were biased considered to be an important reason
for transfer of jurisdiction, because judges were generally presumed
to be objective and to follow the law when hearing cases (case no.
Gr1 180/04). For the same reason, a request for transfer of
jurisdiction alleging that one of the parties to the proceedings had
been a judge acquainted with the judges of the court in question had
been rejected (case no. Gr1-111/05). Furthermore, although the
Supreme Court had granted many requests for transfer of jurisdiction
when court employees were parties to the proceedings, it had rejected
such requests in situations when the court at issue had been a large
court with a large number of judges (case no. Gr1-804/03). Also, the
Supreme Court had held in several cases that the fact that a party to
the proceedings had filed a criminal complaint against one or all of
the judges of the court in question or against its president was not
a reason for transfer of jurisdiction (cases nos. Gr1-919/03,
Gr1-851/03 and Gr7/1999).
73. Against
that background, the Government noted that at the time when the
first-instance civil proceedings for unjust enrichment had been
instituted against the applicant before the Zlatar Municipal Court,
as well as in the subsequent three years, M.M. was the president of
the court. However, at that time the applicant had not asked for
jurisdiction to be transferred to another court. Only in the
appellate proceedings had she requested transfer of jurisdiction from
the Zlatar County Court due to, inter
alia,
the alleged bias of its president, judge M.M. This conduct by the
applicant had clearly been motivated by her dissatisfaction with the
first-instance judgment, because she had not found it necessary to
request transfer of jurisdiction to another court before the courts
expressed certain legal views in the case.
74. Lastly,
the Government pointed out that a long period of time (more than
seven years) had elapsed between the time when the criminal complaint
was filed against the applicant and the time when the applicant
lodged her appeal with the Zlatar County Court. In this period, M.M.
had not participated in the criminal proceedings in any way, nor was
he informed about their outcome. Also, he had no personal interest in
either the criminal or civil proceedings against the applicant.
Therefore, the Government considered this another reason why there
was no objectively justified fear that, after such a long time, M.M.
would have had any bias towards the applicant in exercising his
duties as president of the court.
75. In
sum, the Government considered in the light of the foregoing that
there were no objective reasons for the applicant to fear that the
Zlatar County Court would not be impartial in the determination of
her civil rights and obligations.
(b) The applicant
- The
applicant pointed out that in the criminal proceedings against her
the Krapina Municipal State Attorney's Office had requested transfer
of jurisdiction from the Zlatar Municipal Court to the Krapina
Municipal Court and that on 8 March 1994 the Supreme Court had
granted that request (see paragraph 11 above).
- Moreover,
the applicant drew the Court's attention to another case, in which
she as an advocate had represented a plaintiff, a certain Z.P.,
against the association A.Z. In that case her client had been
dismissed from his job and had sued his employer seeking
reinstatement. At the same time he had requested transfer of
jurisdiction from Zlatar Municipal Court to another court because the
decision on dismissal had been signed by the president of the
respondent association, who also happened to be the president of the
Zlatar Municipal Court. In its decision no. Gr-91/1992-2 of 21 May
1992 the Supreme Court allowed the requested transfer of jurisdiction
from the Zlatar Municipal Court to the Zabok Municipal Court.
2. The Court's assessment
- The
Court reiterates that, according to its constant case-law, the
existence of impartiality for the purposes of Article 6 § 1 must
be determined according to a subjective test where regard must be had
to the personal conviction and behaviour of a particular judge, that
is, whether the judge held any personal prejudice or bias in a given
case; and also according to an objective test, that is to say by
ascertaining whether the tribunal itself and, among other aspects,
its composition, offered sufficient guarantees to exclude any
legitimate doubt in respect of its impartiality (see, inter alia,
Fey v. Austria, 24 February 1993, §§ 27, 28 and 30,
Series A no. 255 A; and Wettstein v. Switzerland,
no. 33958/96, § 42, ECHR 2000-XII).
- As
to the subjective test, the personal impartiality of a judge must be
presumed until there is proof to the contrary (see Wettstein,
cited above, § 43).
- As
to the objective test, it must be determined whether there exist
ascertainable facts which may raise doubts as to the impartiality of
the judges who decide the case. This implies that, in deciding
whether in a given case there is a legitimate reason to fear that a
tribunal lacks impartiality, the standpoint of the person concerned
is important but not decisive. What is decisive is whether this fear
can be held to be objectively justified (see Wettstein, cited
above, § 44, and Ferrantelli and Santangelo v. Italy, 7
August 1996, § 58, Reports of Judgments and Decisions
1996 III).
- The
Court observes at the outset that in the present case judge M.M. did
not sit on the panel of the Zlatar County Court which decided the
applicant's appeal, nor did the applicant adduce any evidence to
indicate personal bias on the part of any of the judges in that
panel. Rather, she questioned that court's partiality on account of
the fact that the judge M.M., who was its president, had previously
filed a criminal complaint against her based on the same facts on
which the plaintiff had based its action for unjust enrichment. The
Court therefore considers that the personal impartiality of the
judges who decided on the applicant's appeal is not at issue in the
present case and considers that the complaint of lack of impartiality
must be examined from the standpoint of the objective impartiality
test.
- Thus,
the Court is called upon to determine whether the circumstances
related to the president of the court at issue, could have
compromised the impartiality of the whole tribunal as such. The Court
reiterates that in cases of this kind even appearances may be of a
certain importance or, in other words, “justice must not only
be done, it must also be seen to be done” (see De Cubber v.
Belgium, 26 October 1984, § 26, Series A no. 86). What is at
stake is the confidence which the courts in a democratic society must
inspire in the public (see Wettstein, loc. cit.; and Castillo
Algar v. Spain, 28 October 1998, § 45, Reports
1998 VIII).
- However,
while appearances have a certain importance, they are not decisive in
themselves. One must frequently look beyond appearances and
concentrate on the realities of the situation (see, mutatis
mutandis, De Jong, Baljet and Van den Brink v.
the Netherlands, 22 May 1984, § 48, Series A no. 77).
Therefore, in order to establish whether the applicant's alleged
fears as to partiality were objectively justified, the appearances
have to be tested against the objective reality behind them.
- Looking
behind the appearances, the Court does not find that the realities of
the situation in the present case conflicted with the applicant's
right to a hearing by an impartial tribunal.
- In
this connection the Court first reiterates that judge M.M., was not a
member of the panel of the Zlatar County Court which examined the
applicant's appeal. It also takes note of the Government's arguments
that: (a) M.M. filed the criminal complaint against the applicant in
his official capacity (see paragraph 70 above), (b) more
than seven years elapsed between that time and the time when she
lodged her appeal (see paragraph 74 above), and (c) he had no
personal interest in either the criminal or civil proceedings against
her (see paragraphs 69 and 74 above).
- The
Court further reiterates that the concepts of independence and
objective impartiality are closely linked (see, for example,
Findlay v. the United Kingdom, 25 February 1997, § 73,
Reports of Judgments and Decisions 1997 I) and that it is
sometimes difficult to dissociate them (see, for example, Bochan
v. Ukraine, no. 7577/02, § 68, 3 May 2007). As regards
the issue of “independence”, the Court further reiterates
that in order to establish whether a tribunal can be considered
“independent” for the purposes of Article 6 § 1,
regard must be had, inter alia, to the manner of appointment
of its members and their term of office, the existence of safeguards
against outside pressures and the question whether it presents an
appearance of independence (see, among many other authorities,
Findlay, loc. cit.).
However, judicial independence demands that individual judges
be free not only from undue influences outside the judiciary, but
also from within. This internal judicial independence
requires that they be free from directives or pressures from
the fellow judges or those who have administrative responsibilities
in the court such as the president of the court or the president of a
division in the court (see, by implication, Daktaras v. Lithuania,
no. 42095/98, ECHR 2000 X; Bochan, cited above; and
Moiseyev v. Russia, no. 62936/00, § 182, 9 October 2008).
The absence of sufficient safeguards securing the independence of
judges within the judiciary and, in particular, vis-à-vis
their judicial superiors, may lead the Court to conclude that
an applicant's doubts as to the (independence and) impartiality of a
court may be said to have been objectively justified (see, for
example, Daktaras, cited above, §§ 36 and 38;
Bochan, cited above, § 74; and Moiseyev, cited
above, § 184).
- Therefore,
the question for the Court to examine in the present case is whether
the judges of the Zlatar County Court who were the members of the
panel that decided the applicant's appeal in the civil proceedings
for unjust enrichment were sufficiently independent of that court's
president (see, mutatis mutandis, Findlay, cited above,
§ 75).
- In
this connection the Court first notes that under Croatian law court
presidents perform only administrative (managerial and
organisational) functions, which are strictly separated from judicial
function, that is, from adjudication of individual cases (see
paragraphs 28 and 40 above). Judge M.M. could not therefore take
advantage of his hierarchical position to give the rapporteur or
other members of the panel instructions as to how to decide on the
applicant's appeal, and there is nothing to indicate that he did so
in her case.
- Furthermore,
while it is true that judge M.M., as the president of the Zlatar
County Court, was charged with an administrative duty to, inter
alia, assign cases to judges, the Court notes that Croatian
legislation at the material time contained rules governing the
distribution of cases to judges within courts, which means that cases
were not distributed by the court presidents at their own discretion.
As it transpires from the information submitted by the Government
(see paragraph 23 above) and the Court Rules (see paragraph 40
above), in the Zlatar County Court civil cases were first
listed in chronological order and then assigned by the president of
the court to one of the two panel presidents in alphabetical order of
their last names, who further assigned them, also in
alphabetical order, to one of the judges within the panels.
The only exception to this rule was envisaged for situations where a
judge to whom the case was to be assigned had participated in the
first-instance proceedings in the same case and therefore was not
allowed to examine it. While it is true that the
president of the court could reassign cases for important reasons
such as a longer illness or a judge's particularly high workload,
such reassignment was also subject to objective criteria set forth in
Rule 34 of the Court Rules. The Court
further notes that under section 73g(1) of the Courts Act, a breach
by the president of the court of the above rules on assignment of
cases was one of the grounds for his or her removal from the office
(see paragraph 36 above). The Court therefore concludes that Croatian
law in force at the material time provided for adequate
safeguards against arbitrary exercise of court presidents' duty to
(re)assign cases to judges (see, by converse implication, Moiseyev
v. Russia, no. 62936/00, § 182, 9 October 2008).
- It
follows that judge M.M. could not have influenced the choice of the
judge rapporteur or the composition of the panel and that in this
respect the present case is to be distinguished from the Daktaras
case (cited above) where the president of the criminal division of
the Supreme Court chose the judge rapporteur and the members of the
panel. Nor, in contrast to the Moiseyev case (cited above), is
there any evidence that judge M.M. reassigned the applicant's case.
Furthermore, in the Daktaras case, the
proceedings before the Supreme Court, of which the applicant
complained about, were instituted by the petition of the president of
that court's criminal division whereas in the instant case judge M.M.
played no role in bringing the civil action for unjust enrichment or
in the ensuing proceedings against the applicant.
- The
Court must further examine whether there were any other elements in
the (hierarchical) relationship between judges who decided the
applicant's appeal and the president of the Zlatar County Court,
which were capable of curbing their internal independence. At
a more general level the question is whether the powers conferred on
the court presidents under the Croatian law were capable of
generating latent pressures resulting in
judges' subservience to their judicial superiors or, at least,
making individual judges reluctant to contradict their president's
wishes, that is to say, of having
“chilling” effects on the internal independence of
judges. In answering that question it has to be borne in mind
that any supervision of the work of judges involves a certain risk to
their internal independence and that it is impossible to devise a
system that would completely eliminate that risk.
- In
this respect the Court first notes that under Croatian law as in
force at the relevant time the court presidents, inter alia,
played a role in the appraisal of judges (see paragraphs 30 and 31
above), were giving opinions to judicial panels who proposed
candidates for judges to the National Judicial Council (see paragraph
38 above), were authorised to initiate disciplinary proceedings
against judges before the National Judicial Council and decide on
their temporary suspension (see paragraph 39 above). However, in
neither of these areas the court presidents had exclusive powers or
unfettered discretion. In particular, a judge who received an
unfavourable appraisal from the president of the court in which he or
she was working could have appealed against it to the president of
the immediately higher court (see paragraph 30 above). The appraisal
of judges in sensitive situations of their permanent appointment or
career advancement was within the purview of judicial panels composed
of their peers, which were only required to take into consideration
the final opinion of the president of the court on the performance of
the judge in question (see paragraph 33 above). What is more, these
panels were only giving opinions on candidates for judicial office to
the Minister of Justice. He or she was the one submitting the list of
candidates to the National Judicial Council, which was the only
authority competent to finally decide on the appointment of judges
(see paragraph 38 above). As regards the power to discipline judges,
the court presidents could only institute disciplinary proceedings
against judges (see paragraph 39 above) whereas the authority to
conduct disciplinary proceedings and acquit or impose a penalty lay
exclusively with the National Judicial Council (see paragraph 37
above). While the court presidents had the authority to temporarily
suspend the judges, they could have done so only if criminal
proceedings were instituted against a judge or if he or she was in
detention (see paragraph 39 above).
- It
follows that, in particular as regards career advancement and
discipline, i.e. in the areas that could potentially have the most
significant impact on the internal independence of judges, the powers
of the court presidents were rather limited.
- For
these reasons, the Court considers that Croatian
law at the material time had adequate mechanisms to prevent improper
interferences coming from within the judiciary, and that the powers
vested in the court presidents could not have reasonably been viewed
as running counter, or
having “chilling” effects on, the internal independence
of judges.
- In
the light of the foregoing, the Court is satisfied that the judges of
the Zlatar County Court who examined the applicant's appeal were
sufficiently independent of that court's president. Therefore, the
Court considers that the applicant's fears as regards the lack of
impartiality of the Zlatar County Court were not objectively
justified.
- This
finding is further corroborated by the applicant's own behaviour. In
particular, the Court notes that the applicant did not ask for
transfer of jurisdiction while her case was pending before the Zlatar
Municipal Court, even though judge M.M. was the president of that
court for almost three years after the plaintiff had brought its
action for unjust enrichment against her, but did so only in her
appeal against the first-instance judgment. The Court finds it
difficult to reconcile such conduct with the applicant's alleged
fears concerning the lack of impartiality of the second-instance
court on account of the fact that judge M.M. was its president.
97. There has
accordingly been no violation of Article 6 § 1 of the Convention
as regards the requirement for an impartial tribunal.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The applicant complained under Article 6 § 1,
Articles 13 and 14 of the Convention and Article 1 of Protocol No. 12
thereto about the outcome of the above proceedings alleging that the
domestic courts had erred in the application of the relevant
provisions of substantive law.
- The Court notes that the applicant complained about
the outcome of the proceedings, which, unless arbitrary, the Court is
unable to examine under Article 6 § 1 of the Convention. In the
light of all the material in its possession, the Court considers that
in the present case the applicant was able to submit her
arguments before courts which addressed those arguments in
decisions that were duly reasoned and not arbitrary. The case
therefore does not disclose any appearance of a violation of Article
6 § 1 of the Convention on account of the outcome of the
proceedings or of any other Article of the Convention relied on by
the applicant.
- It
follows that these complaints are inadmissible under Article 35
§ 3 as manifestly ill-founded and must be rejected pursuant
to Article 35 § 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 75,573.68 Croatian kunas (HRK) in respect of
pecuniary damage and HRK 100,000 in respect of non-pecuniary damage.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant 400 euros (EUR) in respect of
non-pecuniary damage, plus any tax that may be chargeable on that
amount.
B. Costs and expenses
- The
applicant did not submit a claim for just satisfaction in respect of
the costs and expenses. Accordingly, the Court considers that there
is no call to award her any sum on that account.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
- Declares unanimously the complaints concerning
the excessive length of the proceedings and lack of impartiality
admissible and the remainder of the application inadmissible;
- Holds unanimously that there has been a
violation of Article 6 § 1 of the Convention on account of the
excessive length of the proceedings;
- Holds by five votes to two that there has been
no violation of Article 6 § 1 of the Convention on account of
the lack of impartiality;
- Holds unanimously
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 400 (four
hundred euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into Croatian kunas at the rate
applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 22 December 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Anatoly Kovler
Registrar President
In
accordance with Article 45 § 2 of the Convention and Rule 74 §
2 of the Rules of Court, the partly dissenting opinion of Judge
Jebens joined by Judge Spielmann is annexed to this judgment.
A.K.
S.N.
PARTLY DISSENTING OPINION OF JUDGE JEBENS JOINED BY
JUDGE SPIELMANN
- I
agree that there has been a violation of Article 6 § 1 of the
Convention on account of the excessive length of the proceedings.
However, for the reasons set out below I disagree with the majority
that there has been no violation of Article 6 § 1 on account of
the lack of impartiality of the court.
- There
exist in my opinion ascertainable facts with regard to the initial
procedure before the Zlatar County Court which may raise doubts as to
that court's impartiality in the civil case against the applicant.
The combination of these facts and the internal relationships within
the court shows in my view that the applicant's fear of the judges'
lack of impartiality was objectively justified.
- First,
it should be noted that though the President of the Zlatar County
Court, like all state officials, must report on criminal offences
which came to his knowledge, he would first have to make his own
evaluation as to the question of criminal liability. Thus, there is
an element of discretion when it comes to reporting a possible
criminal offence to the Prosecutor's office, which implies that the
President is not obliged to pass on any allegation of a criminal
offence.
- In
the present case it should be noted that the Court President had been
approached by a lawyer employed with the insurance company C. O., who
had explained the company's claim to him. The President sided with
the company's view, and filed a criminal complaint against the
applicant with the Zlatar Municipal State Attorney's Office. He
stated that the applicant had refused to return “the unlawfully
appropriated money”, and added that “for which reason the
civil proceedings ...were instituted against her”. Furthermore,
he stated that the applicant's act “also contains elements of
criminal liability”, for which reason “we are reporting
it to you with a view to investigating it and, possibly, instituting
criminal proceedings (against her)...”, see para. 9 of the
judgment.
- It
follows from this that the intervention by the President of the
Zlatar County Court was relevant for that court's adjudication of the
civil claim against the applicant in several ways. Firstly, the
President referred to, and indeed confirmed the veracity of the same
objective facts as those which were relevant in the civil case.
Secondly, he had presented arguments in support even of the
applicant's subjective liability, by stating that she was also liable
to criminal prosecution. Therefore, while the opinion expressed by
the Court President referred to the civil claim, it went beyond what
was necessary in a civil case. Thirdly, the Court President had filed
the criminal complaint at the request of the insurance company C.O.,
which was the plaintiff in the civil case against the applicant.
- In
these circumstances, I cannot see that it matters that the Court
President filed the criminal complaint against the applicant in his
official capacity, as argued by the majority, or that it is important
that he had no personal interest in the proceedings against her, see
para. 85 of the judgment. I attach more weight to the ties which
exist between the President and the judges of the same court, and in
which respect the Zlatar County Court is no exception.
- It
is of course true that the President could not instruct the judges
who participated in the civil case against the applicant on how to
vote, as stated by the majority in Para. 88 of the judgment. However,
the President was charged with administrative duties, of which some
directly affected the judges.
- One
important duty of the President was to assign cases to the judges at
the court. With respect to this the majority has stressed that the
cases were not distributed by the President at his own discretion,
and argued at length that the Court rules on this gave the President
practically no room for choice. However, I cannot accept as a fact
that the President was stripped of practically any power in this
respect, as the majority seems to suggest, see paras 89 and 90 above.
Therefore, there is in my view no reason to make a distinction
between the present case and the Daktaras case (cited above)
in this respect.
- The
Court President also had considerable influence on questions
concerning the other judges' career, whether it was advancement or
disciplinary proceedings against judges. I refer in this respect to
the facts described in detail by the majority in para. 92 of the
judgment, but disagree with the conclusion that the President's
powers “were rather limited”, see para. 93. For instance,
I cannot see that it matters much that the President's unfavourable
appraisal of a judge can be appealed against or that his opinion on
which judges should be appointed permanently and which should not is
not a final decision. The fact that the President had a strong
influence in such matters is in my opinion more important in this
respect.
- For
these reasons I conclude that the Court President's far-reaching
opinion with respect to the applicant's case deprived the other
judges in the same court of their impartiality, because of their
subordinate position and dependence of the President in different
respects. The present case should therefore have been transferred to
another court, as was done in the criminal case against the
applicant, for the same reasons, see para. 11 of the judgment, in
that the lapse of time between the President's expressed opinion and
the civil proceedings is in my opinion not relevant in this respect.
