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FIRST
SECTION
CASE OF OLUJIĆ v. CROATIA
(Application
no. 22330/05)
JUDGMENT
STRASBOURG
5 February 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 Olujić v.
Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
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 15 January 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 22330/05) 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, Mr Krunislav Olujić
(“the applicant”), on 6 June 2005.
- The
applicant was represented by Mr B. Hajduković, a lawyer
practising in Zagreb. The Croatian Government (“the
Government”) were represented by their Agent, Mrs Š.
StaZnik.
- On
20 September 2007 the President of the First Section decided to
communicate the complaints under Article 6 § 1 of the Convention
concerning the lack of fairness and public hearing, the alleged
impartiality and the length of the disciplinary proceedings against
the applicant to the Government. It was also decided to examine the
merits of the application at the same time as its admissibility
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1952 and lives in Zagreb.
A. Disciplinary proceedings against the applicant
- The
applicant was a judge and the President of the Supreme Court (Vrhovni
sud Republike Hrvatske). He was also a member of the National
Judicial Council (DrZavno sudbeno vijeće, hereinafter
the “NJC”). Sometime in 1996 the Government filed a
request with the NJC to open disciplinary proceedings against the
applicant. They alleged that from January to August 1996 the
applicant had conducted sexual relationships with minors and that
from 1995 onwards he had used his position to protect the financial
activities of two individuals who were known for their criminal
activities, and had thus caused damage to the reputation of the
judiciary, which amounted to a serious disciplinary offence. For
these reasons they proposed that disciplinary proceedings be
instituted against the applicant and that a disciplinary sanction be
imposed, including that he be permanently removed from office as a
judge and as President of the Supreme Court. Furthermore, they asked
for the applicant's immediate provisional removal from office during
the proceedings.
- On
21 November 1996 the NJC instituted disciplinary proceedings against
the applicant. On 5 December 1996 the applicant filed a motion
seeking the withdrawal from the case of three members of the NJC,
namely A.P., V.M. and M.H, on the ground that they had shown their
bias towards the applicant in interviews published in various
national newspapers. The motion was denied on 9 January 1997 as being
unfounded. At the hearing held on 9 January 1997 the NJC refused the
applicant's request that the hearings before it be public on the
ground that the exclusion of the public was necessary for the
protection of the interests of the applicant and the judiciary as
such without any further reasoning. Further hearings were held on 10,
13 and 14 January 1997. On 14 January 1997 the NJC found that
the applicant had committed a disciplinary offence in maintaining
contacts and appearing in public with B.Č. and S.Š.
despite knowing that they had been convicted of numerous crimes, and
of using his position to protect these two individuals' interests and
gains from June 1995 to November 1996. The NJC further found the
remaining allegations against the applicant unfounded and thus
requiring no disciplinary measures. It was decided to remove the
applicant from his post as judge and President of the Supreme Court.
- The
applicant's subsequent “request for protection” (zahtjev
za zaštitu) to the Parliament's Chamber of the Counties
(Zupanijski dom Sabora Republike Hrvatske) was dismissed on 19
February 1997. On 21 March 1997 the applicant lodged a constitutional
complaint in which he maintained that the proceedings had been unfair
and that his right to respect for his correspondence had been
infringed.
- On
17 April 1998 the Constitutional Court quashed the decision of NJC of
14 January 1997 as well as the decision of the Chamber of Counties of
19 February 1997. The Constitutional Court found that the
disciplinary proceedings before the NJC had been defective because
some of the evidence presented in the proceedings, such as audio
recordings of intercepted telephone calls and testimony by a member
of the NJC who sat on the Council panel which considered the
applicant's case, had not been obtained in accordance with the law.
The case was remitted to the NJC.
- In
the resumed proceedings the first hearing was held on 23 September
1998. The applicant filed a motion seeking the withdrawal from the
case of four members of the NJC, namely A.P., V.M., M.H., and I.M.,
alleging that they had failed to show impartiality in statements to
the press. The NJC declared inadmissible the request for I.M.'s
withdrawal, since he had already withdrawn from the proceedings. The
request for the withdrawal of A.P., V.M. and M.H. was dismissed
without any further reasoning.
- The
applicant further requested that the proceedings be public. The
request was denied. The relevant part of the transcript from the
hearing reads as follows:
“The President of the Council informs those
present that the public shall be excluded from the disciplinary
proceedings because it has not been decided that the proceedings
shall be public pursuant to section 28 paragraphs 1 and 3 of the
National Judicial Council Act.
Defence counsel I.K. requests that the disciplinary
proceedings be public, justifying the request by the gravity of the
case, the general public interest, the importance of the proceedings
and the need to protect the defendant's rights.
Defence counsel M.S. supports the request and adds that
the right to a public hearing is the basic principle of criminal
procedure and that the NJC's decision to exclude the public would be
an attack on that right and would breach the fairness of the
proceedings. If, however, the Council decides to exclude the public
from the proceedings, he requests that the OSCE and UNHCR
representatives who are waiting outside the courtroom be allowed to
attend the hearings.
Counsel for the Government M.K. leaves the decision to
the Council and adds that he is not opposed to the exclusion of the
public from these proceedings.
...
The Council announces its
D E C I S I O N
The request filed by
Dr Krunoslav Olujić that the disciplinary proceedings against
him be public shall be dismissed on the grounds of protection of the
defendant and of the judiciary as such”
- Counsel
for the Government dropped all charges against the applicant save for
those alleging that in the period from June 1995 to the beginning of
November 1996 he had continually socialised in public places with two
individuals, B.Č. and S.Š., who had a criminal
background. Counsel asked the NJC to call five witnesses on behalf of
the Government in order to prove their case, without further
explanations. The NJC allowed that four of those witnesses be called
and also ordered that three further witnesses be called ex
officio. The applicant and his counsels at that time had not
asked that any witnesses be called.
- The
second hearing in the resumed proceedings before the NJC took place
on 1 October 1998. The NJC allowed a representative of the UNHCR and
a representative of the OSCE to be present at the hearing. All
present were warned, under threat of criminal sanctions, that they
were obliged to keep secret all that they learned at the hearing.
- The
NJC heard evidence from seven witnesses, including S.Š. and
B.Č., all of whom called on behalf of the Government. The
evidence showed that the applicant had occasionally been seen in the
company of S.Š. in Umag, where the applicant had a flat and
was spending some of his holidays, and in the company of B.Č. in
Osijek, the applicant's hometown. Both S.Š. and B.Č.
stated that they had not been the applicant's friends, that they had
no close contacts with the applicant and that they had occasionally
been in the same company as the applicant, but always in public
places and always in the company of other persons.
- Counsel
for the Government nominated another witness to give evidence about
the applicant's contacts with B.Č. in Osijek. The NJC accepted
that proposal. As to the evidence relied on by the applicant, the
transcript of the hearing reads:
“Dr Krunoslav Olujić submits a written list
of witnesses to be called on his behalf.
... [the defence counsel states as follows]:
'We call witnesses [from the list of evidence] to prove
to the Council that in the material period Dr Olujić was indeed
occasionally in the company of the persons with the alleged 'criminal
background', but that each time, without exception, they were
together with a large number of persons. Furthermore, S.Š. was
present only in his capacity as the owner of a restaurant and it was
natural that as such he was occasionally present in the same company
as Dr Olujić. We call further witnesses who were often in the
company of Dr Olujić in Osijek when B.Č. would occasionally
join them. Our aim is to show the true nature of the allegation [that
the applicant] “had socialised” and “had been in
the company of ... in public places” ...'
...
The defence counsel also asks that further witnesses,
mentioned in the enclosed decision of the Umag Minor-Offences Court,
be called
...
The Council announces its
D E C I S I O N
...
All proposals of the defendant Dr Olujić are
dismissed as unimportant, since the circumstances to which the
evidence in question refers have either already been established or
are of no importance for the decision.”
- The
last hearing in the applicant's case before the NJC was held on
7 October 1998. The NJC allowed a representative of the UNHCR
and a representative of the OSCE and an interpreter to be present at
the hearing. All present were again warned, under threat of criminal
sanctions, that they were obliged to keep secret all that they
learned at the hearing.
- The
NJC heard evidence from a further witness, called on behalf of the
Government. It also heard the applicant, who stated that the
proceedings against him had been politically motivated because of his
opposition to the State's senior officials with regard to the concept
of the judiciary. He also stated that on 11 October 1996 he had been
asked to resign from the office of President of the Supreme Court and
offered a post as an Ambassador, which he had refused. As to the
allegations against him, he stated that he had occasionally been in
the company of the two individuals concerned but that these meetings
had always been in public and in the presence of various other
persons, and that the individuals in question had not been his
friends. The relevant part of his statement reads:
“... as a high State official aware of my position
and the responsibilities I bear, I cannot and will not accept a
demand ... asking me to forsake two persons whom I knew before I was
appointed to a position of responsibility in the Republic of Croatia.
However, my acquaintanceship and relationship with them, irrespective
of their past, never went beyond the boundaries of what was
acceptable or would have made them questionable from the legal or
moral standpoint.”
- The
defence asked that three further witnesses be heard concerning the
facts of the case, which was denied.
- In
its decision of 7 October 1998 the NJC established that the applicant
had committed a disciplinary offence in that he had maintained
contacts and socialised in public places with two individuals who had
a criminal background, a behaviour which had harmed the reputation of
the judiciary and was contrary to his judicial duty. He was dismissed
from the office of judge and from that of President of the Supreme
Court. The relevant part of the decision reads:
“Dr Krunoslav Olujić ... bears disciplinary
responsibility
in that he
from June 1995 to the beginning of November 1996, while
holding the post of the President and a judge of the Supreme Court of
the Republic of Croatia, maintained contacts and appeared in public
in Osijek and Umag with B.Č. and S.Š. although he had
known that they had been known as delinquents
...
As to the exclusion of the public, the Council held as
follows:
“Under section 28 paragraph 3 of the National
Judicial Council Act, disciplinary proceedings are in principle
secret. Bearing in mind the nature of the disciplinary offence [in
question] and the information in the case file, the Council has
dismissed the defendant's request that the proceedings be public, in
order to protect the defendant's dignity and the dignity of the
judiciary as such. Pursuant to Article 294 paragraph 2 of the Code of
Criminal Procedure, in conjunction with section 28 paragraph 1 of the
National Judicial Council Act, the Council has allowed the presence
of B.Š., employee of the UNHCR [United Nations High
Commissioner for Refugees] at the hearings held on 1 and 7 October
1998, A.M.M., counsel for human rights at the OSCE [Organisation for
Security and Co-operation in Europe] at the hearing held on 1 October
1998, and R.B., member of the OSCE mission to Croatia and his
interpreter M.R. at the hearing held on 7 October 1998.”
On 10
November 1998 the Chamber of the Counties upheld the decision.
- In
his subsequent constitutional complaint of 2 December 1998, the
applicant complained, inter alia, about the exclusion of the
public from the disciplinary proceedings against him. He also alleged
that three members of the National Judicial Council, namely A.P.,
V.M. and M.H., had been partial. He further complained that no
witness called on behalf of the defence had been heard in the
proceedings. On 9 December 2004 the Constitutional Court (Ustavni
sud Republike Hrvatske) dismissed the applicant's complaint as
ill-founded.
B. The statements concerning the applicant's case made
in the media by three members of the National Judicial Council
- On
10 February 1997 an interview with V.M., a member of the NJC, was
published in the national daily newspaper “Večernji
list”. It was entitled “Olujić was a partisan
candidate, not me”, and the relevant parts of the interview
read as follows:
“In the case at issue the NJC established that for
a long period of time Dr Olujić had had frequent public social
contacts with two persons who not only had been convicted of numerous
criminal offences, but against whom criminal proceedings are
currently pending - in one case for assault on a policeman, and in
the other for the trade of 1.5 kg of heroin - and that he had
even intervened on their behalf. Dr Olujić was acquitted of all
the other charges. All this harangue against the members of the NJC,
and Dr Olujić's defence, are focussed on the part [of the
charges] of which he was acquitted, so now many persons are unhappy
because it does not fit into what [the defence] presented. The
[charges] for which Dr Olujić was found liable are clear on the
facts. What is disputed is whether this amounts to a serious
disciplinary offence and, if it does, which sanction is to be
applied.
...
I joined Dr. Olujić's request [for my withdrawal]
because I publicly voted against his appointment as President of the
Supreme Court, and I was also mentioned as a candidate for the post
of President of the Supreme Court ...
... In the case at issue, telephone conversations were
not a basis for the conviction because they concerned the part of the
[charges] for which Dr. Olujić was acquitted. Therefore, all
attempts to present the NJC's decision as contrary to law have
failed. All the evidence called by the defence referred to the
[charges] of which he was acquitted, and it was therefore dismissed
as unnecessary.”
- On
28 March 1997 an interview with A.P., the then president of the
National Judicial Council, entitled “Judges are appointed, but
also created” was published in the same daily newspaper. The
relevant parts of the interview read:
Question: “-The National Judicial Council has
lately been mentioned in public mostly in connection with the 'Olujić
case'. What is the truth about the former Supreme Court President?
Answer: - The decision has been taken and reasons have
been given in it. I don't think that I have to explain a reasoned
decision, everything was said in it. For me these proceedings are in
the past.
Q: - However, for the sake of the public, which has
received conflicting information about this case, could you be more
specific?
A: - Since you insist, I shall just say that Dr
Krunoslav Olujić has committed a disciplinary offence not only
by “socialising” with perpetrators of numerous criminal
offences, although this in itself is a serious matter for any
president of the Supreme Court, but primarily because, while
President of the Supreme Court, and aware of these individuals'
criminal activity, that is, that they belonged to the international
criminal milieu, he used his personal influence and contacts in order
to protect their interests and gains. Analysis of the evidence and
defence [pleadings] clearly showed that the Government's request to
institute proceedings had in no way been politically motivated or a
fabricated indictment put forward by the political and partisan
elite, as Dr Krunoslav Olujić stated in his defence and alleged
before the media, referring to the President of the Republic and the
Government. On the contrary, the case is about indecent activities
which are incompatible not only with the office of Supreme Court
President, which Dr Krunoslav Olujić held for a short period,
but with judicial ethics in general.
Q: - And what about the interception of telephone calls?
A: - The interception of telephone conversations
concerned legally recorded telephone conversations between the
above-mentioned perpetrators of numerous criminal offences, but not
at all Dr Olujić's telephone conversations. [Olujić] “was
netted” by this operative measure, as one of the witnesses
expressed it illustratively. The [National Judicial] Council assessed
that evidence, together with all the other evidence, in line with the
principle of free assessment of evidence, and it did not
significantly influence its decision.”
- On
22 September 1997 another national daily newspaper, “Slobodna
Dalmacija”, published an interview with M.H., a member of
the NJC and the then State Attorney. The relevant parts of the
interview read:
“With regard to the statements about a lack of
independence on my part and my reliance on Mr Šeks [president
of Parliament], which were published in the weekly newspaper
'Tjednik,' in an article by journalist S. P., whose hand was
guided by a gentleman whose career in the judiciary ended shamefully,
I see them mostly as comical, as I do the author himself. These
fabricated and unsupported statements, coming from a man who held a
number of highly responsible functions in the Croatian judiciary,
where, due to his lack of experience and knowledge, he was a corpus
alienum (a foreign body), do not really deserve special attention
because they belong to the place from which they originate, namely,
the coffee-bars.”
II. RELEVANT DOMESTIC LAW
- The
relevant part of the Constitutional Act on the Constitutional Court
(Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official
Gazette no. 13/1991), as in force at the material time, provided that
everyone could lodge a constitutional complaint with the
Constitutional Court if they considered that a judicial or
administrative decision, or a decision of a legal entity invested
with public authority, had violated their human rights or fundamental
freedoms guaranteed by the Constitution (section 28). If the
Constitutional Court allowed a constitutional complaint, it had to
quash the impugned decision and remit the case to the competent
authority for a new decision (section 30).
- The
relevant provisions of the National Judicial Council Act, as in force
at the material time (Zakon o DrZavnom sudbenom vijeću,
Official Gazette no. 58/1993) provide:
Section 3
“The candidates for the [post of] President and
members of the Council shall be nominated by the Chamber of the
Counties of the Croatian Parliament.
Prior to the nomination of candidates, the Chamber of
the Counties shall ask the Supreme Court, Minister of Justice, State
Attorney, Croatian Bar Association and law faculties to draw up a
list of suitable candidates.
...”
Section 4
“The president and the members of the Council
shall be elected by the Chamber of Representatives for a period of
eight years from the ranks of notable judges, state attorneys,
attorneys at law and law university professors having, in principle,
at least fifteen years of experience.
The President and seven members of the Council shall be
chosen from among the judges, four members from among the state
attorneys and their deputies, one member from the attorneys at law
and two members from the law professors.
The President and members [of the Council] shall not be
members of Parliament.”
Section 7
“Before taking up office the President and each
member of the Council shall take [the following] oath before the
President of Parliament:
'I swear on my honour that I will exercise my functions
as the President and member of the National Judicial Council
diligently and in accordance with the Constitution and the laws of
the Republic of Croatia.”
Section 8
“The President and the members of the Council
shall enjoy immunity.
The President or members of the Council shall not be
held responsible for words spoken or votes cast [in the debates of]
the Council.
The President or members of the Council shall not be
subjected to arrest or criminal proceedings without the Council's
permission.
The President or members of the Council may be detained
without the Council's permission only if found perpetrating a
criminal offence punishable by a prison term of more than five years.
In such cases the body which has detained the President or a member
of the Council shall promptly inform the Council.
...”
Section 9
“...
The President or a member of the Council may be
dismissed from his or her office before expiration of the term of
office [for the following reasons]:
- if he or she resigns;
- if sentenced to imprisonment;
- if he or she permanently loses capacity to exercise
his or her functions;
- if he or she accepts citizenship of another State.
The reasons for dismissal of the President or a member
of the Council shall be established by the Parliament's Chamber of
Counties. The decision on dismissal shall be taken by the
Parliament's Chamber of Representatives.”
Section 10
“...
An application for establishing permanent inability of a
member of the Council to perform his or her function shall be lodged
with the Parliament's Chamber of Counties by the President of the
Council. Such an application in respect of the President of the
Council shall be lodged by at least five members of the Council.
...”
Section 12
“The Council shall have competence in respect of:
- appointments of the presidents of courts, judges and
state attorneys and their deputies;
- conduct of the proceedings and decisions on dismissal
of presidents of courts and judges and on dismissal of state
attorneys and their deputies.”
Section 20
“The President of a court or a judge shall be
subject of disciplinary liability when he or she commits a grave
disciplinary offence.
Grave disciplinary offences are:
...
6. causing harm to the reputation of the judiciary or to
judicial duty.”
Section 25
“For a grave disciplinary offence one of the
following measures may be imposed:
...
3. dismissal from office.
...”
Section 26
“A president of a court or a judge punished for a
disciplinary offence shall be entitled to lodge a request for
protection against the Council's decision with the Chamber of the
Counties within 15 days after the Council's decision is served on him
or her.
The Chamber of the Counties shall uphold the decision on
dismissal [from office] or quash it and remit the case to the Council
for fresh proceedings and decision.
Where [the Council's] decision is quashed the statutory
time limits begin anew. There is no judicial review of the decision
of the Chamber of the Counties.”
Section 28
“Proceedings [before the Council] shall be
conducted in accordance with the provisions of the Code of Criminal
Procedure, if not otherwise provided in this Act.
... The Council may decide that the disciplinary
proceedings shall be public.”
Section 40
”Resources for the functioning of the Council are
secured in the State budget.
The President of the Council shall coordinate
implementation of the financial plan for the resources referred to in
paragraph one of this section.”
Section 41
“For their functions the President and the members
of the Council are entitled to the compensation of costs, expenses
and lost earnings, and to remuneration.”
- Pursuant
to Article 430 of the Code of Criminal Procedure (Official Gazette
nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002 and
62/2003), where the defendant requests an amendment of a final
judgment following a finding of a violation of, inter alia,
the right to a fair trial, by the European Court of Human Rights, the
rules governing a retrial shall apply.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant made the following complaints under Article 6 § 1 of
the Convention: that three members of the National Judicial Council
had not been impartial; that the exclusion of the public from the
proceedings had not been justified; that the disciplinary proceedings
against him had been unfair; and that the length of proceedings had
exceeded the reasonable time requirement. The relevant part of
Article 6 § 1 of the Convention provides:
“1. In the determination of his civil
rights and obligations or of any criminal charge against him,
everyone is entitled to a fair and public hearing within a reasonable
time by an independent and impartial tribunal established by law.
Judgment shall be pronounced publicly but the press and public may be
excluded from all or part of the trial in the interests of morals,
public order or national security in a democratic society, where the
interests of juveniles or the protection of the private life of the
parties so require, or to the extent strictly necessary in the
opinion of the court in special circumstances where publicity would
prejudice the interests of justice.
A. Admissibility
The parties' arguments
- The
Government argued that Article 6 was not applicable in the present
case under either its civil or criminal head. As to the civil aspect,
relying on the Court's reasoning in its Harabin decision (Harabin
v. Slovakia (dec.), no. 62584/00, 9 July 2002), they maintained
that the applicant's post as the President of the Supreme Court had
involved by its very nature the exercise of powers conferred by
public law and duties designed to safeguard the general interests of
the State. They further argued that there were no common criteria for
the appointment and dismissal of a president of a highest court among
the member States. This was a question that interfered with the
State's sovereign powers and had therefore to be excluded from the
scope of the Convention.
- As
to the criminal aspect, the Government submitted that the proceedings
at issue were of a disciplinary nature. As regards their
classification in the domestic law, the nature of the offence in
question and the nature and level of severity of the sanctions
prescribed, they did not satisfy the criteria to be seen as
proceedings involving the determination of a criminal charge against
the applicant.
-
The Government further argued that the applicant had not been
entitled to access to a court, since section 26 § 3 of the
National Judicial Council Act expressly excluded judicial protection
in connection with disciplinary proceedings against judges. However,
they agreed that the National Judicial Council itself satisfied all
criteria to be regarded as a tribunal within the meaning of Article 6
§ 1 of the Convention.
- The
applicant made no comments in this respect.
The Court's assessment
- The
Court firstly takes cognisance of the Government's argument
concerning the nature of the office as President of the Supreme
Court. However, the Court notes that in the proceedings at issue the
applicant was not only removed from his office as President of the
Supreme Court, but was at the same time dismissed from his post as a
judge of the Supreme Court. In these circumstances, for the purposes
of determining whether Article 6 applies to the proceedings at issue,
the Court considers irrelevant the nature of the applicant's position
as the President of the Supreme Court.
-
As to the applicability of Article 6 § 1 of the Convention to
the proceedings at issue, the Court first refers to the Pellegrin
v. France judgment (no. 28541/95, 8 December 1999, §§
64-71), in which the Court stated that employment disputes between
the authorities and public servants whose duties typified the
specific activities of the public service, in so far as the latter
was acting as the depositary of public authority responsible for
protecting the general interests of the State, were not “civil”
and were excluded from the scope of Article 6 § 1 of the
Convention. The Court noted that the manifest example of such
activities was provided by the armed forces and the police.
Furthermore, as to the proceedings concerning dismissal of a judge in
its Pitkevich decision on admissibility (see Pitkevich v. Russia
(dec.), no. 47936, 8 February 2001) the Court found that the
judiciary, while not being part of the ordinary civil service, was
nonetheless part of typical public service. A judge had specific
responsibilities in the field of administration of justice, which was
a sphere in which States exercised sovereign powers. Consequently, a
judge participated directly in the exercise of powers conferred by
public law and performed duties designed to safeguard the general
interests of the State. The Court concluded that the dispute
concerning the dismissal of a judge did not concern her “civil”
rights or obligations within the meaning of Article 6 of the
Convention.
- However,
in its recent judgment in the
Eskelinen case (see Vilho
Eskelinen
and Others v. Finland ([GC],
no. 63235/00, 19 April 2007), the Court found that the
functional criterion adopted in the
Pellegrin judgment
had not simplified the analysis of the applicability of Article 6 in
proceedings to which a civil servant was a party or brought about a
greater degree of certainty in this area, as had been intended (§
55). For these reasons the Court decided to develop further the
functional criterion set out in the Pellegrin
judgment and
adopted the following approach (see Vilho Eskelinen and
Others v. Finland, cited above, §§ 61 and
62):
“The Court recognises the State's interest in
controlling access to a court when it comes to certain categories of
staff. However, it is primarily for the Contracting States, in
particular the competent national legislature, not the Court, to
identify expressly those areas of public service involving the
exercise of the discretionary powers intrinsic to State sovereignty
where the interests of the individual must give way. The Court exerts
its supervisory role subject to the principle of subsidiarity (see Z
and Others v. the United Kingdom [GC], no. 29392/95, § 103,
ECHR 2001-V). If a domestic system bars access to a court, the Court
will verify that the dispute is indeed such as to justify the
application of the exception to the guarantees of Article 6. If it
does not, then there is no issue and Article 6 § 1 will apply.
...
To recapitulate, in order for the respondent State to be
able to rely before the Court on the applicant's status as a civil
servant in excluding the protection embodied in Article 6, two
conditions must be fulfilled. Firstly, the State in its national law
must have expressly excluded access to a court for the post or
category of staff in question. Secondly, the exclusion must be
justified on objective grounds in the State's interest.”
- Thus,
the Eskelinen judgment, which intended that a presumption of Article
6 protection should exist, imposes a wider applicability than the
Court's previous case-law. It also encompasses cases of dismissal,
unless the domestic system excludes access to court in that respect.
Article 6 does not apply only to cases where domestic law expressly
excludes access to a court for the category of staff in question, and
where this exclusion is justified by the State's objective interest.
- As
to the present case, the Court firstly notes that section 26 § 3
of the National Judicial Council Act expressly excludes judicial
protection in connection with disciplinary proceedings against
judges.
- However,
the scope of this exclusion is not absolute, since it refers only to
the exclusion of protection before the ordinary courts. The Court
notes that the applicant was able to file a constitutional complaint
against the decisions of the National Judicial Council and the
Chamber of the Counties. The applicant submitted the same complaints
that he is now presenting before the Court to the Constitutional
Court, and that court examined the merits of those complaints. Had
the Constitutional Court accepted the applicant's complaints it would
have quashed the impugned decisions and remitted the case to the
National Judicial Council for fresh proceedings.
- Against
this background, the Court considers that the scope of the
Constitutional Court's review in the present case, and its powers as
to the impugned decisions, appear to provide the applicant with
access to a court under the domestic system, in satisfaction of the
Eskelinen test. Furthermore, as admitted by the Government, the
National Judicial Council itself satisfies the criteria under Article
6 § 1 of the Convention to be regarded as an independent and
impartial tribunal established by law. The Court reiterates that for
the purposes of Article 6 § 1 of the Convention a tribunal need
not be a court of law integrated with the standard judicial machinery
(see Rolf Gustafson v. Sweden, 1 July 1997, § 45,
Reports of Judgments and Decisions 1997 IV) since a
tribunal, within the meaning of Article 6 § 1, is characterised
in the substantive sense of the term by its judicial function, that
is to say, the determining of matters within its competence on the
basis of rules of law and after proceedings conducted in a prescribed
manner (see Philis, cited above, § 50). It must also
satisfy a series of requirements – independence, in particular
of the executive, impartiality and guarantees afforded by its
procedure – several of which appear in the text of Article 6 §
1 itself (see Zlinsat, spol. s.r.o., v. Bulgaria, no.
57785/00, § 75, 15 June 2006).
- In
order to establish whether a body can be considered independent,
regard must be had, inter alia, to the manner of appointment
of its members and to their term of office, to the existence of
guarantees against outside pressures and to the question whether the
body presents an appearance of independence (see, inter alia,
Langborger v. Sweden, 22 June 1989, § 32, Series A no.
155, and Bryan v. the United Kingdom, 22 November 1995, § 37,
Series A no. 335 A). Furthermore, the tribunal in
question must have jurisdiction to examine all questions of fact and
law relevant to the dispute before it (see Terra Woningen B.V. v.
the Netherlands, 17 December 1996, § 52, Reports
1996-VI; Chevrol v. France [GC], no. 49636/99, § 77, ECHR
2003-III; and I.D. v. Bulgaria, no. 43578/98, § 45,
28 April 2005).
- The
Court notes that the National Judicial Council is established by law,
namely the 1993 National Judicial Council Act with further
amendments, all of which were enacted by Parliament in a standard
legislative procedure. This Act governs the appointment of the NJC
members, their immunities, dismissal, the scope of their functions,
the procedures to be followed and all other questions relevant to the
functioning of the NJC.
- As
to the NJC's independence, the Court notes that the resources for its
functioning are secured in the State Budget and allocated by
Parliament. Distribution of these resources is in the hands of the
President of the NJC. It is independent of the executive and its
members are not bound by any instruction in the exercise of their
functions. They are appointed by Parliament for an eight-year term of
office and enjoy the same immunities as judges. They are elected from
among the members of the judiciary, the State Attorney's Office, the
Croatian Bar Association and law professors, and are all to be
persons of high standing. They act in their personal capacity and do
not take orders in the exercise of their powers, and swear an oath
that they will abide by the Constitution and the laws. They can be
dismissed by Parliament only for the reasons specifically enumerated
in the National Judicial Council Act and in compliance with the
procedure prescribed by that Act.
- As
to proceedings before the National Judicial Council, the Court notes
that they follow the rules of criminal procedure set out in detail in
the Code of Criminal Procedure; these include, inter alia, all
the guarantees provided by Article 6 of the Convention and enable the
accused to submit his or her defence. When ruling in disciplinary
proceedings against judges, the National Judicial Council is
empowered to establish the facts of a given case, hold hearings, hear
witnesses and assess other evidence and decide on all questions of
fact and law.
- In
the applicant's case, the National Judicial Council thus exercised
judicial powers in determining his disciplinary responsibility.
Against this background, the Court considers that the National
Judicial Council is to be regarded as an independent tribunal
established by law for the purposes of Article 6 of the Convention
and that therefore the disciplinary proceedings against the applicant
were conducted before a tribunal for the purposes of Article 6 §
1 of the Convention.
- It
follows that the applicant had access to a court and that Article 6
is applicable both to the disciplinary proceedings against the
applicant before the National Judicial Council and the proceedings
following from the applicant's constitutional complaint.
Conclusion
- In conclusion, the Court finds that Article 6 applies
under its civil head to the disciplinary proceedings against the
applicant, including the proceedings following from his
constitutional complaint.
- The
Court finds that this part of the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further finds that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
Scope of the case before the Court
- The
Court notes that the disciplinary proceedings against the applicant
were instituted sometime in 1996, on allegations of having conducted
sexual relationships with minors and of using his position to protect
the financial activities of two individuals known for their criminal
activities. On 14 January 1997 the National Judicial Council
found it established that the applicant had indeed used his position
in an improper way and this decision was upheld by the Parliament's
Chamber of Counties on 19 February 1997. However, both these
decisions were quashed by the Constitutional Court on 17 April 1998
and the case was sent back to the National Judicial Council for fresh
examination.
- In
the resumed proceedings before the National Judicial Council, on 23
September 1998 the allegations against the applicant were reduced to
stating that in the period from June 1995 to the beginning of
November 1996 he had continually socialised in public places with two
individuals, B.Č. and S.Š., who had a criminal
background. On 7 October 1998 the National Judicial Council found
this established and this decision was upheld by the Chamber of
Counties on 10 November 1998 and the Constitutional Court on 9
December 2004. Due to this the applicant was dismissed from office.
- Since
the initial proceedings were found to be defective and therefore
invalidated by the Constitutional Court, the applicant's complaints
with regard to their fairness cannot be subject to examination by the
Court. It follows that the Court must examine the alleged
deficiencies only in respect of various aspects of the fairness of
the proceedings conducted after the Constitutional Court's decision
of 17 April 1998, when it quashed the decisions hitherto adopted in
the disciplinary proceedings against the applicant and remitted the
case for fresh examination.
- As
regards the applicant's complaint about the length of proceedings,
however, the Court is called to examine the proceedings as a whole.
The parties' arguments
- The
applicant maintained that three members of the National Judicial
Council had expressed bias against him in the interviews published in
the national newspapers at a time when the disciplinary proceedings
against him had not yet been concluded. Although the NJC had already
adopted its first decision when the interviews in question were
published, that decision had subsequently been quashed by the
Constitutional Court and in the resumed proceedings before the NJC
all three of the members in question had again participated.
- He
further argued that there had been no good reason to exclude the
public from the hearings before the NJC and that no adequate
reasoning had been given for that decision. Furthermore, the
proceedings had been unfair because none of the witnesses called on
his behalf had been admitted to testify before the NJC. Lastly, he
argued that the proceedings had also exceeded the reasonable-time
requirement.
- As
regards the impartiality of the three members of the NJC, the
Government submitted that the proceedings in question concerned a
situation where a body decided on the disciplinary liability of one
of its own members, in that the applicant, as President of the
Supreme Court, had also been a member of the NJC. In these
circumstances it was impossible to ensure absolute subjective
impartiality since interactions between the applicant and the other
members of the NJC had been unavoidable. As to the applicant's
allegations regarding the interviews given by the three members of
the NJC in national newspapers, the Government argued that the
applicant had sought the withdrawal of those members even before
publication of the interviews with them. This showed that the
applicant's negative attitude towards them was of a personal nature.
- The
Government also maintained that the public was, in principle,
excluded from hearings held in disciplinary proceedings against any
high-ranking State official. Furthermore, the NJC had decided not to
make an exception from that principle in the proceedings against the
applicant, on the ground that the exclusion of the public had been
necessary for the protection of the applicant and the judiciary as
such; in the Government's view, those reasons were justified and
compatible with the requirements of Article 6. In addition, the
public had not been completely excluded, since the NJC had allowed
representatives of international organisations for the protection of
human rights to be present at the oral hearings.
- The
Government also argued that the length of the proceedings had
complied with the reasonable-time requirement. They submitted that in
1999 almost the entire composition of the Constitutional Court had
been changed, which had resulted in the nomination of a new judge
rapporteur in the applicant's case. Furthermore, the proceedings had
been complex, since they concerned the removal from office of the
President of the Supreme Court.
The Court's assessment
- The
Court notes at the outset that the applicant made several different
complaints under Article 6 § 1 of the Convention. The Court will
proceed with the examination of each of these complaints separately.
Impartiality of the three members of the National
Judicial Council
- In
assessing whether the three members of the National Judicial Council,
namely M.V., A.P. and M.H., were impartial as required under Article
6 § 1 of the Convention, the Court will consider the following
principles as they appear in its settled case-law.
- First
and foremost, it is of fundamental importance in a democratic society
that the courts inspire confidence in the public and above all, as
far as criminal proceedings are concerned, in the accused (see
Padovani v. Italy, 26 February 1993, § 27, Series A no.
257-B). To that end Article 6 requires a tribunal falling within its
scope to be impartial. Impartiality normally denotes absence of
prejudice or bias and its existence can be tested in various ways.
The Court has thus distinguished between a subjective approach, that
is endeavouring to ascertain the personal conviction or interest of a
given judge in a particular case, and an objective approach, that is
determining whether he or she offered sufficient guarantees to
exclude any legitimate doubt in this respect (see Piersack
v. Belgium, 1 October 1982, § 30, Series A
no. 53, and Grieves v. the United Kingdom [GC],
no. 57067/00, § 69, ECHR 2003-XII).
- In
applying the subjective test the Court has consistently held that the
personal impartiality of a judge must be presumed until there is
proof to the contrary (see Hauschildt v. Denmark, 24 May 1989,
§ 47, Series A no. 154). As regards the type of proof
required, the Court has, for example, sought to ascertain whether a
judge has displayed hostility or ill-will or has arranged to have a
case assigned to himself for personal reasons (see De Cubber,
cited above, § 25). The principle that a tribunal shall be
presumed to be free of personal prejudice or partiality is long
established in the case-law of the Court (see, for example, the
Le Compte, Van Leuven and De Meyere v. Belgium judgment
cited above, § 58). Although in some cases it may be
difficult to procure evidence with which to rebut the presumption, it
must be remembered that the requirement of objective impartiality
provides a further important guarantee (see Pullar v. the United
Kingdom, 10 June 1996, § 32, Reports 1996-III). In
other words, the Court has recognised the difficulty of establishing
a breach of Article 6 on account of subjective partiality and for
this reason has in the vast majority of cases raising impartiality
issues focused on the objective test. However, there is no watertight
division between the two notions, since the conduct of a judge may
not only prompt objectively held misgivings as to impartiality from
the point of view of the external observer (objective test), but may
also go to the issue of his or her personal conviction (subjective
test) (see Kyprianou v. Cyprus [GC], no. 73797/01, § 119,
ECHR 2005 ...).
- The
Court has held for instance that the judicial authorities are
required to exercise maximum discretion with regard to the cases with
which they deal in order to preserve their image as impartial judges.
That discretion should dissuade them from making use of the press,
even when provoked. It is the higher demands of justice and the
elevated nature of judicial office which impose that duty (see
Buscemi v. Italy, no. 29569/95, § 67, ECHR 1999-VI).
Thus, where a court president publicly used expressions which implied
that he had already formed an unfavourable view of the applicant's
case before presiding over the court that had to decide it, his
statements were such as to justify objectively the accused's fears as
to his impartiality (see Buscemi v. Italy, cited above, §
68). On the other hand, in another case, where a judge engaged in
public criticism of the defence and publicly expressed surprise that
the accused had pleaded not guilty, the Court approached the matter
on the basis of the subjective test (see Lavents v. Latvia,
no. 58442/00, §§ 118 and 119, 28 November 2002).
- In
applying the objective test the Court also gives importance to
situations of a personal character and considers the conduct of the
judges in a given case. In terms of the objective test, such conduct
may be sufficient to ground legitimate and objectively justified
apprehensions as in the above-mentioned Buscemi case, but it
may also be of such a nature as to raise an issue under the
subjective test (as, for example, in the Lavents case, cited
above) and even disclose personal bias. In this context, therefore,
whether a case falls to be dealt with under one test or the other, or
both, will depend on the particular facts of the contested conduct.
- The
Court notes that the applicant in the present case challenges the
impartiality of three members of the National Judicial Council on the
ground that during the disciplinary proceedings against him they gave
interviews, published in two different national newspapers,
expressing bias against the applicant. The Court shall now proceed by
examining separately the allegations of the lack of impartiality of
each of the persons concerned.
- As
regards V.M., the Court notes that an interview with him was
published in a national daily newspaper on 10 February 1997, when the
case was pending before the Chamber of Counties. At that time the
National Judicial Council had already held against the applicant on
some of the initial allegations against him. However, since the
applicant had lodged a request for protection the case was not
finally decided. The Court further notes that in the interview V.M.
himself stated that he had joined the applicant's request for his
withdrawal from the case, since he had publicly voted against the
applicant's appointment as President of the Supreme Court and had
himself been mentioned as a potential candidate for that post at the
same time as the applicant. He also commented on the results of the
proceedings by stating that “the charges for which Dr. Olujić
was found liable are clear on the facts.” V.M. further
expressed negative views on the applicant's defence in the
proceedings.
- The
Court places strong emphasis on the fact that V.M. himself considered
that he should have withdrawn from the case and gave convincing
reasons for that view. Leaving aside the question of V.M.'s
subjective impartiality, the Court reiterates that, in respect of the
question of objective impartiality 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). The
fact that V.M. publicly revealed that he had voted against the
applicant's appointment, taken together with the fact that he himself
had been a potential candidate for the same post at the time that the
applicant was appointed, created, in the Court's view, a situation
which was capable of raising legitimate doubts as to V.M.'s
impartiality.
- As
regards A.P., the then President of the National Judicial Council,
the Court notes that an interview with him was published in the same
daily newspaper on 28 March 1997, when the case was pending before
the Constitutional Court, and thus had not yet been finally decided.
In the interview he stated that the applicant had committed indecent
activities, in that he had used his personal influence and contacts
in order to protect the interests and gains of two persons with a
criminal background. He also commented that the defence's allegations
that the case was politically motivated were untrue.
- The
Court considers that the fact that the President of the National
Judicial Council publicly used expressions which implied that he had
already formed an unfavourable view of the applicant's case before
that case had been finally decided and criticised statements by the
defence appears clearly incompatible with his further participation
in the resumed proceedings after the Constitutional Court had quashed
the NJC's initial decision. The statements made by the President of
the NJC were such as to objectively justify the applicant's fears as
to his impartiality (see Buscemi v. Italy, no. 29569/95,
§ 68, ECHR 1999 VI).
- As
regards M.H., the Court notes that an interview with him was
published in another national daily newspaper on 22 September 1997,
when the case was pending before the Constitutional Court, and thus
had not yet been finally concluded. In the interview he stated that
he viewed the applicant and his statements about his (M.H.'s) lack of
independence as comical. He described the applicant as a person
lacking experience and knowledge, and as a corpus alienum (a
foreign body) in the Croatian judiciary.
- The
Court considers that the expressions used by M.H. clearly showed his
bias against the applicant and that therefore his further
participation in the proceedings after the publication of the
interview at issue was incompatible with the requirement of
impartiality under Article 6 § 1 of the Convention.
- In
conclusion, there has been a violation of Article 6 § 1 of the
Convention on account of the lack of impartiality of the President
and two other members of the National Judicial Council.
Right to a public hearing
- The Court firstly observes that as a rule, pursuant to
Section 28 § 2 of the National Judicial Council Act, the public
is excluded from disciplinary proceedings conducted before the
National Judicial Council, unless the Council itself decides
otherwise. In this connection the Court observes at the outset that
it is not its task to rule on national law and practice in
abstracto. Instead it must confine itself to an examination of
the concrete facts of the cases before it (see, for example, Findlay
v. the United Kingdom, 25 February 1997, § 67, Reports
1997-1).
- The Court recalls that Article 6 § 1 of the
Convention provides that, in the determination of civil rights and
obligations, “everyone is entitled to a fair and public
hearing”. The public character of proceedings protects
litigants against the administration of justice in secret with no
public scrutiny; it is also one of the means whereby confidence in
the courts can be maintained. By rendering the administration of
justice visible, publicity contributes to the achievement of the aim
of Article 6 § 1, a fair hearing, the guarantee of which is one
of the foundations of a democratic society (see Sutter v.
Switzerland, 22 February 1984, § 26, Series A no. 74 ).
- Article 6 § 1 does not, however, prohibit courts
from deciding, in the light of the special features of the case
submitted to them, to derogate from this principle: in accordance
with the actual wording of this provision, “... the press and
public may be excluded from all or part of the trial in the interests
of morals, public order or national security in a democratic society,
where the interests of juveniles or the protection of the private
life of the parties so require, or to the extent strictly necessary
in the opinion of the court in special circumstances where publicity
would prejudice the interests of justice”; holding proceedings,
whether wholly or partly, in camera, must be strictly required by the
circumstances of the case (see, Diennet
v. France, 26 September 1995, § 34, Series A no. 325-A,
and Martinie v. France [GC], no. 58675/00, § 40,
ECHR 2006 ...).
- Moreover,
the Court has held that exceptional circumstances relating to the
nature of the issues to be decided by the court in the proceedings
concerned, may justify dispensing with a public hearing (see Martinie
v. France, cited above, § 41).
- As
to the present case, the Court notes that, contrary to the
applicant's request of 23 September 1998, the public was excluded
from the proceedings conducted before the National Judicial Council
on the ground of protection of the applicant's dignity and the
dignity of the judiciary as such. The Court observes also that the
exclusion of the public was not absolute since at the hearings held
on 1 and 7 October 1998 one representative of the UNHCR and one
representative of the OSCE were present. However, these persons were
warned, under threat of criminal sanctions, that they were obliged to
keep secret all they learned at these hearings. Furthermore, the
general public and the press were entirely and expressly excluded
from the hearing. Thus, the presence of the UNHCR and OSCE
representatives at two hearings held before the National Judicial
Council had no effect on the general exclusion of the public from the
proceedings before the National Judicial Council.
- The
Court notes that the NJC excluded the public from the hearing on the
ground that such a measure was necessary, given the nature of the
information in the case-file, for protection of the applicant's
dignity and the dignity of the judiciary as such. It did not,
however, further elaborate on either of these points. As regards the
first of these grounds, namely, the protection of the applicant's
dignity, the Court notes firstly that the applicant himself asked
that the proceedings be public and thus showed that he himself did
not consider that his dignity required protection through the
exclusion of the public.
- As
to the nature of the proceedings at issue, which sometimes may, as
stated above, justify dispensing with a public hearing, the Court
notes that the applicant repeated his request that the hearings
before the NJC be public on 23 September 1998, at a stage when the
allegations against the applicant consisted of assertions that he had
socialised with two persons who had a criminal background. In this
connection the Court notes that the facts of the case against the
applicant had in any event been widely discussed in the national
media, as is shown, inter alia, in the interviews with the
three members of the NJC, published before the case was finally
decided. It was obvious that the case aroused considerable public
interest and that controversial facts were presented in the media.
Given that the proceedings in question concerned such a prominent
public figure as the President of the Supreme Court and that public
allegations had already been made suggesting that the case against
him was politically motivated, it was evident that it was in the
interest of the applicant as well as that of the general public that
the proceedings before the NJC be susceptible to public scrutiny. In
these circumstances the Court cannot accept the reasons relied on by
the NJC for excluding the public as justified under Article 6 §
1 of the Convention.
- Lastly,
the Court notes that the public's lack of access to the proceedings
before the NJC was not rectified either in the proceedings before the
Parliament's Chamber of Counties or before the Constitutional Court,
since these bodies did not hold public hearings either.
It
follows that there has been a violation of Article 6 § 1 of the
Convention on account of the exclusion of the public from the
disciplinary proceedings against the applicant.
Equality of arms
- The
applicant alleged that not a single witness called on behalf of the
defence was heard in the proceedings before the National Judicial
Council. The Court reiterates that while Article 6 of the Convention
guarantees the right to a fair hearing, it does not lay down any
rules on the admissibility of evidence or the way it should be
assessed, which are therefore primarily matters for regulation by
national law and the national courts (see Schenk v. Switzerland,
12 July 1988, §§ 45-46, Series A no. 140, and Garcia
Ruiz v. Spain [GC] no. 30544/96, ECHR 1999-I, § 28).
Similarly, it is in the first place for the national authorities, and
notably the courts, to interpret domestic law and the Court will not
substitute its own interpretation for theirs in the absence of
arbitrariness. This principle applies, inter alia, to the
application of procedural rules concerning the nomination of
witnesses by parties (see Tamminen v. Finland, no. 40847/98,
§ 38, 15 June 2004). In this connection, the Court further
reiterates that it is not within its province to substitute its own
assessment of the facts for that of the national courts. However,
under the Court's case-law, the requirements of fairness of the
proceedings include the way in which the evidence is taken and
submitted. The Court's task is to ascertain whether the proceedings
in their entirety, including the way in which evidence was taken and
submitted, were fair within the meaning of Article 6 § 1 (see,
inter alia, Dombo Beheer B.V. v. the Netherlands, 27
October 1993, § 31, Series A no. 274).
- The
Court considers that as regards disciplinary proceedings against a
judge, equality of arms implies that the judge whose office is at
stake must be afforded a reasonable opportunity to present his or her
case - including his or her evidence - under conditions that do not
place him or her at a substantial disadvantage vis-à-vis
the authorities bringing those proceedings against a judge, namely,
in the present case, the Government. It is left to the national
authorities to ensure in each individual case that the requirements
of a fair hearing are met (see, mutatis mutandis, see, mutatis
mutandis, Dombo Beheer, cited above, § 33).
- In
order to decide whether the applicant in the instant case was
afforded the opportunity to present his case without being placed at
a disadvantage vis-à-vis the Government, and whether the
proceedings were conducted fairly, the Court will first examine what
constituted the basis of the applicant's dismissal (see, mutatis
mutandis, Destrehem v. France, cited above, § 43).
- In
this connection the Court observes that in the disciplinary
proceedings against the applicant the Government alleged that he had
maintained continuous contacts in public with two individuals who had
a criminal background, S.Š. and B.Č. These allegations
might have affected the applicant's reputation not only with regard
to his position as a judge and President of the Supreme Court but
also in any professional sphere, given that he is a lawyer.
Therefore, it was necessary that in the disciplinary proceedings at
issue the applicant was afforded ample opportunity to state his case
and present his evidence.
- The
Court notes that the applicant asserted that his contacts with two
individuals concerned had been very sporadic and that he had
sometimes found himself in their company, always in public places and
always in the company of various other persons. This line of defence
was intended to demonstrate that the applicant had not maintained any
close contacts with these two individuals but that they sometimes
frequented the same public places. The witnesses put forward by the
applicant were to substantiate this line of defence. In the Court's
view the explanations given by the applicant as regards the
allegations against him and the importance of the nominated witnesses
were relevant to his case and likely to contribute to the aims of his
defence.
- As to the reasons given by the domestic courts for not
admitting the evidence adduced by the applicant, the Court notes
that, even though a domestic court has a certain margin of
appreciation when choosing arguments in a particular case and
admitting evidence in support of the parties' submissions, an
authority is obliged to justify its activities by giving reasons for
its decisions (see Suominen v. Finland, no. 37801/97,
§ 36, 1 July 2003).
- In
the instant case the NJC justified its refusal to hear evidence from
any of the witnesses called on behalf of the applicant by stating
that the circumstances referred to in the evidence relied on by the
applicant had already been established or they were not important for
the case. However, the Court notes that both the applicant and the
two individuals concerned denied having any close contacts and
concurringly stated that they had been in each others' company only
occasionally and always with other persons. In the Court's view the
reasons relied on by the NJC for refusing to accept any of the
witnesses called on behalf of the applicant for the purpose of
substantiating his line of defence were not sufficient for the
reasons set out in paragraph 81 above.
- The Court observes further that, although it is not
its task to examine whether the court's refusal to admit the evidence
submitted by the applicant was well-founded, in its assessment of
compliance of the procedure in question with the principle of
equality of arms, which is a feature of the wider concept of a fair
trial (see Ekbatani v. Sweden, 26 May 1988, § 30,
Series A no. 134), significant importance is attached to
appearances and to the increased sensitivity of the public to the
fair administration of justice (see Borgers v. Belgium, 30
October 1991, § 24, Series A no. 214 B). In
this connection the Court notes that the NJC admitted all the
proposals to hear evidence from the witnesses nominated by the
counsel for the Government and none of the proposals submitted by the
applicant.
- It
is not the Court's function to express an opinion on the relevance of
the evidence or, more generally, on whether the allegations against
the applicant were well-founded. However, it is for the Court to
ascertain whether the proceedings in their entirety, including the
way in which the evidence was taken, were fair (see Asch v.
Austria, cited above, § 26). In the circumstance of the
present case, the Court finds that the national authorities' refusal
to examine any of the defence witnesses led to a limitation of the
applicant's ability to present his case in a manner incompatible with
the guarantees of a fair trial enshrined in Article 6 (see,
mutatis mutandis, Vidal v. Belgium, cited above, §
34).
There has therefore been a violation of Article 6 § 1 as regards
the principle of equality of arms.
Length of proceedings
- The
applicant complained that the length of proceedings, and in
particular those before the Constitutional Court, had exceeded the
reasonable time requirement.
- The
Government contested that argument, stressing the special role of the
Constitutional Court.
- The
Court reiterates that the reasonableness of the length of proceedings
is to be assessed in the light of the particular circumstances of the
case, regard being had to the criteria laid down in the Court's
case-law, in particular the complexity of the case, the applicant's
conduct and that of the competent authorities, and the importance of
what was at stake for the applicant in the litigation (see Süßmann
v. Germany, 16 September 1996, § 48, Reports
1996 IV, and Gast and Popp v. Germany, no 29357/95, §
70, ECHR 2000). In this connection the Court notes that the
proceedings commenced sometime in 1996 and ended with the
Constitutional Court's decision of 9 December 2004. While the initial
proceedings, together with the Constitutional Court's decision of 14
April 1998 quashing the impugned decisions, was speedily decided, the
same cannot be said of the length of the second phase of proceedings.
- In
that second stage the National Judicial Council and the Chamber of
Counties proceeded speedily and concluded the case on 10 November
1998. However, the second examination of the case before the
Constitutional Court lasted from 2 December 1998, when the applicant
brought his second constitutional complaint, until 9 December 2004,
thus exceeding six years.
- Although
the Court accepts that its role of guardian of the Constitution
occasionally makes it particularly necessary for a Constitutional
Court to take into account considerations other than the mere
chronological order in which cases are entered on the list, such as
the nature of a case and its importance in political and social
terms, the Court finds that a period exceeding six years to decide on
the applicant's case, in particular in view of what was at stake for
the applicant, namely his dismissal, appears excessive.
- Accordingly,
the Court considers that in the present case there has been a
violation of Article 6 § 1 of the Convention on account of the
length of proceedings.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant complained that he had no effective remedy for his
complaints under Article 6 of the Convention. He relied on Article 13
of the Convention, which provides:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- In
the light of all the material in its possession, and in so far as the
matters complained of are within its competence, the Court considers
that this complaint does not disclose any appearance of a violation
of the Convention. It follows that it is inadmissible under
Article 35 § 3 as manifestly ill-founded and must be
rejected pursuant to Article 35 § 4 of the
Convention.
III. 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 200,000 euros (EUR) in respect of non-pecuniary
damage. He explained that the unfounded accusations against him in
the disciplinary proceedings at issue, namely that he had had sexual
relationships with minors and had used his position to secure the
gains of criminals, accusations which had been continuously repeated
in the media, had harmed his dignity and reputation and created an
extremely negative image of him, which had caused him severe mental
suffering. Furthermore, the stress caused by the proceedings led to
his hospitalisation for cardiac difficulties and high-blood pressure.
- The
Government deemed the sum claimed unfounded and excessive.
- The
Court, accepting that the violations found have caused the applicant
non-pecuniary damage which cannot be made good by the mere finding of
a violation nor by the possibility open to the applicant under
national law to seek a fresh trial (Article 430 of the Croatian Code
of Criminal Procedure), awards him 5,000 euros (EUR) in that respect,
plus any tax that may be chargeable to the applicant.
B. Costs and expenses
- The
applicant made no claim in respect of costs and expenses.
Accordingly, the Court considers that there is no call to award him
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 UNANIMOUSLY
- Declares the complaints under Article 6 § 1
of the Convention admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the lack of objective
impartiality of three members of the National Judicial Council;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the unjustified exclusion
of the public from the proceedings before the National Judicial
Council;
- Holds that there has been a violation of Article
6 § 1 of the Convention as regards the principle of the equality
of arms;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the excessive length of
proceedings.
- Holds
(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 5,000 (five
thousand euros), plus any tax that may be chargeable to the
applicant, in respect of non-pecuniary damage, to be converted into
the national currency of the respondent State 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 the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 5 February 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
