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FIRST
SECTION
CASE OF ŠIKIĆ v. CROATIA
(Application
no. 9143/08)
JUDGMENT
STRASBOURG
15 July
2010
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 Šikić
v. Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Anatoly
Kovler,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Dean
Spielmann,
Sverre
Erik Jebens,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 24 June 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 9143/08) 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 Hrvoje Šikić
(“the applicant”), on 31 December 2007.
- The
applicant was represented by Mrs D. Kaplan, a lawyer practising in
Nova Gradiška. The Croatian Government (“the
Government”) were represented by their Agent, Ms Š.
StaZnik.
- On
2 March 2009 the President of the First Section decided to
communicate the complaint concerning the length and the unfairness of
the proceedings on the applicant’s dismissal as well as the
complaint concerning the applicant’s right to be presumed
innocent to the Government. It was also decided to examine the merits
of the application at the same time as its admissibility (Article 29
§ 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1965 and lives in Vinkovci.
A. Criminal proceedings against the applicant
- On
13 November 2001 the Vukovar State Attorney’s Office (Općinsko
drZavno odvjetništvo u Vukovaru) indicted the applicant in
the Vukovar Municipal Court (Općinski sud u Vukovaru) of
the criminal offence of abuse of position and authority (zlouporaba
poloZaja i ovlasti). On 11 December 2001 a representative of the
State Attorney’s Office withdrew the charges against the
applicant, stating that the facts of the case did not show that the
applicant had committed any criminal offence liable to public
prosecution. Hence, the Municipal Court dismissed the charges against
him on 11 December 2001. The relevant part of this judgment reads as
follows:
“In respect of the defendant Hrvoje Šikić
...
Pursuant to Article 353(3) of the Code of Criminal
Procedure,
the indictment is dismissed
that he:
on the night of 10 to 11 December 1999, in Vukovar, in
his capacity as vice-chief of traffic crime-scene investigation and
as chief constable of the Vukovar Police Station, after [having
received] a report of a road accident caused by police officer M.V.
while driving a police car ...[and] with the intention of helping
M.V. avoid responsibility [for the accident] and to conceal the whole
incident, did not allow the obligatory on-site inspection to be
carried out although he had personally visited the site of the
accident and ordered the officers in charge, S.M. and R.M., not to
register the said accident in the events register. He certified the
register with his signature, thus confirming that during the shift
there had been no incidents to be registered, although he knew that
it was not true
...
Reasoning
...
At a hearing held on 11 December 2001 the Deputy Vukovar
Municipality State Attorney, G.D., withdrew the charges against the
defendant ... on grounds that he had not committed the said criminal
offence, or any other criminal offence liable to public prosecution.
...”
B. Proceedings concerning the applicant’s
dismissal
- On
29 October 2001 a criminalist of the Vukovar Police Station
(Policijska postaja Vukovar) drew up a report on the events of
the night of 10 to 11 December 1999. On 30 October 2001 the
applicant was removed from his post. On the same day the
Vukovar-Srijemska Police Department lodged a request with the Vukovar
Police Station that disciplinary proceedings against the applicant be
instituted. On 11 December 2001 the applicant made his statement to
an officer of the Vukovar-Srijemska Police Department (Policijska
uprava vukovarko srijemska), in the presence of his counsel.
However, subsequently no disciplinary proceedings were instituted
against the applicant. Instead, in a decision of 7 January 2002 the
Minister of the Interior (Ministar unutarnjih poslova Republike
Hrvatske), on the basis of the police reports and the written
record of the applicant’s statement given on 11 December 2001,
dismissed the applicant with effect from 31 January 2002 on the
ground that in respect of the road accident which had occurred on the
night of 10 to 11 December 1999 he had acted contrary to his duties
as a policeman. The applicant lodged an appeal on 18 February 2002
and the impugned decision was quashed by the Administrative Court
(Upravni sud Republike Hrvatske) on 12 September 2002.
- In
a fresh decision of the Minister of the Interior on 8 January 2003
the applicant was again dismissed with effect from 31 January 2002.
It was found that on the night of 10 to 11 December 1999, in his
capacity as vice-chief for traffic crime-scene investigation and as
chief constable of the Vukovar Police Station, he had disregarded his
duties in relation to a road accident caused by a police car. After
arriving at the scene, the applicant had let those implicated leave
the scene of the accident without calling the crime-scene team in
order to carry out an on-site inspection. He had further failed to
institute adequate proceedings against the perpetrator of the road
misdemeanour. He had also instructed the police officers involved to
make a deal concerning compensation to the injured party.
Furthermore, he had signed the events register, in respect of that
night, stating that there had been no incidents to report.
Afterwards, he had allowed and arranged for the unauthorised repair
of the police car.
The
relevant part of the decision reads as follows:
“As a police officer the defendant ... was under a
duty to control and supervise the legality of the acts of other
police officers. However, as to the incident in question he acted
entirely contrary to this duty and thus allowed the person who had
caused the road accident in question to avoid responsibility for it,
which clearly shows a disregard for his duties ...
Furthermore, the defendant violated laws regulating the
[police] service in that he acted contrary to section 176 of the Road
Safety Act (Zakon o sigurnosti prometa na cestama, Official
Gazette no. 59/1996) which requires drivers who have been implicated
in a road accident causing lesser material damage to vehicles to
immediately remove those vehicles from the road in order to enable
the unhindered movement of traffic and to inform the nearest police
station of the accident and to wait for the arrival of an official
authorised to carry out an on-site inspection.
Section 123 (2) of the Police Act (Zakon o policiji)
provides that obstruction of duties under paragraph 1 of that section
amounts to a transgression of police authority or disregard for the
same when a police officer is, according to that Act, obliged to
apply [his authority, the obstruction] of which has then caused
damage to natural or legal persons or State bodies.
As to the case in question, it has been clearly
established that the defendant, as a police officer, failed to carry
out his police duties in the manner prescribed by the Police Act.
It has also been clearly established that [this] caused
damage, both non-pecuniary, (to the reputation of the police), and
pecuniary, by causing delays in the proceedings, the lack of
sanctions against the perpetrator of a traffic misdemeanour as well
as damage to the police vehicle which was not repaired in an adequate
manner.
The material damage was caused by a transgression and
disregard of police duties by Hrvoje Šikić in that he
failed to enforce a fine, in accordance with the Road Safety Act,
against the driver of the police car, M.V. ...”
- On
14 February 2003 the applicant appealed against the above decision to
the Administrative Court, challenging the decision on his dismissal.
He argued that his right to be presumed innocent had been violated
because in the criminal proceedings against him the charges against
him which concerned the same facts as those that had served as a
basis for his dismissal had been withdrawn. He further complained
that prior to adopting a decision on his dismissal the Ministry of
the Interior had not conducted any proceedings and had not given him
an opportunity to be heard in these proceedings, to question
witnesses or adduce evidence. He did not ask for an oral hearing
before the Administrative Court.
- On
15 May 2003 the Administrative Court upheld the decision on the
applicant’s dismissal. In his subsequent constitutional
complaint of 18 August 2003 the applicant complained, inter
alia, that his right to a fair trial and his right to be presumed
innocent had been infringed. On 13 June 2007 the Constitutional
Court (Ustavni sud Republike Hrvatske) dismissed the complaint
as being ill-founded. The relevant part of the decision reads:
“Article 28 of the Constitution provides:
Everyone is innocent and no one shall hold him or her
guilty of a criminal offence until proved so in a final judgment by a
court of law.
The case-file shows that the decision on dismissal and
the judgment of the Administrative Court are not based on the
applicant’s criminal responsibility for a criminal offence, but
on the finding that the applicant had transgressed his police
authority and disregarded his duty, which resulted in a breach of the
regulations on the [police] service and a lack of compliance with the
duties within the competence of the Ministry of the Interior.
Relying on the principles established in its decision
no. U-III-2220/2002 of 15 September 2004 (Official Gazette nos.
141/04 and 6/05), the Constitutional Court finds that, despite his
acquittal in the criminal proceedings against him, the applicant’s
dismissal on the grounds under section 123 of the Police Act did not
violate his constitutional right under Article 28 of the
Constitution.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Section
123 of the Police Act (Zakon o policiji, Official Gazette
no. 129/2000) reads:
Section 123
“...
The Minister of the Interior ... adopts a decision on
dismissal from service after obtaining the opinion of the [officer’s
in question] hierarchical superior.
There is no right to an appeal against the decision
under paragraph 3. Instead, administrative proceedings may be
instituted before the Administrative Court of the Republic of
Croatia.”
- The Administrative Disputes Act (Zakon o
upravnim sporovima, Official Gazette
nos. 53/1991, 9/1992 and 77/1992) regulates the procedure before the
Administrative Court. Section 34 provides as follows:
“The court decides administrative disputes in a
non-public session.
The court may decide to hold an oral hearing on account
of the complexity of the dispute or if it otherwise finds it useful
for better clarification of the matter at issue.
For the same reasons a party may ask that an oral
hearing be held.”
- The
Constitutional Court’s decision no. U-III-2220/2002 of
15 September 2004 (Official Gazette nos. 141/04 and 6/05), in so
far as relevant, reads:
“The case-file shows that the judgments of the
disciplinary courts and the Administrative Court did not rely on the
applicant’s criminal responsibility for a criminal offence, but
found the applicant’s conduct while not on duty, by which he
had violated the rules of service and committed a grave breach of
work discipline, improper.
...
The responsibility for grave breaches of work discipline
in disciplinary proceedings may be established without a decision of
a criminal court, irrespective of the possibility that a breach of
work discipline may at the same time amount to a criminal offence. In
disciplinary proceedings the features of a breach of work discipline
are established and do not require that at the same time the
requirements of a criminal offence are met. In that respect
disciplinary responsibility is broader than criminal responsibility.
Therefore, despite his acquittal in the criminal
proceedings against him, finding the applicant guilty of committing a
grave breach of work discipline did not violate his constitutional
right under Article 28 of the Constitution.”
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant firstly complained that the proceedings concerning his
dismissal had been unfair on account of the wrong interpretation of
relevant domestic laws by the national authorities and on account of
his inability to participate in these proceedings, to question
witnesses and adduce evidence.
- He
also complained that the proceedings on his dismissal him had
exceeded the reasonable time requirement.
The
relevant part of Article 6 reads:
“1. In the determination of his civil
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 tribunal established by law...”
A Admissibility
1. The parties’ arguments
- The
Government argued that Article 6 was not applicable to the
proceedings at issue, since they concerned the dismissal of a State
official.
- The
applicant argued that Article 6 was applicable.
2. The Court’s assessment
- As
to the applicability of Article 6 § 1 of the Convention to the
proceedings concerning dismissal of a civil servant the Court has
held that, in principle, there can be no justification for the
exclusion from the guarantees of Article 6 of ordinary labour
disputes, such as those relating to salaries, allowances or similar
entitlements, on the basis of the special nature of the relationship
between the particular civil servant and the State in question. There
will, in effect, be a presumption that Article 6 applies. It
will be for the respondent Government to demonstrate, first, that an
applicant who is a civil servant does not have a right of access to a
court under national law and, second, that the exclusion of the
rights under Article 6 for the civil servant is justified (see
Vilho Eskelinen and Others v. Finland [GC], no. 63235/00,
§ 62, ECHR 2007-...).
- In
the present case, the proceedings concerned the applicant’s
dismissal from the police. While
in the above-mentioned Vilho
Eskelinen judgment the
Court gave a non-exhaustive list of examples of “ordinary
labour disputes” to which Article 6 should in principle apply,
it did not exclude other labour-related proceedings from
applicability of that Article. The
Court has constantly held that proceedings in which the right
to continue to exercise a profession is at stake give rise to
“contestations” (disputes) over civil rights
within the meaning of Article 6 § 1 (see Philis
v. Greece (no. 2), 27 June 1997, § 45, Reports of
Judgments and Decisions 1997 IV; Gautrin and Others v.
France, 20 May 1998, § 35, Reports of Judgments and
Decisions 1998 III; and W.R. v. Austria, no.
26602/95, §§ 25 – 31, 21 December 1999).
- Furthermore,
the Eskelinen
test, as regards the question whether the applicant had access to a
court in respect of proceedings concerning his dismissal, is to be
answered in the affirmative. The Court notes in this respect
that the applicant’s case was examined by the Ministry of the
Interior and after that by the Administrative Court and the
Constitutional Court. The Croatian system thus secured the
applicant’s “right to a court”, of which the right
of access constitutes one aspect.
- It
follows that Article 6 is applicable under its civil head to the
proceedings in question (see Melek Sima Yılmaz v. Turkey,
no. 37829/05, § 19, 30 September 2008; Olujić
v. Croatia, no. 22330/05, §§ 34 and 44, 5 February
2009; and Bayer v. Germany, no. 8453/04, § 39, 16 July
2009).
- The
Court further considers that the applicant’s complaints
concerning the lack of an oral hearing in and the length of the
proceedings concerning his dismissal are not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
considers that they are not inadmissible on any other grounds. They
must therefore be declared admissible.
B. Merits
1. Fairness of the proceedings
(a) The parties’ arguments
- The
applicant argued that the proceedings on his dismissal had been
unfair on account of the wrong interpretation of relevant domestic
laws by the national authorities and on account of his inability to
participate in these proceedings, to question witnesses and adduce
evidence.
- The
Government argued that the applicant had made his statement on 11
December 2001 at the Vukovarsko-Srijemska Police Department in the
presence of his counsel.
(b) The Court’s assessment
- In
so far as the applicant’s complaint relates to the assessment
of facts and application of the law by the national authorities,
the Court notes that it concerns the outcome of the proceedings on
the applicant’s dismissal. In this respect the Court reiterates
that, according to Article 19 of the Convention, its duty is to
ensure the observance of the engagements undertaken by the
Contracting Parties to the Convention. In particular, it is not its
function to deal with errors of fact or law allegedly committed by a
national court unless and in so far as they may have infringed rights
and freedoms protected by the Convention. Moreover, 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. Austria, judgment of
12 July 1988, Series A no. 140, §§ 45-46, and Garcia
Ruiz v. Spain, no.
30544/96, Reports of
Judgments and Decisions
1999-I, § 28).
- The
Court notes that the applicant also referred to his inability to
participate in the proceedings on his dismissal and notes that indeed
no oral hearing took place in the proceedings at issue at any stage.
- In
this respect the Court reiterates that Article 6 guarantees the right
to a fair hearing by a tribunal. The Court notes that the applicant’s
case was decided at the first instance by the Ministry of the
Interior, acting as an administrative body. This body, being one of
the ministries of the Croatian Government and thus vested with
executive powers, cannot be regarded as a tribunal within the meaning
of Article 6 of the Convention.
- The
case was then examined by the Administrative Court and the
Constitutional Court. The Constitutional Court decides cases in
sessions and does not hold hearings. Therefore, the issue that arises
before this Court concerns the applicant’s right to an oral
hearing in the proceedings before the Administrative Court.
- The
Court notes that section 34 of the Administrative Disputes Act
establishes as a rule that the Administrative Court decides the cases
before it in a closed session. Exceptionally, it may hold an oral
hearing. It also establishes the right of a party to the proceedings
before that court to request that an oral hearing be held.
- The
Court further notes that in his action lodged with the Administrative
Court on 14 February 2003 the applicant did not request that an oral
hearing be held. He has not submitted to the Court any other proof
showing that he made such a request at any later stage of the
proceedings before the Administrative Court. The Court therefore
takes it as established that the applicant did not request an oral
hearing before the Administrative Court. It must therefore be deemed
that he waived unequivocally his right to a hearing. Moreover, his
case did not in the Court’s view give rise to questions of
public interest making such a hearing necessary (see Schuler-Zgraggen
v. Switzerland, 24 June 1993, § 58, Series A no. 263;
Zumtobel v. Austria, 21 September 1993, § 34, Series
A no. 268 A; and Fischer v. Austria, 26 April 1995,
§ 44, Series A no. 312).
- Accordingly,
there has been no breach of the requirements of Article 6 §
1 of the Convention in the circumstances of the present case.
2. Length of the proceedings
(a) The parties’ arguments
- The
applicant argued that the length of the proceedings on his dismissal,
and in particular those before the Constitutional Court, had exceeded
the reasonable time requirement under Article 6 § 1 of the
Convention.
- The
Government argued that the proceedings had been concluded within a
reasonable time.
(b) The Court’s assessment
- The
Court has recognised that in administrative proceedings the period to
be taken into consideration may even start to run prior to the court
proceedings, if preliminary administrative proceedings were a
precondition of the former (see, among other authorities, Janssen
v. Germany, no. 23959/94, § 40, 20 December
2001, and König v. Germany, judgment of 28 June 1978,
Series A no. 27, § 98). In the instant case a request to
institute the disciplinary proceedings against the applicant was
submitted on 30 October 2001 but disciplinary proceedings were
never instituted.
- Instead,
the Minister of the Interior adopted a decision on the applicant’s
dismissal. Against this decision, the applicant lodged an appeal with
the Administrative Court on 18 February 2002. The Court therefore
considers that it was then that a “dispute” within the
meaning of Article 6 § 1 arose (see, mutatis mutandis,
Janssen, cited above, § 40). The period in question
ended on 13 June 2007 when the Constitutional Court adopted its
decision. It thus lasted five years, three months and twenty-five
days during which four decisions concerning the applicant’s
dismissal were given at two judicial levels of jurisdiction.
- The
Court reiterates that the reasonableness of the length of those
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, pp. 1172-73, § 48, Reports of
Judgments and Decisions 1996-IV, and Gast and Popp v. Germany,
no 29357/95, § 70, ECHR 2000).
- While
the present case was speedily decided by the administrative body
involved as well as by the Administrative Court, where the
proceedings lasted for some months at each instance, the same cannot
be said of the length of proceedings before the Constitutional Court,
which lasted for three years, nine months and twenty-five days.
- Although
the Court accepts that its role of guardian of the Constitution makes
it particularly necessary for a Constitutional Court sometimes 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 three years and nine months to decide
on the applicant’s case and in particular in view of what was
at stake for the applicant, namely his dismissal from work, and the
global length which amounted to some five years, was 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 the proceedings.
II. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE
CONVENTION
- The
applicant complained under Article
6 § 2 of the Convention
that his right to be presumed innocent had been violated because he
had been dismissed on account of the same facts in respect of which
the criminal proceedings against him had been opened and the charges
subsequently dropped on the grounds that he had not committed a
criminal offence.
The
relevant part of Article 6 reads:
“...
2. Everyone charged with a criminal offence
shall be presumed innocent until proved guilty according to law.
...”
A. Admissibility
1. The parties’ arguments
- The
Government maintained that Article 6 § 2 was not applicable
since the proceedings concerning the applicant’s dismissal
could not be regarded as proceedings concerning the determination of
a criminal charge against him. The proceedings at issue had examined
the compatibility of the applicant’s conduct with his duties as
a public official in the police force.
41. The applicant
contested these arguments and stressed the identical factual basis of
the criminal proceedings against him and the grounds for his
dismissal.
2. The Court’s assessment
- The
Court notes at the outset that the applicant was indicted before the
Vukovar Municipal Court on charges that, as vice-chief for traffic
crime-scene investigation and as chief constable of the Vukovar
Police Station, he had disregarded his duty in relation to a road
accident caused by a police car and thus committed the criminal
offence of abuse of position and authority. Therefore, for the
purposes of Article 6 the applicant was charged with a criminal
offence, which warrants the application of that provision in respect
of those criminal proceedings.
- The
question remains whether there were links between the criminal
proceedings and the parallel proceedings concerning the applicant’s
dismissal that would justify extending the scope of Article 6 §
2 to cover the latter.
- In
this connection the Court reiterates that the scope of Article 6 § 2
is not limited to pending criminal proceedings against an applicant
(see Allenet de Ribemont v. France, 10 February 1995,
Series A no. 308, § 35, and Diamantides v. Greece
(no. 2), no. 71653/01, §§ 34-35). The Court has also found
the provision applicable to judicial decisions taken after the
discontinuation of such proceedings (see, in particular, the
following judgments: Minelli v. Switzerland, 25 March 1983,
Series A no. 62, and Lutz, Englert and
Nölkenbockhoff v. Germany, 25 August 1987, Series A
no. 123), or following an acquittal (see Sekanina v. Austria,
25 August 1993, Series A no. 266 A; Rushiti v. Austria,
no. 28389/95, 21 March 2000; and Lamanna v. Austria, no.
28923/95, 10 July 2001). Those judgments concerned proceedings
relating to such matters as an accused’s obligation to bear
court costs and prosecution expenses, a claim for reimbursement of
his (or his heirs’) necessary costs, or compensation for
unlawful detention, matters which were found to constitute a
consequence and the concomitant of the criminal proceedings. The
scope of Article 6 § 2 also extends to various administrative
proceedings conducted simultaneously with criminal proceedings
against an applicant or after the conclusion of criminal proceedings
ending without a guilty verdict (see Stavropoulos v. Greece,
no. 35522/04, 27 September 2007, Paraponiaris v. Greece,
no. 42132/06, 25 September 2008).
- The
Court further reiterates that the Convention is intended to guarantee
not rights that are theoretical or illusory but rights that are
practical and effective
(see Airey v. Ireland, 9 October 1979, Series A
no. 32, § 24, and Puig Panella v. Spain, no.
1483/02, § 50, 25 April 2006).
- As
to the present case the Court notes that the proceedings concerning
the applicant’s dismissal ran parallel to the criminal
proceedings against him and that the findings of the administrative
bodies had no influence or prejudicial effect on the criminal
investigation.
- However,
the Court considers that where criminal proceedings end prior to a
formal indictment, irrespective of the ground for their
discontinuation, the lack of a person’s criminal conviction
shall, in compliance with the principle of the presumption of
innocence, be preserved in any other proceedings of whatever nature,
including proceedings on that person’s dismissal from public
service (see, mutatis mutandis, Y v. Norway,
no. 56568/00, § 41, ECHR 2003 II (extracts).
Therefore, Article 6 § 2 applies in the circumstances of the
present case.
- The
Court further notes 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
1. The parties’ arguments
- The
applicant maintained that the decision on his dismissal amounted to a
violation of his right to be presumed innocent in that the
administrative authorities had found that he had committed an act
factually identical to a criminal offence in respect of which charges
against him had been dropped on the grounds that he had not committed
any criminal offence liable to public prosecution.
- The
Government argued that the criminal proceedings against the applicant
concerned the criminal offence of abuse of position and authority
while the administrative authorities and the Administrative Court had
conducted the proceedings concerning the applicant’s dismissal
on the grounds that he had committed a grave breach of work
discipline. The criminal responsibility and the responsibility for
breaches of the work discipline were independent of each other and
the lack of the former did not exclude the existence of the latter.
The features of a criminal offence and a breach of work discipline
may overlap but, irrespective of one’s criminal responsibility,
the administrative bodies deciding on breaches of official duty were
independent in their assessment of facts and evidence and in reaching
their conclusions as to an individual’s disciplinary
responsibility.
- In
the applicant’s case the bodies deciding in the proceedings on
the applicant’s dismissal had not been bound by the findings or
the result of the criminal proceedings. They had conducted their own
assessment, on the basis of the evidence available to them, of the
applicant’s conduct in his capacity as a police officer.
2. The Court’s assessment
- The
Court’s case-law establishes that the presumption of innocence
is infringed if a statement of a public official concerning a person
charged with a criminal offence reflects the opinion that he is
guilty, unless he has been proved so according to law. It suffices,
even in the absence of any formal finding, that there is some
reasoning to suggest that the official regards that person as guilty
(see Daktaras v. Lithuania, no. 42095/98, § 41,
ECHR 2000-X, and A.L. v. Germany, no. 72758/01, § 31,
28 April 2005). Whether a statement of a public official is in
breach of the principle of the presumption of innocence must be
determined in the context of the particular circumstances in which
the statement was made (see Daktaras, cited above, § 43).
The scope of Article 6 § 2 is moreover not limited to pending
criminal proceedings, but extends to judicial decisions taken after a
prosecution has been discontinued (see Nölkenbockhoff,
cited above, § 37; and Capeau, cited above, §
25) or after an acquittal (see, in particular, Sekanina v.
Austria, cited above, § 30; O. v. Norway, no.
29327/98, ECHR 2003-II and Grabchuk v. Ukraine, no. 8599/02, §
42, 21 September 2006).
- As
to the present case, the Court notes that in dismissing the
applicant’s complaint the Constitutional Court relied, inter
alia, on a different standard of proof required in disciplinary
proceedings from that required for a conviction of a criminal
offence. The Court reiterates that it has accepted the justifiability
of similar reasoning in the context of civil tort liability. In
respect of the latter the Court has held that (Y v. Norway,
cited above):
“41. ... the fact that an act which
may give rise to a civil compensation claim under the law of tort is
also covered by the objective constitutive elements of a criminal
offence could not, notwithstanding its gravity, provide a sufficient
ground for regarding the person allegedly responsible for the act in
the context of a tort case as being “charged with a criminal
offence”. Nor could the fact that evidence from the criminal
trial is used to determine civil law consequences of the act warrant
such characterisation. Otherwise, as rightly pointed out by the
Government, Article 6 § 2 would give a criminal acquittal the
undesirable effect of pre-empting the victim’s possibilities of
claiming compensation under the civil law of tort, entailing an
arbitrary and disproportionate limitation on his or her right of
access to court under Article 6 § 1 of the Convention. This
again could give an acquitted perpetrator, who would be deemed
responsible according the civil burden of proof, the undue advantage
of avoiding any responsibility for his or her actions. Such an
extensive interpretation would not be supported either by the wording
of Article 6 § 2 or any common ground in the national legal
systems within the Convention community. On the contrary, in a
significant number of Contracting States, an acquittal does not
preclude establishing civil liability in relation to the same facts.
Thus, the Court considers that, while the acquittal from
criminal liability ought to be maintained in the compensation
proceedings, it should not preclude the establishment of civil
liability to pay compensation arising out of the same facts on the
basis of a less strict burden of proof (see, mutatis mutandis,
X v. Austria, no. 9295/81, Commission decision of 6 October
1992, Decisions and Reports (D.R.) 30, p. 227; M.C. v. the United
Kingdom, no. 11882/85, decision of 7 October 1987, D.R. 54, p.
162).
42. However, if the national decision on
compensation contains a statement imputing the criminal liability of
the respondent party, this could raise an issue falling within the
ambit of Article 6 § 2 of the Convention.
43. The Court will therefore examine the
question whether the domestic courts acted in such a way or used such
language in their reasoning as to create a clear link between the
criminal case and the ensuing compensation proceedings as to justify
extending the scope of the application of Article 6 § 2 to the
latter.”
- The
Court firstly notes that in the proceedings concerning the
applicant’s dismissal he was not found guilty of a criminal
offence but of a breach of work discipline.
- As
to the findings in the criminal proceedings against the applicant,
the Court notes that the charges against the applicant were dropped
because a representative of the State Attorney’s Office deemed
that the conduct of the applicant on the critical occasion had not
amounted to a criminal offence liable to public prosecution. However,
in those proceedings it was not established that the applicant had
not committed the acts in question. No assessment was made in that
connection. In these circumstances, the bodies conducting the
proceedings on the applicant’s dismissal were free to make
their own assessment as to whether the applicant had acted in the
manner held against him. The Ministry of the Interior found that the
applicant had not properly registered and reported a road accident
involving a police vehicle. These findings sufficed to establish a
breach of work discipline by the applicant. The Court considers that
the administrative body was empowered to and capable of establishing
independently the facts of the case before it. In doing so the Court
does not consider that any statement was made that would call into
question the applicant’s right to be presumed innocent.
- In
view of this, the Court considers that the decision on the
applicant’s dismissal did not run contrary to the right
guaranteed under Article 6 § 2 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant further complained that he had no effective remedy at his
disposal in respect of his complaint about the fairness of the
proceedings concerning his dismissal and his complaint concerning his
right to be presumed innocent. He relied on Article 13 of the
Convention, which reads:
“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.”
- The
Court notes at the outset that the applicant’s complaint under
Article 13 of the Convention is linked to his complaints under
Article 6 of the Convention, which are twofold (see paragraph 23
above). The Court will proceed by examining these two aspects of the
alleged violation of Article 13 separately.
- As
regards the applicant’s complaints concerning the fairness of
the proceedings on his dismissal, the Court notes that it was open to
him to lodge an appeal against the first-instance decision, an
administrative complaint and a constitutional complaint.
- As
regards the applicant’s complaint concerning the violation of
his right to be presumed innocent, the Court notes that it was open
to him to lodge a constitutional complaint.
- In
connection with both aspects of Article 13, the Court reiterates that
this provision does not guarantee the success of a remedy used.
- Having
regard to the above, the Court considers that this part of the
application is manifestly ill-founded and must be rejected in
accordance with Article 35 §§ 3 and 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 59,000 euros (EUR) in respect of pecuniary and EUR
30,000 in respect of non-pecuniary damage.
- The
Government argued that there had been no ground for awarding any
pecuniary damage. As regards the claim in respect of non-pecuniary
damage, they deemed the sum claimed excessive.
- 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 EUR 3,100 in respect of
non-pecuniary damage plus any tax that may be chargeable to him.
B. Costs and expenses
- The
applicant also claimed EUR 3,000 for his legal representation.
- The
Government made no comments as regards the amount claimed.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 2,000 for the
proceedings before it, plus any tax that may be chargeable to the
applicant on this amount.
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 complaint concerning the fairness
and the length of the proceedings on the applicant’s dismissal
as well as the complaint concerning his right to be presumed innocent
admissible and the remainder of the application inadmissible;
- Holds that there has been no violation of
Article 6 § 1 of the Convention in respect of the fairness of
the proceedings on the applicant’s dismissal;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the length of proceedings
on the applicant’s dismissal;
- Holds that there has been no violation of
Article 6 § 2 of the Convention;
- 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, the following
amounts, which are to be converted into Croatian kunas at the rate
applicable at the date of settlement:
(i) EUR
3,100 (three thousand one hundred euros) in respect of non-pecuniary
damage, plus any tax that may be chargeable to the applicant;
(ii) EUR
2,000 (two thousand euros) in respect of costs and expenses, plus any
tax that may be chargeable to the applicant;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts 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 15 July 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
