(Application no. 22330/05)
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:
Sverre Erik Jebens,
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:
I. THE CIRCUMSTANCES OF THE CASE
A. Disciplinary proceedings against the applicant
“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”
“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.”
“... 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.”
“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.
B. The statements concerning the applicant's case made in the media by three members of the National Judicial Council
“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.”
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.”
“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 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.
“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.”
“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.”
“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.
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.”
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.
“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.”
“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.”
“For a grave disciplinary offence one of the following measures may be imposed:
3. dismissal from office.
“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.”
“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.”
”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.”
“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.”
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
“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.
The parties' arguments
The Court's assessment
“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.”
Scope of the case before the Court
The parties' arguments
The Court's assessment
Impartiality of the three members of the National Judicial Council
Right to a public hearing
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
Length of proceedings
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
“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.”
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 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;
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