(Application no. 24810/06)
22 December 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Parlov-Tkalčić v. Croatia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Sverre Erik Jebens,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 3 December 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Background to the case
B. Criminal complaint against the applicant
“... despite the rectification of the judgment, the advocate Marija Parlov-Tkalčić, to date does not want to return the unlawfully appropriated money to [the company] C.O., Zabok, for which reason the civil proceedings no. P-330/93 were instituted [against her].
Since we consider that the act of the advocate Marija Parlov-Tkalčić also contains elements of criminal liability, we are reporting it to you with a view to investigating it and, possibly, instituting criminal proceedings against her ...”
The ... judge [assigned to hear the case] of the Zlatar Municipal Court made a request that the criminal proceedings ... against Marija Parlov-Tkalčić ... be conducted before the Krapina Municipal Court.
The request is substantiated by the fact that the accused Marija Parlov-Tkalčić is an advocate with her office in Zlatar and that the criminal complaint against her was filed by the president of the Zlatar Municipal Court, which may objectively cast doubt on the impartial administration of justice if the proceedings are to be conducted before the Zlatar Municipal Court.
The request is well-founded.
The circumstances highlighted in the request of the ... judge [assigned to hear the case] constitute in the present instance important reasons within the meaning of section 31(1) of the Criminal Procedure Act for transferring territorial jurisdiction from the Zlatar Municipal Court to the Krapina Municipal Court ...
C. Civil proceedings for unjust enrichment
D. The proceedings following the applicant's constitutional complaint about the length of proceedings
E. Organisation of the Zlatar County Court and the rules governing allocation of cases
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Constitution
“In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.”
B. Relevant legislation
1. The Constitutional Court Act
“1. Everyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the decision of a state authority, local or regional self-government, or a legal person invested with public authority, on his or her rights or obligations, or about suspicion or accusation for a criminal offence, has violated his or her human rights or fundamental freedoms, or right to local or regional self-government, guaranteed by the Constitution (hereinafter: constitutional right)...
2. If another legal remedy is allowed against the violation of the constitutional rights [complained of], the constitutional complaint may be lodged only after this remedy has been exhausted.
3. In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law [revizija] are allowed, remedies shall be considered exhausted only after the decision on these legal remedies has been given.”
“(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the individual's rights and obligations or a criminal charge against him or her within a reasonable time ...
(2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the competent court must decide the case on the merits...
(3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.”
2. The Civil Procedure Act
“The highest court of a certain type in the Republic of Croatia may, following a proposal by the party or the competent court, assign another court from its territory to decide a certain case if this would obviously facilitate the proceedings or for other important reasons.”
A judge ... shall be disqualified from exercising his or her functions:
6) if other circumstances exist to cast doubt on his or her impartiality.
(1) Parties may also request withdrawal [of a judge]...
(2) A party may request withdrawal of a judge of a higher court in the appeal or a reply thereto...
(1) The party's request for withdrawal of a judge shall be decided by the president of the court.
(2) Should the party request withdrawal of the president of the court, such request shall be decided by the president of the immediately higher court.
3. The Courts Act
a) Performance of judge's duties
President of the court in which a judge exercises his or her duties determines for the preceding calendar year:
1. whether a judge delivered the number of decisions which he or she had to deliver pursuant to the framework criteria for the performance of judges, where [the president of the court] shall determine the result of judge's work according to the types of cases, in absolute numbers and in percentage,
2. whether a judge respected the time-limits within which he or she has to pronounce, prepare and send a decision, indicating whether the time-limits were fully respected or respected in more or less than 75% of the cases,
3. how many appeals were lodged against the first-instance decisions and what were the decisions delivered in the appellate proceedings ([that is whether the first-instance decisions were] upheld, quashed or reversed), in absolute numbers and in percentage, and how many decisions were quashed for serious procedural errors,
4. how many extraordinary remedies were lodged against the second-instance decisions ([that is whether the second-instance decisions were] upheld, quashed or reversed), in absolute numbers and in percentage terms.
If a judge did not deliver the number of decisions he or she had to deliver pursuant to the framework criteria for the performance of judges, because he or she was charged with exceptionally difficult and complex cases, it shall be assumed that he or she achieved the adequate result in his or her work, increased by 10%. That fact shall be stated in the operative provisions of the decision in which the president of the court determines the performance of the judge's duties.
Section 52b (1)
The circumstances from section 52 and 52 a of this Act shall be established for the preceding calendar year by the president of the court in a decision that has to be delivered at the latest by 28 February of the current year.
(1) A judge who is not satisfied with a decision of the president of the court may appeal against it within eight days of its service.
(2) The appeal shall be lodged with the president of the higher court through the president of the court which delivered the decision.
Section 73g (1)
A judge shall be relieved of the duty of president of the court if in the supervision of court administration it is established that:
1. the president of the court does not exercise his or her duties related to court administration in accordance with the applicable regulations or in timely fashion,
2. [he or she] breaches the rules governing assignment of cases, either directly or by failure to supervise,
3. [he or she], by breaching the applicable regulations or in some other way, violates the principle of judicial independence in the administration of justice,
4. [he or she] does not submit requests to institute disciplinary proceedings in cases prescribed by law.
4. The National Judicial Council Act
(2) Disciplinary offences are:
2. unjustified failure to exercise judicial duties, or failure to exercise them in timely fashion,
3. exercising service or activities, or doing business incompatible with judicial office,
(3) Disciplinary proceedings for an offence from paragraph 2 subparagraph 2 of this section shall be instituted in particular if:
- a judge, without justified reason, is not preparing and sending court decisions within the statutory time-limits,
- without justified reason, the number of decisions delivered [by a judge] in one year is below the average in the Republic of Croatia.
Section 24 (1)
If there is a reasonable suspicion that a judge has committed a disciplinary offence, the president of the court in which that judge exercised his or her duties is obliged to make a request that the disciplinary proceedings be instituted against [that judge].
(1) A judge shall be suspended from exercising his or her duties if criminal proceedings are instituted against him or her for a criminal offence punishable by more than five years' imprisonment, or while he or she is in detention.
(3) The decision on suspension in the case from paragraph 1 of this section shall be delivered by the president of the court.
5. The Court Rules
The internal operation of the court is separate from adjudication.
(1) The president of the court supervises the correct and timely discharge of all duties in the court.
(2) Supervision is effectuated through inspection of the work of court panels, single judges..., inspection of files, decision and decisions of higher courts..., review of the registration books..., supervision of the work of the court's central office...
Rule 9 (1)
1. The president of the court coordinates the work of court divisions and other organisational units in the court. When the president of the court notices inconsistent practices or practices contrary to existing regulations or departure from established case-law of higher courts in the operation of divisions, panels or single or investigation judges, he or she shall submit his or her observations for discussion at the meetings of judges.
Rule 33 (2) to (5)
(2) Cases are assigned to judges by the president of the court in courts having no divisions or by the president of a division in courts having divisions.
(3) Before assigning cases to judges, cases are listed in a chronological order...
(4) Cases are then assigned in alphabetical order of judges within the court or a division, taking into account the equal distribution of cases during the year, the type and complexity of cases. Second-instance cases are assigned in alphabetical order of the panel presidents, who then assign the cases in alphabetical order to the judges who are members of the panel.
(5) Should certain cases not be immediately assigned to judges, due to a backlog of cases or higher workload of judges, the president of the court or a division shall, pursuant to the criteria set forth in paragraphs 2 and 3 of this section, without delay assign those cases to judges.
(1) As an exception to the provision of Rule 33 of the Court Rules whereby a case had to be assigned to a certain judge, the case shall in the event of [his or her] objective indisposition be assigned to the judge in the court or a division [whose name is] next in the alphabetical order.
(2) The procedure prescribed in paragraph 1 of this section shall also apply to cases that have already been assigned to judges who are objectively indisposed from conducting the proceedings due to withdrawal, absence from work, particularly high workload or for other justified reasons, when this is necessary to ensure lawful and efficient operation of the court and the protection of the right of the parties to the administration of justice without undue delay.
Rule 43 (2)
The yearly holiday plan is determined by the president of the court after obtaining opinions of the organisational units of the court, bearing in mind the needs of service and the wishes of the employees.
C. The case-law of the Supreme Court on transfer of jurisdiction
1. Criminal cases
“... should be viewed in the light of the fact that the particular case concerns a working environment with a small number of employees, which inevitably leads to daily contact between them.”
2. Civil cases
(a) Cases involving the applicant
(b) Cases involving the Zlatar Municipal Court or the Zlatar County Court
(i) Cases in which requests for transfer of jurisdiction were granted
“Zlatar Municipal Court falls into the category of small courts. Its seat is in a small place [town] and it is common knowledge that the connection between people in institutions in small places and with a small number of employees is always stronger.”
(ii) Cases in which requests for transfer of jurisdiction were refused
(c) Civil cases involving a criminal complaint
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE EXCESSIVE LENGTH OF PROCEEDINGS
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair... hearing within a reasonable time by an ... impartial tribunal established by law.”
There has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE LACK OF IMPARTIALITY
1. The parties' arguments
(a) The Government
72. Third, the Government extensively cited the Supreme Court's case-law, which, in their view, demonstrated that transfer of jurisdiction was being granted only exceptionally, and when it was really justified, having regard to the fact that judges were independent and decided the cases according to the Constitution and laws. For example, the fact that one of the parties was the next of kin of any of the judges of a court in question was, in principle, assessed to be an important reason for transfer of jurisdiction. However, the Supreme Court had rejected requests for transfer of jurisdiction in situations when a party would refer to this fact only after becoming dissatisfied with court decisions (case no. Gr1 386/06). Neither was a subjective belief that judges were biased considered to be an important reason for transfer of jurisdiction, because judges were generally presumed to be objective and to follow the law when hearing cases (case no. Gr1 180/04). For the same reason, a request for transfer of jurisdiction alleging that one of the parties to the proceedings had been a judge acquainted with the judges of the court in question had been rejected (case no. Gr1-111/05). Furthermore, although the Supreme Court had granted many requests for transfer of jurisdiction when court employees were parties to the proceedings, it had rejected such requests in situations when the court at issue had been a large court with a large number of judges (case no. Gr1-804/03). Also, the Supreme Court had held in several cases that the fact that a party to the proceedings had filed a criminal complaint against one or all of the judges of the court in question or against its president was not a reason for transfer of jurisdiction (cases nos. Gr1-919/03, Gr1-851/03 and Gr7/1999).
73. Against that background, the Government noted that at the time when the first-instance civil proceedings for unjust enrichment had been instituted against the applicant before the Zlatar Municipal Court, as well as in the subsequent three years, M.M. was the president of the court. However, at that time the applicant had not asked for jurisdiction to be transferred to another court. Only in the appellate proceedings had she requested transfer of jurisdiction from the Zlatar County Court due to, inter alia, the alleged bias of its president, judge M.M. This conduct by the applicant had clearly been motivated by her dissatisfaction with the first-instance judgment, because she had not found it necessary to request transfer of jurisdiction to another court before the courts expressed certain legal views in the case.
74. Lastly, the Government pointed out that a long period of time (more than seven years) had elapsed between the time when the criminal complaint was filed against the applicant and the time when the applicant lodged her appeal with the Zlatar County Court. In this period, M.M. had not participated in the criminal proceedings in any way, nor was he informed about their outcome. Also, he had no personal interest in either the criminal or civil proceedings against the applicant. Therefore, the Government considered this another reason why there was no objectively justified fear that, after such a long time, M.M. would have had any bias towards the applicant in exercising his duties as president of the court.
75. In sum, the Government considered in the light of the foregoing that there were no objective reasons for the applicant to fear that the Zlatar County Court would not be impartial in the determination of her civil rights and obligations.
(b) The applicant
2. The Court's assessment
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
IV. 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
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 400 (four hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Croatian kunas at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 22 December 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Anatoly Kovler
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the partly dissenting opinion of Judge Jebens joined by Judge Spielmann is annexed to this judgment.
PARTLY DISSENTING OPINION OF JUDGE JEBENS JOINED BY JUDGE SPIELMANN