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HRDALO v. CROATIA - 23272/07 [2011] ECHR 1454 (27 September 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1454.html
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[2011] ECHR 1454
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FIRST
SECTION
CASE OF HRDALO v. CROATIA
(Application
no. 23272/07)
JUDGMENT
STRASBOURG
27
September 2011
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 Hrdalo v. Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Anatoly
Kovler,
President,
Nina
Vajić,
Peer
Lorenzen,
Khanlar
Hajiyev,
Mirjana
Lazarova Trajkovska,
Julia
Laffranque,
Linos-Alexandre
Sicilianos,
judges,
and Søren Nielsen,
Section Registrar,
Having
deliberated in private on 6 September 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 23272/07) 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 Nikša Hrdalo
(“the applicant”), on 27 April 2007.
The
applicant was represented by Mr D. Orlić, an advocate practising
in Dubrovnik. The Croatian Government (“the Government”)
were represented by their Agent, Mrs Š. StaZnik.
The
applicant alleged, in particular, that in the administrative
proceedings concerning his removal from office the domestic
authorities had breached the principle of equality of arms, violated
his right to be presumed innocent and harmed his reputation.
On
9 February 2010 the President of the First Section decided to give
notice to the Government of the complaints concerning the alleged
unfairness of the administrative proceedings, presumption of
innocence and respect for private life. It was also decided to rule
on the admissibility and merits of the application at the same time
(Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1958 and lives in Dubrovnik.
A. The circumstances of the case
On 27 November 2003 the Government of Croatia appointed
the applicant Head of the Dubrovnik-Neretva County State
Administration Office with effect from 1 January 2004.
1. Criminal proceedings against the applicant
Meanwhile,
on 30 June 2002 the applicant’s neighbour Mrs I.Š.-H.
filed a criminal complaint against him with the police authorities in
Dubrovnik. She alleged that on 29 June 2002 the applicant had
demolished a separating wall erected between their backyards by her
husband and broken one of the windows of her house. In her statement
of 13 January 2003, Mrs I.Š.-H. added that during the incident
of 29 June 2002 the applicant had also shouted that she and her
family should come out so that he could kill them.
On
12 December 2003 the Metković
Municipal State Attorney’s Office (Općinsko drZavno
odvjetništvo u Metkoviću) indicted the applicant
before the Dubrovnik Municipal Court (Općinski
sud u Dubrovniku) accusing him of the criminal offences of
uttering threats and damaging another’s property, and invited
the court to issue a penal order in accordance with section 446 of
the Criminal Procedure Act (see paragraph 21 below).
On
18 December 2003 a single judge of the Dubrovnik Municipal Court
issued a penal order (kazneni nalog) against the applicant
under section 446 of the Criminal Procedure Act, finding him guilty
as charged and imposing a prison sentence of two months, suspended
for two years. The applicant was not informed of, and did not
participate in, those proceedings. The order was served on the
applicant on 3 January 2004.
On
9 January 2004 the applicant lodged an objection (prigovor)
against the penal order arguing that he had not committed the
criminal offences for which he had been convicted, and that he had
not been given an opportunity to defend himself and present evidence.
On
8 May 2006 the Dubrovnik Municipal Court set aside its penal order of
18 December 2003 and dropped the charges against the applicant under
section 353 of the Criminal Procedure Act without any further
explanation.
2. Administrative proceedings following the applicant’s
removal from office
Meanwhile,
by a decision of 17 March 2004 the Government of Croatia removed
the applicant from his position as Head of the Dubrovnik-Neretva
County State Administration Office on the grounds that he had been
found guilty of a criminal offence by the judgment of the Dubrovnik
Municipal Court of 18 December 2003. The decision reads as
follows:
D E C I S I O N
“Nikša Hrdalo is hereby relieved of his
duties as Head of the Dubrovnik-Neretva County State Administration
Office.
R e a s o n s
Section 52(3) of the State Administration System Act
provides that the heads of the regional offices of the State
administration are appointed and removed by the Government of Croatia
upon a proposal of the State secretary of the Central Public
Administration Office on the basis of a previously conducted public
competition.
By a decision of the Government of Croatia ... of 27
November 2003 Nikša Hrdalo was appointed Head of the
Dubrovnik-Neretva County State Administration Office.
By judgment no. K 386/03 of the Dubrovnik Municipal
Court of 18 December 2003, Nikša Hrdalo was found guilty of a
criminal offence against the rights and freedoms of man and the
citizen defined in Article 129 § 2 of the Criminal Code and
classified as uttering threats, in conjunction with a criminal
offence against property defined in Article 222 § 1 of the
Criminal Code and classified as damaging another’s property.
[As a consequence, he] received ... a prison sentence of two months
and fifteen days, suspended for two years.
Having regard to foregoing, the State secretary of the
Central Public Administration Office considered that keeping Nikša
Hrdalo as Head of the Dubrovnik-Neretva County State Administration
Office could harm the probity of the civil service.
In accordance with the above, the State secretary of the
Central Public Administration Office proposed that the Government of
Croatia relieve Nikša Hrdalo of his duties as Head of the
Dubrovnik-Neretva County State Administration Office. The Government
of Croatia accepted this proposal.
That being so, it was decided as indicated in the
operative part.”
The
operative part of the decision was published in the Official Gazette
of the Republic of Croatia no. 36/2004 of 22 March 2004.
On
18 March 2004 the daily newspaper Slobodna Dalmacija reporting
from the Government’s meeting of 17 March 2004, reported
on the applicant’s removal from office. A small article
entitled “Removals and appointments [Razrješenja i
imenovanja]” in its relevant part read as follows:
“In Dubrovnik-Neretva County the Government
relieved Nikša Hrdalo, the incumbent Head of the State
Administration Office, of his duties. ... Nikša Hrdalo was
relieved of his duties because of a non-final judgment imposing a ...
prison sentence of two months and fifteen days, suspended for two
years, for a criminal offence against a freedom of man.”
On
31 March 2004 the same daily published an article entitled “Removed
because of a non-existent ‘judgment’ [Smijenjen zbog
nepostojeće presude]?”, which described the
circumstances surrounding the applicant’s removal from office
and gave him the opportunity to present his view.
On
20 April 2004 the applicant brought an administrative action in
Administrative Court against the Government of Croatia challenging
the decision on his removal.
On
24 June 2004 the Government of Croatia submitted their reply to the
applicant’s action. That reply was not forwarded to the
applicant. The relevant part of the Government of Croatia’s
reply read as follows:
“...The decision which is the subject of this
administrative dispute does not disclose any breach of law raised by
the plaintiff. The decision to relieve Nikša
Hrdalo of his duties as Head of the Dubrovnik-Neretva County
State Administration Office was adopted in accordance with section
52(3) of the State Administration System Act. ...
It is undisputed that, by
judgment no. K 386/03 of the Dubrovnik Municipal Court of 18 December
2003, Nikša Hrdalo was found guilty of a criminal offence
against the rights and freedoms of man and the citizen –
uttering threats – defined in Article 129 § 2 of the
Criminal Code, in conjunction with a criminal offence against
property – damaging another’s property – defined in
Article 222 § 1 of the Criminal Code, and that he received ... a
prison sentence of two months and fifteen days, suspended for two
years.
The plaintiff argues that the present case concerns a
penal order issued in accordance with section [446] of the Criminal
Procedure Act, to which he objected within the statutory time-limit,
and that therefore there is no final judgment [against him] which
could constitute an impediment to recruitment to the civil service
set out in section 8 of the Civil Servants Act.
However, the plaintiff ignores the fact that his removal
from office was not owing to the existence of impediments to
recruitment to the civil service set out in section 8 of the Civil
Servants Act. The discovery that, at the time of recruitment to the
civil service or at the time of appointment to the position of Head
of the Dubrovnik-Neretva County State Administration Office, an
impediment set out in section 8 of the Civil Servants Act
had existed, would have resulted in the termination of employment in
the civil service by operation of law, pursuant to section 118 ... of
the Civil Servants Act. However, the present case does not concern
such circumstances or the termination of employment in the civil
service. Rather, [it concerns] the plaintiff’s removal from his
position as Head of the State Administration Office ..., where the
impugned decision is not based on impediments to recruitment to the
civil service but on circumstances concerning the plaintiff which
were considered liable to ... harm the probity of the State
Administration Office and the entire civil service. Criminal
proceedings pending against a head of a State administration office
may give a negative impression to the public and arouse suspicion as
regards the diligent and lawful conduct of those employed in the
State administration office run by such a person.
The plaintiff contests the right of the Government of
Croatia to remove a head of [a State administration] office at their
own discretion ...
Contrary to the plaintiff’s argument, we consider
that the Government of Croatia are entitled to remove a head of a
State administration office at their own discretion because that is
undoubtedly provided for by section 52 of the State Administration
System Act. ...
Given that the contested decision was adopted in the
procedure and in the manner prescribed by law, and that grounds ...
for quashing or declaring [it] null and void do not exist, we propose
that the Administrative Court dismiss the action as unfounded.”
On
15 September 2004 the Administrative Court dismissed the
applicant’s action finding that the contested decision of 17
March 2004 had been based on section 30(4) of the Government of
Croatia Act (see paragraph 23 below) and section 52(3) of the State
Administration System Act (see paragraph 22 below). The relevant part
of the Administrative Court judgment reads as follows:
“... the said laws indisputably show that the
Government of the Republic of Croatia ... are entitled to remove a
head of a State administration office ... at their own discretion ...
... in the reasoning for their decision, the defendant
authority [that is, the Government of Croatia] ... stated the
circumstances which influenced that decision. In particular, having
regard to the complaints submitted about the plaintiff’s work,
and the fact that criminal proceedings are pending against him before
the Dubrovnik Municipal Court ... for a criminal offence against the
rights and freedoms of man and the citizen (the criminal offence of
uttering threats defined in Article 129 § 2 of the Criminal
Code), in conjunction with a criminal offence against property (the
criminal offence of damaging another’s property defined in
Article 222 § 1 of the Criminal Code), the State secretary of
the Central Public Administration Office in its proposal ... of
15 March 2004 considered that the plaintiff should be relieved
of [his] duties as Head of the State Administration Office because
keeping him in that position could harm the probity of the civil
service. That proposal was accepted by the defendant authority which,
at the session held on 17 March 2004, adopted a decision on his
removal. Contrary to the plaintiff’s arguments, by doing so
[the defendant authority] did not examine ... whether his [career in
the] civil service should be terminated pursuant to section 118 of
the Civil Servants Act, in which case it should be taken into account
whether or not a civil servant had been convicted by a final judgment
of a criminal offence against the rights and freedoms of man and the
citizen. However, pending criminal proceedings for such a criminal
offence, or even the adoption of a non-final judgment, may, given the
position of the head of a State administration office, harm the
probity of the office run by such a person and the entire civil
service. Namely, the conduct of the plaintiff which led to the
institution of those criminal proceedings, and its negative
connotations in the public perspective, harms his personal reputation
and may arouse suspicion among citizens as regards the diligent and
lawful operation of the State administration office run by such a
person.”
On
15 January 2005 the applicant lodged a constitutional complaint
against the Administrative Court’s judgment alleging violations
of, inter alia, his constitutional rights to a fair hearing,
presumption of innocence, and respect for his dignity, reputation and
honour. He argued that he had been removed from office on the basis
of a non-final conviction secured in criminal proceedings of which he
had not been aware and in which he had not had the opportunity to
participate.
On
12 October 2006 the Constitutional Court (Ustavni sud Republike
Hrvatske) dismissed the applicant’s complaint and served
its decision on him on 29 November 2006. The relevant part of that
decision reads as follows:
“The complainant further alleges a violation of
Article 28 of the Constitution which provides that everyone shall be
[presumed] innocent and no one may consider him guilty of a criminal
offence until his guilt has been established by a final court
judgement.
The contested judgment was not delivered in proceedings
in which the complainant’s guilt was being determined, but [in
proceedings] where the lawfulness of [an] administrative decision ...
was examined.
The Constitutional Court therefore finds that the
complainant’s [right] provided for in Article 28 of the
Constitution has not been breached by the contested judgment.
...
The complainant also alleges a violation of Article 35
of the Constitution, which guarantees to everyone respect for, and
legal protection of, his personal and family life, dignity,
reputation and honour.
The Constitutional Court finds that the complainant’s
[right] provided for in Article 35 of the Constitution had not been
breached by the contested judgment because that judgment and the
prior decision were rendered in lawfully conducted proceedings and
are based on relevant legislation.”
II. RELEVANT DOMESTIC LAW
A. The Constitution
The
relevant Articles of the Constitution of the Republic of Croatia
(Ustav Republike Hrvatske, Official Gazette of the Republic of
Croatia nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000,
124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated
text), 55/2001 (corrigendum) and 76/2010) read as follows:
Article 28
“Everyone shall be [presumed] innocent and no one
may consider him guilty of a criminal offence until his guilt has
been established by a final court judgement.”
Article 35
“Everyone shall be guaranteed respect for, and
legal protection of, his personal and family life, dignity,
reputation and honour.”
B. The Criminal Procedure Act
The
relevant part of the Criminal Procedure Act (Official Gazette of the
Republic of Croatia nos. 110/1997, 27/1998 (corrigendum), 58/1999,
112/1999, 58/2002, 143/2002 (corrigendum), 62/2003 (consolidated
text) and 115/2006), which was in force between 1 January 1998 and 1
January 2009, reads as follows:
Section 353
A judgment dismissing the charges shall be adopted in
the event that:
1) the court has no jurisdiction in the matter;
2) the proceedings were conducted without having been
requested by an authorised prosecutor;
3) the prosecutor dropped the charges during the trial;
4) the required request or consent for prosecution has
not been provided, or the authorised person or State body has
withdrawn the request or consent;
5) the defendant has already been finally convicted or
acquitted in respect of the offence in issue or the criminal
proceedings against him or her have been terminated ...;
6) the defendant is exempt from criminal prosecution
owing to amnesty or pardon, or if criminal prosecution has become
barred owing to statutory limitation or the existence of other
circumstances excluding criminal prosecution.”
Section 446
“In respect of criminal offences under the
competence of a single judge and where the State Attorney has learned
of a criminal offence from a reliable criminal complaint, he or she
may ask in an indictment that a court issue a penal order (kazneni
nalog) whereby the court shall impose on the defendant a sentence
or an alternative measure without holding a trial.
...”
C. The State Administration System Act
The
relevant provision of the State Administration System Act (Zakon o
sustavu drZavne uprave, Official Gazette of the Republic
of Croatia nos. 75/1993, 48/1999, 15/2000, 59/2001, 190/2003
(consolidated text), 199/2003 and 79/2007), as in force at the
material time, read as follows:
Section 52(3)
“The head of the regional State administration
office is appointed and removed by the Government of Croatia upon a
proposal of the State secretary responsible for public administration
on the basis of a previously conducted public competition.”
D. The Government of Croatia Act
The
relevant provision of the Act on the Government of the Republic of
Croatia (Zakon o Vladi Republike
Hrvatske, Official Gazette nos. 101/1998, 15/2000,
117/2001, 199/2003 and 77/2009 – “the Government of
Croatia Act”), which entered into force on 5 August 1998, reads
as follows:
Section 30(4)
“A decision (rješenje) shall be
adopted on appointments or dismissals or other individual matters
within the Government’s purview.”
E. The Civil Servants Act
The
Civil Servants Act (Zakon o drZavnim
sluZbenicima i namještenicima, Official Gazette no.
27/2001) was in force between 30 March 2001 and 1 January 2006.
Section
8(1) set out impediments to recruitment to the civil service and
provided that such an impediment existed in respect of a person who
had been convicted by a final judgment for, inter alia, a
criminal offence against the rights and freedoms of man and the
citizen, or a criminal offence against property.
Section
118 provided that a civil servant’s employment was to be
terminated by operation of law, inter alia, when the judgment
by which he or she had been convicted for a criminal offence referred
to in section 8(1) of the same Act became final, or when it was
discovered that an impediment referred to in the same section had
existed at the time of recruitment.
F. The Administrative Disputes Act
Sections
52-59 of the Administrative Disputes Act (Zakon o upravnim
sporovima, Official Gazette of the Socialist Federal
Republic of Yugoslavia no. 4/1977, and Official Gazette of the
Republic of Croatia nos. 53/1991, 9/1992 and 77/1992) provide for the
remedy of reopening of proceedings before the Administrative Court
and regulate the procedure following a petition for reopening. In
particular, section 52 reads as follows:
“Proceedings ... shall be reopened upon a
petition by a party:
1) if the party learns of new facts or discovers, or
gains the opportunity to use, new evidence on the basis of which the
dispute would have been resolved more favourably for him or her had
these facts or evidence been presented or used in the previous court
proceedings;
...
3) if the decision was based on a judgement rendered in
a criminal or civil case and that judgement was later set aside by
another final court decision;
...
A reopening shall be allowed on the grounds set forth in
subsections (1) and (5) of this section, only if the party was
unable, through no fault of his or her own, to raise these grounds in
the previous proceedings.”
Section 60 provides that if the Administrative Disputes Act does not
contain specific provisions on procedure before the Administrative
Court (that is, in administrative disputes), the provisions of the
Civil Procedure Act should apply mutatis mutandis.
G. The Civil Procedure Act
The
relevant provision of the Civil Procedure Act (Zakon o parničnom
postupku, Official Gazette of the Socialist Federal Republic of
Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980, 69/1982,
58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991, and Official
Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 58/1993,
112/1999, 88/2001, 117/2003, 88/2005, 2/2007, 84/2008 and 123/2008)
reads as follows:
5.a. Reopening of proceedings following a
final judgment of the European Court of Human Rights in Strasbourg
finding a violation of a fundamental human right or freedom
Section 428a
“(1) When the European Court of Human Rights has
found a violation of a human right or fundamental freedom guaranteed
by the Convention for the Protection of Human Rights and Fundamental
Freedoms or additional Protocols thereto ratified by the Republic of
Croatia, a party may, within thirty days of the judgment of the
European Court of Human Rights becoming final, file a petition with
the court in the Republic of Croatia which adjudicated in the
first-instance in the proceedings in which the decision violating the
human right or fundamental freedom was rendered, to set aside the
decision by which the human right or fundamental freedom was
violated.
(2) The proceedings referred to in paragraph (1) of this
section shall be conducted by applying, mutatis mutandis, the
provisions on the reopening of proceedings.
(3) In the reopened proceedings the courts are required
to respect the legal opinions expressed in the final judgment of the
European Court of Human Rights finding a violation of a fundamental
human right or freedom.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that the above administrative proceedings
concerning his removal from office had been unfair. In particular, he
complained that the Government of Croatia’s reply of 24 June
2004 to his administrative action of 20 April 2004 had never been
served on him and that therefore he had not had an opportunity to
comment on it. He relied on Article 6 § 1 of the Convention, the
relevant part of which reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
The
Government contested that argument.
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded, within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The arguments of the parties
The
Government averred that the proceedings had been fair. The applicant
had been granted access to court as his case had been examined by
both the Administrative Court and the Constitutional Court, which
were both independent and impartial courts established by law. The
Administrative Court had conducted the proceedings within a
reasonable time and in accordance with the relevant procedural law.
That court had addressed all the arguments presented by both the
applicant and the Government of Croatia, and rendered a reasoned
judgment based on the legislation in force. In particular, the
Government argued that the principle of equality of arms had also
been respected in the applicant’s case and that he had had the
opportunity to present his arguments to the Administrative Court
under the same conditions as the opposing party.
The
applicant maintained his position that he had not had an opportunity
to respond to the arguments raised in the Government of Croatia’s
reply to his administrative action as that reply had never been
served on him.
2. The Court’s assessment
The
Court reiterates that the principle of equality of arms, which is one
of the elements of the broader concept of a fair hearing, requires
each party to be given a reasonable opportunity to present its case
under conditions that do not place it at a substantial disadvantage
vis-à-vis its opponent (see, among many other
authorities, Dombo Beheer B.V. v. the Netherlands, 27 October
1993, § 33, Series A no. 274, and Ankerl v. Switzerland,
23 October 1996, § 38, Reports of Judgments and Decisions
1996 V). Each party must be given the opportunity to have
knowledge of and comment on the observations filed or evidence
adduced by the other party (see, for example, Ruiz-Mateos v.
Spain, 23 June 1993, § 63, Series A no. 262, and
Wynen v. Belgium, no. 32576/96, § 32, ECHR 2002 VIII).
Turning
to the present case, the Court first notes that on 24 June 2004 the
Government of Croatia, being the opposing party (the defendant) in
the administrative proceedings at issue, submitted a reply to the
applicant’s action in the Administrative Court of 20 April
2004, requesting that the action be dismissed (see paragraph 16
above). It is not contested that this reply was not forwarded to the
applicant and that he had no opportunity to comment on it.
The
Government of Croatia’s reply contained a reasoned opinion on
the merits of the applicant’s action. The Court has repeatedly
held that in such a situation the effect which the observations
actually had on the judgment is of little consequence (see
Steck-Risch and Others v. Liechtenstein, no. 63151/00, §
57, 19 May 2005) because it is for the parties to a dispute to state
whether or not a document calls for their comments (see Ziegler v.
Switzerland, no. 33499/96, § 38, 21 February 2002).
What is particularly at stake here is the litigants’ confidence
in the workings of justice, which is based on, inter alia, the
knowledge that they have had the opportunity to express their views
on every document in the file (see, for example, Ziegler,
cited above).
What
is more, the Government of Croatia did not confine themselves in
their reply to restating the reasons given in the decision the
applicant was contesting by his action. Rather, they advanced new
arguments in support of their decision, in reply to those raised by
the applicant in his action. For example, the Government of Croatia
argued that they had been entitled to remove the applicant from
office at their own discretion and that in doing so they had been
entitled to rely on the non-final judgment convicting him of a
criminal offence since the case had not concerned the termination of
his employment in the civil service but his removal from office (see
paragraph 16 above). The Administrative Court relied on those (new)
arguments raised by the Government of Croatia in their reply and even
incorporated them in its judgment of 15 September 2004
dismissing the applicant’s action (see paragraph 17 above). It
was therefore all the more needful to give the applicant an
opportunity to comment on them if he had wished to do so.
It
follows that in the present case, respect for the right to a fair
hearing, guaranteed by Article 6 § 1 of the Convention, required
that the applicant be given an opportunity to have knowledge of and
to comment on the reply submitted by the opposing party, namely the
Government of Croatia (see Steck-Risch and Others, cited
above, § 58). However, the applicant was not afforded this
opportunity. This deficiency was not remedied by the fact that the
applicant could and did complain to the Constitutional Court, as the
latter does not carry out a full review of the case (see Steck-Risch
and Others, cited above, § 56).
The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see, for example, Ziegler, cited above, §§
33-40; Steck-Risch and Others, cited above, §§
51-59; Bartenbach v. Austria, no. 39120/03, §§
32-34, 20 March 2008; and Schaller-Bossert v. Switzerland,
no. 41718/05, §§ 39-43, 28 October
2010). Having examined all the material submitted to
it, the Court considers that the Government have not put forward any
fact or argument capable of persuading it to reach a different
conclusion in the present case.
There
has accordingly been a violation of Article 6 § 1 of the
Convention in the instant case on account of the breach of the
principle of equality of arms.
II. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE
CONVENTION
The
applicant further complained that, by referring in the
above-mentioned administrative proceedings to the pending criminal
proceedings against him and the non-final conviction of 18 December
2003 as grounds for his removal from office, the domestic authorities
had violated his right to be presumed innocent. He relied on Article
6 § 2 of the Convention, which reads as follows:
“Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law.”
The
Government disputed the admissibility of this complaint on two
grounds. They argued that the applicant had failed to exhaust
domestic remedies and that, in any event, the complaint was
manifestly ill-founded.
1. Non-exhaustion of domestic remedies
(a) The arguments of the parties
The
Government submitted that, after the Dubrovnik Municipal Court had on
8 May 2006 set aside its penal order of 18 December 2003 and dropped
the charges against the applicant, he could have filed a petition for
the reopening of the proceedings before the Administrative Court
relying on section 52 of the Administrative Disputes Act.
The
applicant replied that a petition for the reopening of proceedings
was an extraordinary legal remedy which he had not been obliged to
exhaust.
(b) The Court’s assessment
The
Court reiterates that according to its established case-law, a
petition for the reopening of proceedings does not, as a rule,
constitute an effective remedy for the purposes of Article 35 §
1 of the Convention (see Riedl-Riedenstein and Others v. Germany
(dec.), no. 48662/99, 22 January 2002; Babinsky
v. Slovakia (dec.), no. 35833/97, 11 January 2000;
and Uskela v. Sweden, no. 10537/83, Commission decision of 10
October 1985, Decisions and Reports (DR) 44, p. 98). Even though
there are exceptions to that rule (see, for example, Kiiskinen and
Kovalainen v. Finland (dec.), no. 26323/95, 1 June 1999; Nikula
v. Finland (dec.), no. 31611/96, 30 November 2000; and K.S.
and K.S. AG v. Switzerland, no. 19117/91, Commission
decision of 12 January 1994), the Court does not find it necessary to
examine whether in the present case there were any special
circumstances that would justify departure from the general rule. For
the Court it is sufficient to note that in its judgment of
15 September 2004 the Administrative Court held that the mere
institution of criminal proceedings and existence of a non-final
judgment against the applicant were sufficient to justify his removal
from office. That being so, the Court does not see how the fact that
the Dubrovnik Municipal Court had on 8 May 2006 set aside its penal
order of 18 December 2003 and dropped the charges against the
applicant, would have lead to a different outcome of the proceedings
before the Administrative Court.
It
follows that the Government’s objection of failure to exhaust
domestic remedies must be dismissed.
2. Whether the complaint is manifestly ill-founded
(a) The arguments of the parties
(i) The Government
The
Government argued that the proceedings complained of had not involved
the determination of a criminal charge against the applicant but
concerned a review of the lawfulness of the Government of Croatia’s
decision of 17 March 2004. In those proceedings the issue had
been the applicant’s removal from office on the basis of the
Government of Croatia’s discretionary power to appoint and
remove State officials and not his termination of employment in the
civil service on account of the commission of a criminal offence.
After his removal from his position of Head of the Dubrovnik-Neretva
County State Administration Office the applicant had remained in the
civil service and had been transferred to another position.
Therefore, the applicant’s right to be presumed innocent had
not been called into question in those proceedings.
The
Government pointed out that during the proceedings before the
domestic authorities, as well as in the proceedings before the Court,
the applicant had wrongly spoken of his dismissal being due to the
commission of a criminal offence and referred to section 118 taken in
conjunction with section 8(1) of the Civil Servants Act (see
paragraphs 25 and 26 above). As already explained above (see the
preceding paragraph), the Government emphasised that the applicant’s
case had not concerned the termination of the applicant’s
career in the civil service owing to the commission of a criminal
offence. Had it been so, the presumption of the applicant’s
innocence would have been the crucial factor in a decision to dismiss
him. Furthermore, if the domestic authorities had considered him
guilty of a criminal offence he would not have been able to remain in
the civil service, let alone be transferred to another position,
because his service would have been terminated by operation of law.
Rather, the applicant had been removed from his position of Head of
the Dubrovnik-Neretva County State Administration Office on the basis
of section 52(3) of the State Administration System Act because the
Government of Croatia had considered, within its discretionary
powers, that the mere institution of criminal proceedings against him
and the adoption of a non-final judgment of 18 December 2003 were
circumstances which could harm the probity of the civil service by
casting doubt on the diligent and lawful operation of the State
administration office he had been running.
(ii) The applicant
The
applicant admitted that the domestic authorities had never expressly
stated that he had committed a criminal offence. However, they had
repeatedly mentioned that the mere institution of criminal
proceedings against him and the adoption of the non-final judgment of
18 December 2003 had been enough to justify his removal from
office. For the applicant, such reasoning was sufficient to violate
his presumption of innocence.
(b) The Court’s assessment
The
Court reiterates that the presumption of innocence will be violated
if a judicial decision or a statement by a public official concerning
a person charged with a criminal offence reflects an opinion that he
is guilty before he has been proved guilty according to law. It
suffices, even in the absence of any formal finding, that there is
some reasoning suggesting that the court or the official regards the
accused as guilty (see, for example, Böhmer v. Germany,
no. 37568/97, § 54, 3 October 2002). A fundamental distinction
must be made between a statement that someone is merely suspected of
having committed a crime and a clear declaration, in the absence of a
final conviction, that an individual has committed the crime in
question (see, for example, Peša v. Croatia, no.
40523/08, § 141, 8 April 2010).
The
Court notes at the outset that on 12 December 2003 criminal
proceedings were instituted against the applicant on counts of
uttering threats and damaging another’s property, and that on
18 December 2003 the Dubrovnik Municipal Court issued a penal order
finding him guilty as charged and imposing a suspended prison
sentence (see paragraphs 8 and 9 above). It further notes that on 8
May 2006 the same court set aside its penal order, dropped the
charges against the applicant and discontinued the criminal
proceedings against him (see paragraph 11 above). 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 Court further reiterates that the scope of Article
6 § 2 is not limited to pending criminal proceedings, but may
extend to judicial decisions taken after the discontinuation of such
proceedings or following an acquittal, in so far as the issues raised
in these cases are a consequence of and concomitant to the criminal
proceedings concerned, in which the applicant was the “accused”
(see Moullet v. France (no. 2) (dec.), no. 27521/04, ECHR
2007 X, and the cases cited therein). The scope of Article 6 § 2
thus also extends to various administrative proceedings conducted
simultaneously with the criminal proceedings against an applicant or
after the conclusion of criminal proceedings ending without a
decision finding the accused guilty in so far as there are such links
between the criminal proceedings and the parallel administrative
proceedings as to justify extending the scope of Article 6 § 2
to cover the latter (see Vassilios Stavropoulos v. Greece, no.
35522/04, 27 September 2007; Paraponiaris v. Greece, no.
42132/06, 25 September 2008, and Çelik (Bozkurt) v. Turkey,
no. 34388/05, 12 April 2011).
The
Court considers that in the present case the reliance of the domestic
authorities in the above administrative proceedings on the pending
criminal proceedings against the applicant and his non-final
conviction as reasons justifying his removal from office created a
“link” between the criminal and the administrative
proceedings, which justifies the extension of the scope of Article 6
§ 2 to cover the latter (see, mutatis mutandis, Çelik
(Bozkurt), cited above, § 34).
The
further issue to be determined in the present case is whether in the
above administrative proceedings the domestic authorities, by their
conduct, the reasons given for their decisions or the language used
in their reasoning, cast doubt on the applicant’s innocence and
thus undermined the principle of the presumption of innocence, as
guaranteed by Article 6 § 2 of the Convention (see Vassilios
Stavropoulos, cited above, § 37). The Court reiterates that
one of the functions of Article 6 § 2 is to protect an acquitted
person’s reputation from statements or acts that follow an
acquittal which would seem to undermine it (see Taliadorou and
Stylianou v. Cyprus, nos. 39627/05 and 39631/05, §
26, 16 October 2008).
In
this connection the Court notes that both the Government of Croatia
and the Administrative Court justified the applicant’s removal
from office by arguing that the mere institution of criminal
proceedings and the existence of a non-final conviction for a
criminal offence could be viewed negatively in the eyes of the public
and thus damage the probity of the civil service in general (see
paragraphs 12, 16 and 17 above).
The Court considers that there is nothing in the
language used that would call his innocence into question. Neither
the decision of 17 March 2004 nor the judgment of 15 September 2004
states or implies that the applicant was criminally liable for the
offences with which he had been charged in the above criminal
proceedings. Therefore, in the absence of any express or implied
indication which could undermine the applicant’s innocence,
there is nothing to suggest that the decisions of the domestic
authorities in the present case reflect the opinion that the
applicant was guilty of those offences or of any other criminal
offence.
It
follows that this complaint is inadmissible under Article 35 §
3 (a) of the Convention as manifestly ill-founded and must be
rejected pursuant to Article 35 § 4 thereof.
III. OTHER ALLEGED VIOLATIONS OF ARTICLE 6 OF THE
CONVENTION
The
applicant also complained, without further substantiating these
complaints, of a violation of his rights under Article 6 § 3 (a)
and (b) of the Convention, which reads as follows:
“3. Everyone charged with a criminal
offence has the following minimum rights:
(a) to be informed promptly, in a language
which he understands and in detail, of the nature and cause of the
accusation against him;
(b) to have adequate time and facilities for
the preparation of his defence;
...”
The
Court notes that the above criminal proceedings ended in the
applicant’s favour as on 8 May 2006 the Dubrovnik Municipal
Court set aside its penal order of 18 December 2003 and dropped the
charges against him (see paragraph 11 above). In these circumstances,
the applicant cannot claim to be a victim of violations of Article 6
§ 3 of the Convention in respect of those proceedings (see,
mutatis mutandis, Doubtfire v. the United Kingdom
(dec.), no. 31825/96, 23 April 2002). It follows that, in so far
as they concern the above criminal proceedings, these complaints are
inadmissible and must be rejected pursuant to Article 35 §§
3 (a) and 4 of the Convention.
The
Court further notes that the above administrative proceedings were
not criminal in nature and that Article 6 § 3 is therefore not
applicable. It follows that, to the extent that these complaints
concern the above administrative proceedings, they are inadmissible
under Article 35 § 3 (a) of the Convention and must be rejected
pursuant to Article 35 § 4 thereof.
IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicant also complained that, by referring in the decision of
17 March 2004 – which had been reported in the media –
to his non-final conviction of 18 December 2003 as a ground for his
removal from office, the domestic authorities had harmed his
reputation. He relied on Article 8 of the Convention, which reads as
follows:
“1. Everyone has the right to respect
for his private ... life ...
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
The
Government disputed the admissibility of this complaint on three
grounds. They argued that the applicant had failed to exhaust
domestic remedies, that Article 8 was inapplicable and that, in any
event, the complaint was manifestly ill-founded.
1. Non-exhaustion of domestic remedies
The
Government and the applicant both relied on the arguments summarised
in paragraphs 43-44 above.
The
Court refers to its findings under Article 6 § 2 of the
Convention (see paragraphs 45-46 above), which apply with equal force
to the complaint made in the context of Article 8 of the Convention.
It
follows that the Government’s objection of failure to exhaust
domestic remedies must be dismissed.
2. Applicability
(a) The arguments of the parties
The
Government argued that the right to work and employment, let alone
the right to hold a certain office, were not rights covered by
Article 8 of the Convention. Nor did the Convention provide
for the right to employment in the civil service.
The
applicant did not comment on this issue.
(b) The Court’s assessment
The
Court reiterates that “private life” is a broad term not
susceptible to exhaustive definition (see Niemietz v. Germany,
16 December 1992, § 29, Series A no. 251 B), and
that individuals’ right to reputation is an element of their
“private life” protected under Article 8 of the
Convention (see, for example, Chauvy and Others v. France,
no. 64915/01, § 70, ECHR 2004 VI; Pfeifer v. Austria,
no. 12556/03, § 38, ECHR 2007 XII; and Petrina v.
Romania, no. 78060/01, § 28, 14 October 2008).
For
the Court, there is no doubt that, even if an
accused person is acquitted, the fact of standing trial itself has
serious implications for the accused and may cause damage to his or
her reputation.
Furthermore,
the Court has previously held that an administrative dismissal may,
in certain circumstances (for example, in situations where the
applicant was never convicted of the commission of the offences in
relation to which he was dismissed), constitute an interference with
the rights guaranteed by Article 8 of the Convention when it affects
the enjoyment of an individual’s “private life” by
effectively prejudicing his or her moral and psychological integrity
and reputation (see Kyriakides v. Cyprus, no. 39058/05, §
52, 16 October 2008, and Taliadorou and Stylianou, cited
above, § 56).
However,
the Court also reiterates that in order for Article 8 to come into
play, the attack on personal honour and reputation must attain a
certain level of gravity and in a manner causing prejudice
to personal enjoyment of the right to respect for private life
(see A. v. Norway, no. 28070/06, § 64, 9 April
2009).
Nevertheless,
the Court considers that in the present case it may leave open the
issue whether the damage to the applicant’s reputation, caused
by the fact that the decision on his removal from office referred to
his prior non-final conviction, was of such a gravity to bring
Article 8 into play. This is so because this complaint is in any
event inadmissible for the reasons set out below.
3. Whether the complaint is manifestly ill-founded
(a) The arguments of the parties
(i) The Government
The
Government submitted that that there had been no interference with
the applicant’s right to respect for his private life. Although
removed from his office, the applicant had not lost his job in the
civil service, but had been transferred to another post. In their
view, his reputation could not have been harmed by the decision on
removal, or the subsequent judgements of the Administrative Court and
the Constitutional Court. Indeed, there was nothing to indicate that
the applicant’s removal from office had any effect on his
private life. Lastly, the Government emphasised that the applicant
had held the post of Head of the State Administration Office for only
a little more than two months, which was a relatively short period of
time to build a professional reputation in a service of that kind.
If
the Court were to find that there had been an interference with the
applicant’s right to respect for his private life, the
Government averred that this interference had been lawful, that it
pursued a legitimate aim and had been necessary in a democratic
society.
The
interference had been lawful because it had been based on the State
Administration System Act and the Government Act. It pursued the
legitimate aim of protecting the reputation of the civil service and
maintaining public confidence in the functioning of the institutions.
The interference in question had been necessary in a democratic
society because there had been no other way of achieving those
legitimate aims.
(ii) The applicant
The
applicant reiterated that his reputation had been tarnished because
the text of the decision on his removal from office of 17 March
2004 – which in its reasoning cited the operative provisions of
the penal order against him of 18 December 2003 – had been
reported in the media.
(b) The Court’s assessment
Even
assuming that in the present case the applicant’s removal from
office on account of his non-final conviction harmed his reputation
to such a degree that it constituted an interference with his right
to respect for his private life, the Court considers that this
interference was prescribed by law as it was based on section 52(3)
of the State Administration System Act (see paragraph 22 above).
It
further accepts that the interference in the present case pursued the
legitimate aim as it intended to protect the reputation or rights of
others, namely the probity of the civil service (see Pay v. the
United Kingdom (dec.), no. 32792/05, 16 September 2008).
As
to the proportionality of the interference, the Court agrees that
persons appointed to a public office must enjoy public confidence,
and that this confidence may be undermined by the mere suspicion that
the person in question has committed a criminal offence. It further
notes that under Croatian law the Government of Croatia have the
power to appoint and remove heads of regional State administration
offices at their own discretion. That being so, and given the fact
that the applicant in the present case was not dismissed from, but
transferred to another post within the civil service, the Court
considers that his removal from his position as Head of the
Dubrovnik-Neretva County State Administration Office on account of
his non-final conviction of 18 December 2003 was not disproportionate
to the legitimate aim pursued by that interference.
It
follows that this complaint is inadmissible under Article 35 § 3 (a)
of the Convention as manifestly ill-founded and must be rejected
pursuant to Article 35 § 4 thereof.
V. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 12 TO
THE CONVENTION
Lastly,
the applicant complained that he had been discriminated against on
account of his political affiliation. He explained that he was a
member of the Social Democratic Party and that his removal from
office had been orchestrated by the Croatian Democratic Union after
that party had won parliamentary elections in November 2003. He
relied on Article 1 of Protocol No. 12 to the Convention, which reads
as follows:
“1. The enjoyment of any right set
forth by law shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status.
2. No one shall be discriminated against by
any public authority on any ground such as those mentioned in
paragraph 1.”
The
Court notes that the applicant claimed that his removal from office
had been motivated by his political affiliation with the Social
Democratic Party. That being so, the interference which in the
applicant’s view lead to his discriminatory treatment occurred
at the moment of his removal from office. This happened on 17 March
2004 when the Government of Croatia adopted the decision on his
removal (see, mutatis mutandis, Jovanović v. Croatia
(dec.), no. 59109/00, ECHR 2002-III). However, this was before 1
April 2005, the date of entry into force of Protocol No. 12. The
subsequent proceedings before the Administrative Court and the
Constitutional Court are to be seen as the exercise of available
domestic remedies aimed at redressing the interference, which cannot
bring it within the Court’s temporal jurisdiction (see Blečić
v. Croatia [GC], no. 59532/00, § 77, ECHR 2006 III).
It
follows that this complaint is incompatible ratione temporis with
the provisions of the Convention within the meaning of Article 35
§ 3 (a) and must be rejected pursuant to Article 35 §
4.
VI. 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 2,320,610.60 Croatian kunas (HRK) in respect of
pecuniary damage sustained on account of loss of earnings. He
expressly stated that he did not claim any non-pecuniary damage.
The
Government contested that claim.
The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
Furthermore,
as the applicant did not submit any claim in respect of non-pecuniary
damage, the Court considers that there is no call to award him any
sum on that account.
B. Costs and expenses
The
applicant did not submit any claim for costs and expenses incurred in
the proceedings before the domestic courts or before this Court. The
Court therefore considers that there is no call to award him any sum
on that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint concerning the breach of
the principle of equality of arms admissible and the remainder of the
application inadmissible;
Holds that there has been a violation of Article
6 § 1 of the Convention;
Dismisses the applicant’s claim for just
satisfaction.
Done in English, and notified in writing on 27 September 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Anatoly
Kovler
Registrar President