BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF JURIČIĆ v. CROATIA
(Application
no. 58222/09)
JUDGMENT
STRASBOURG
26 July 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 Juričić
v. Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Anatoly Kovler, President,
Nina
Vajić,
Elisabeth Steiner,
Khanlar
Hajiyev,
George Nicolaou,
Mirjana Lazarova
Trajkovska,
Julia Laffranque, judges,
and Søren Nielsen,
Section Registrar,
Having
deliberated in private on 5 July 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 58222/09) 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, Ms Mirjana Juričić
(“the applicant”), on 18 October 2009.
- The
applicant was represented by Mr V. Miljević, an advocate
practising in Zagreb. The Croatian Government (“the
Government”) were represented by their Agent, Mrs Š.
StaZnik.
- The
applicant alleged, in particular, that there had been a violation of
her right to a fair hearing.
- On
10 November 2010 the President of the First Section decided to give
notice to the Government of complaints concerning the equality of
arms, a lack of impartiality, and a lack of an oral, public and
adversarial hearing. 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 1954 and lives in Zagreb.
- On
26 February 2008 the Committee on the Constitution, Rules of
Procedure and Political System of the Croatian Parliament, (Hrvatski
Sabor – Odbor za Ustav, Poslovnik i politički sustav –
“the Parliamentary Committee”) published in the Official
Gazette (no. 26/2008 of 29 February 2008) a Call for Applications for
the Election of Three Judges to the Constitutional Court, inviting
prospective candidates to submit their applications.
- On
28 April 2008 the applicant, a judge of the Administrative Court,
submitted her application for the post of judge of the Constitutional
Court. Another eighteen candidates also submitted applications.
- The
Parliamentary Committee eventually compiled a shortlist of four
candidates, namely, Mr M.J., Mrs D.Š., Mrs S.B. and the
applicant, and submitted it to Parliament for a vote.
- After
a secret ballot in which the applicant received four of the required
77 votes, on 9 May 2008 Parliament adopted a decision electing
Mr M.J., Mrs D.Š. and Mrs S.B., who each received 78
votes, as judges of the Constitutional Court.
- On
26 May 2008 the applicant, relying on section 66 of the
Administrative Disputes Act (see paragraph 32 below), lodged a
request for the protection of a constitutionally guaranteed right
(zahtjev za zaštitu ustavom zajamčenog
prava) with the Administrative Court (Upravni sud
Republike Hrvatske) contesting Parliament's decision of 9 May
2008. She argued that S.B. had not proved that she had at least
fifteen years of professional experience and thus did not demonstrate
that she satisfied all the statutory criteria for election as a
Constitutional Court judge set forth in section 5(1) of the
Constitutional Court Act (see paragraph 25 below). Therefore, in the
applicant's view, by electing S.B. instead of her, Parliament had
breached her right to equality before the law, the right to equality
before the State and other public authorities, the right to equal
access to public service and the right to equal access to employment
guaranteed in Articles 14(2), 26, 44 and 54(2) of the Constitution
(see paragraph 23 below), respectively.
- On
26 June 2008 the Administrative Court invited M.J. and D.Š. to
submit their observations as third (interested) parties
(zainteresirane osobe). On 7 and 8 June 2008, respectively,
they replied that they considered the applicant's request unfounded
and that the election of the Constitutional Court's judges had been
in accordance with the law. They also stated that they did not
consider themselves third (interested) parties to the proceedings
because the applicant had not challenged their election.
- On
15 October 2008 the Administrative Court delivered a judgment whereby
it allowed the applicant's request and quashed Parliament's decision
of 9 May 2008 in its part concerning S.B. The court held that the
applicant was entitled to lodge her request even though that court's
judgment did not alter her legal status as unelected candidate. It
also held that from the evidence submitted by S.B. to the
Parliamentary Committee it could not be discerned whether she had the
required professional experience and that therefore the applicant's
right to equal access to public service and her right to equal access
to employment, guaranteed by Articles 44 and 54(2) of the
Constitution, had been breached by the contested decision.
- On
4 February 2009 S.B. lodged a constitutional complaint with the
Constitutional Court (Ustavni sud Republike Hrvatske) against
the Administrative Court's judgment. At the same time she asked the
Constitutional Court to order an interim measure that would postpone
the effects of the contested judgment until that court had decided on
her constitutional complaint. S.B. argued in her constitutional
complaint that the impugned judgment of the Administrative Court had
breached her right to equality before the law, the right to work and
the right to equal access to employment guaranteed in Articles 14(2)
and 54(1) and (2) of the Constitution (see paragraph 23 below),
respectively. She also argued that the election of the Constitutional
Court judges was a political rather than a legal issue. Therefore,
Parliament's decision of 9 May 2008 constituted a so-called act
of State (akt vladanja) in respect of which the scope of
constitutional review was limited to compliance with procedural rules
(that is, to formal constitutionality) and was thus very narrow. In
particular, she argued that the Administrative Court had not been
authorised to assess whether the evidence she had submitted had been
sufficient to prove that she had the required professional experience
and to question the Parliamentary Committee's findings in this
respect.
- On
the same day, the Constitutional Court, sitting in a plenary session
composed of ten judges (including judges M.J. and D.Š.),
ordered an interim measure postponing the effects of the
Administrative Court's judgment of 15 October 2008. In so doing
it held, inter alia, that:
“...the contested judgment [of the Administrative
Court] requires detailed examination of the limits and scope of
judicial review of decisions on appointment of State officials, ...,
and in that sense, has a wider importance that goes beyond the limits
of an individual case.”
The
decision on the interim measure was published in Official Gazette no.
16/2009 of 5 February 2009 but has never been served on the
applicant.
- On
13 February 2009 the Constitutional Court served the constitutional
complaint together with the request for an interim measure on the
applicant.
- On
18 February and 3 March 2009 S.B. supplemented her constitutional
complaint, alleging a violation of her right to a fair hearing
guaranteed by Article 29(1) of the Constitution. On 20 February and
5 March 2006, respectively, the Constitutional Court served the
two supplements on the applicant.
- On
7 March 2009 the applicant submitted her reply to S.B.'s
constitutional complaint and two days later to its supplements of
18 February and 3 March 2009. She argued that because the
election of the Constitutional Court judges was regulated by law, it
was not a political but primarily a legal issue. Consequently,
Parliament's decision of 9 May 2008 was not an “act of
State” and was therefore justiciable, that is, capable of being
challenged in legal proceedings. In any event, section 66 of the
Administrative Disputes Act entitled the Administrative Court to
review any individual decision capable of violating constitutional
rights, regardless of its nature or of whether it emanated from the
legislative or the executive branch of government. As regards S.B.'s
request for an interim measure, the applicant, after having remarked
that the Constitutional Court had granted it on the same day the
request had been made, argued that under section 67(2) the
Constitutional Court Act such a measure could not postpone “the
effects of a contested decision” but only its “enforcement”
(see paragraph 25 below). Lastly, the applicant asked the
Constitutional Court to “hold a public session (hearing)”
and invite her to attend it (“odrZi javnu
sjednicu (raspravu) na koju molim da me se pozove”).
- During
the proceedings, the Constitutional Court requested and obtained
observations from the Parliamentary Committee, expert opinions from
six law-faculty professors and two former judges of that court as
well as opinions and information from the Croatian National Bank, the
State Central Office for Administration, the Croatian Bar
Association, the Ministry of Justice, the State Bureau of Statistics
and a private bank Zagrebačka banka d.d.. The remaining nine law
faculty professors from whom the Constitutional Court also requested
expert opinions did not submit them. The attempt to obtain
information from the Danish Red Cross failed because the NGO in
question could not be found at the address indicated in the relevant
register.
- On
31 March 2009 the applicant wrote to the Constitutional Court asking
it to serve her with “the expert opinions requested (from
individuals and institutions)”, which she had found out about
from the media.
- On
30 April 2009 the Constitutional Court, sitting in a plenary
formation of ten judges (including judges M.J. and D.Š.),
held a session to which the applicant was not invited, and adopted a
decision whereby it quashed the Administrative Court's judgment of 15
October 2008. It held that the election of Constitutional Court
judges was a hybrid (political and legal) issue and that, even though
Parliament's decision of 9 May 2008 was “an act of State”,
the Administrative Court could have reviewed not only whether the
prescribed procedure had been followed but also whether the
candidates had satisfied the required statutory conditions.
Nevertheless, the Administrative Court had overstepped the bounds of
its jurisdiction when it had (re)assessed the evidentiary value of
the documents S.B. had furnished as proof that she had possessed the
required professional experience. By so doing the Administrative
Court had not only encroached on matters within the exclusive
jurisdiction of Parliament, but had also breached S.B.'s right to
work and her right to equal access to employment guaranteed by
Article 54(1) and (2) of the Constitution, as well as her right to
equality before the law guaranteed by Article 14(2) of the
Constitution.
- On
the same day, the President of the Constitutional Court and her
Deputy held a press conference at which they announced that the
Administrative Court's judgment of 15 October 2008 had been quashed,
that S.B. remained a judge of the Constitutional Court and that the
case would not be remitted to the Administrative Court in order to
“stop this agony”.
- On
4 May 2009 the Constitutional Court served its decision, together
with the opinions and information obtained during the proceedings, on
the applicant. On 5 June 2009 the decision of the Constitutional
Court was published in the Official Gazette (no. 65/2009).
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Constitution
1. Relevant provisions
- The
relevant provisions 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 14
“Everyone in the Republic of Croatia shall enjoy
rights and freedoms regardless of their race, colour, sex, language,
religion, political or other beliefs, national or social origin,
property, birth, education, social status or other characteristics.
All shall be equal before the law.”
Article 26
“All nationals of the Republic of Croatia and
foreigners shall be equal before the courts and other State or public
authorities.”
Article 29(1)
“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.”
Article 44
“Every national of the Republic of Croatia shall
have the right, under equal conditions, to take part in the conduct
of public affairs, and to be admitted to public service.”
Article 54
“Everyone shall have the right to work and enjoy
freedom of work.
Everyone shall be free to choose his or her vocation and
occupation, and every job or duty shall be accessible to everyone
under equal conditions.”
Article 125
“The Constitutional Court of the Republic of
Croatia shall consist of thirteen judges elected among eminent
lawyers, especially judges, State attorneys, advocates and university
professors of law, by the Croatian Parliament for a term of eight
years.
The Croatian Parliament's Committee on the Constitution
shall conduct proceedings related to candidatures for election to the
Constitutional Court of the Republic of Croatia and propose
candidates to the Croatian Parliament.
The Constitutional Court of the Republic of Croatia
shall elect its President for a term of four years.”
2. The case-law of the Administrative Court
- In
its judgment no. Zpa-5/2004-5 of 2 December 2004, following a request
for the protection of a constitutionally guaranteed right (see
paragraph 32 below) the Administrative Court quashed the decision of
the National Judicial Council on the appointment of a Municipal Court
judge. It held that every candidate satisfying the statutory
requirements had the right to equal participation in a competition
for public office. Therefore, by appointing a candidate who did not
satisfy the statutory requirements to be a judge of a Municipal
Court, the National Judicial Council had violated the other
candidate's constitutional right to equal access to public service
guaranteed by Article 44 of the Constitution (see the preceding
paragraph).
B. The Constitutional Court Act and related subordinate
legislation
1. The Constitutional Court Act
(a) Relevant provisions
- The
relevant part of the 1999 Constitutional Act on the Constitutional
Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu
Republike Hrvatske, Official Gazette of the Republic of Croatia
no. 99/1999 of 29 September 1999 – “the Constitutional
Court Act”), as amended by the 2002 Amendments (Ustavni
zakon o izmjenama i dopunama Ustavnog zakona o Ustavnom sudu
Republike Hrvatske, Official Gazette of the Republic of Croatia
no. 29/2002 of 22 March 2002), which entered into force on 15
March 2002, reads as follows:
II. CONDITIONS
FOR THE ELECTION OF THE CONSTITUTIONAL COURT JUDGES, [THEIR] ELECTION
AND TERMINATION OF THEIR OFFICE
Section 5
“(1) A Croatian national who
is a bachelor of laws with at least fifteen years of experience in
the legal profession, and who has become eminent in that profession
by virtue of his or her academic or professional work or his or her
public activities, may be elected as a judge of the Constitutional
Court.
(2) A person who has obtained a
doctoral degree in legal science and satisfies the other conditions
referred to in paragraph 1 of this section may be elected as a judge
of the Constitutional Court if he or she has at least twelve years of
experience in the legal profession.”
Section 6
“(1) The Croatian Parliament's Committee on the
Constitution (hereinafter: 'the competent committee') shall institute
the procedure for electing judges of the Constitutional Court by
publishing a call in the Official Gazette inviting judicial
institutions, law faculties, the Bar Association, lawyers'
associations, political parties and other legal entities and
individuals to nominate candidates for the election of one or more
judges of the Constitutional Court (hereinafter: 'the call'). An
individual may also put himself or herself forward as a candidate.
(2) The call shall set down the conditions for electing
a judge of the Constitutional Court set forth in the Constitution and
this Constitutional Act, the time-limit for submission of a
candidate's nomination to the competent committee, and the enclosures
to be delivered with the nomination.
(3) After the time-limit referred to in paragraph 2 of
this section expires, the competent committee shall examine whether
the candidates satisfy the conditions for being elected as judges of
the Constitutional Court set forth in the Constitution and this
Constitutional Act, and shall reject invalid candidatures.
(4) The competent committee shall hold a public
interview with each candidate who satisfies the conditions for being
elected as a judge of the Constitutional Court and shall, on the
basis of information collected and the results of the interviews,
compile a shortlist of candidates for judges of the Constitutional
Court. The shortlist shall, as a rule, comprise more candidates than
the number of judges ... who are to be elected.
(5) The competent committee shall submit to the
Croatian Parliament, together with its proposal, the list of all
candidates who satisfy the conditions for being elected as judges of
the Constitutional Court. The proposal of the competent committee
shall contain reasons showing why the committee gave a particular
candidate priority over other candidates.
(6) Representatives in the Croatian Parliament shall
vote individually for each proposed candidate.
(7) A candidate proposed for election to the
Constitutional Court shall be considered to have been elected as a
judge of the Constitutional Court if a majority of the total number
of representatives in the Croatian Parliament have voted for him.”
III. PROCEEDINGS
BEFORE THE CONSTITUTIONAL COURT – GENERAL PROVISIONS
Section 27(6)
“A judge of the Constitutional
Court may not abstain from voting, unless he has participated in the
enactment of a statute or subordinate legislation or the adoption of
a decision upon which the Constitutional Court is required to rule.”
Section 34
“Unless provided otherwise by this Constitutional
Act, in the proceedings before it the Constitutional Court shall
apply mutatis mutandis the provisions of the relevant
procedural laws of the Republic of Croatia as subsidiary rules.”
IV. REVIEW
OF THE CONSTITUTIONALITY OF STATUTES AND THE CONSTITUTIONALITY AND
LEGALITY OF SUBORDINATE LEGISLATION
Section 50
“(1) The Constitutional Court may, in
a [plenary] session, conclude to decide the merits [of a case] on the
basis of a public hearing.
(2) A public hearing shall be scheduled by
the President of the Constitutional Court.
(3) The participants in the proceedings and
the representatives of State authorities, local government and
associations, as well as [other] persons whose participation at the
public hearing is required, shall be summoned to the public hearing.
(4) The failure of the summoned participants
... and other summoned persons to attend [the hearing] shall not
prevent the Constitutional Court from continuing the proceedings and
reaching a decision, if it considers that the conditions for doing so
exist.
(5) In justified cases, the Constitutional
Court may postpone the public hearing and schedule a new one.”
V. PROTECTION OF HUMAN
RIGHTS AND FUNDAMENTAL FREEDOMS
Section 62
“(1) Anyone may lodge a constitutional complaint
with the Constitutional Court if he or she deems that the decision of
a State authority, local or regional government, or a legal person
vested with public authority, on his or her rights or obligations, or
as regards suspicion or accusation of a criminal offence, has
violated his or her human rights or fundamental freedoms, or the
right to local or regional government, guaranteed by the Constitution
('constitutional rights')...
(2) If another legal remedy is available in respect of
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] is available, remedies shall be considered
exhausted only after a decision on these legal remedies has been
given.”
Section 67
“(1) The constitutional complaint, as a rule,
does not prevent the application of the contested decision.
(2) The Constitutional Court may, at the request of the
complainant, postpone the enforcement [of the contested decision]
until it decided on the constitutional complaint, if the enforcement
would cause the complainant a harm that would be difficult to repair,
and the postponement is not contrary to the public interest nor would
cause greater harm to anyone.”
Section 68
“(1) A panel composed of six judges
shall decide on a constitutional complaint.
(2) ...
(3) The panel may only decide unanimously and
with all its members present.
(4) If the panel does not reach a unanimous
decision, or if the panel considers that the issue [raised in] the
constitutional complaint is of wider importance, the constitutional
complaint shall be decided by the [plenary] session of the
Constitutional Court.”
Section 69
“The judge rapporteur shall:
- ...
- serve, if need be, a copy of the constitutional
complaint to interested persons and invite them to respond to it,
...”
- Section
72 provides that, if a constitutional complaint is successful, the
Constitutional Court must quash the impugned decision and remit the
case to the competent authority.
(b) The Constitutional Court's practice
- On
8 April 2011 the Constitutional Court for the first time in its
history held a public hearing in the proceedings following an
individual constitutional complaint. The complainant Mr. P.T., who
had taught a denominational (Catholic) religious education course in
a public school, had been dismissed from his job because the Catholic
Church had revoked his canonical mandate of catechist after he had
remarried. The President of the Constitutional Court explained a
decision to hold a public hearing by saying that the Constitutional
Court's decision in that case “[went] beyond the limits of a
particular case” and “[would] mark future relations with
religious communities”.
2. The Constitutional Court Rules
- The
relevant provision of the Rules of the Constitutional Court
(Poslovnik Ustavnog suda Republike Hrvatske, Official Gazette
of the Republic of Croatia nos. 181/2003 and 30/2008 – “the
Constitutional Court Rules”) reads as follows:
Rule 31
“(1) In the proceedings
before the Constitutional Court ... a judge rapporteur is authorised
to:
....
4. seek expert opinions on particular cases from
jurisconsults of the Constitutional Court,
...”
C. The Administrative Disputes Act
- 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) in its relevant part provides as
follows:
- Section
34 reads as follows:
“The [Administrative Court] decides administrative
disputes in closed session.
The [Administrative 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.”
- Section
60 provides that if the Administrative Disputes Act does not contain
specific provisions on the procedure before the Administrative Court,
the provisions of the Civil Procedure Act should apply mutatis
mutandis.
- Section
66 reads as follows:
“A request for the protection of a
constitutionally guaranteed right or freedom ... if such a right or
freedom has been violated by a final individual act [that is,
decision], and no other judicial protection is secured, shall be
decided by the [Administrative Court], by applying mutatis
mutandis the provisions of this Act.”
D. The Civil Procedure Act
- The
relevant part 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)
provides as follows:
Section 71
“A judge ... shall be disqualified from exercising
his functions:
1. if he or she himself or herself is a party...;
...
5. if, in the same case, he or she participated in the
proceedings before a lower court or some other authority;
...
7. if other circumstances exist which cast doubt on his
or her impartiality.”
- The
grounds enumerated in section 71 subparagraphs 1-6 are considered
absolute grounds for withdrawal, in that the judge concerned is
automatically disqualified from sitting.
- Section
72(1) provides that, from the moment he or she becomes aware of an
absolute ground disqualifying him from sitting, the judge must take
no further part in the case and bring the circumstances which
disqualify him or her from sitting to the immediate attention of the
president of the court of which he or she is a member, whereupon the
president designates another judge to hear the case.
- Section
73(6) provides that the party has to make a request for withdrawal of
a judge as soon as he or she learns of a reason
for withdrawal and at the latest before the conclusion of the trial
before the first-instance court, or, if there was no trial, before
the decision is rendered.
- Section
73(7) provides that the withdrawal of a
judge of a higher court may be requested by the party in the legal
remedy or in the reply to the legal remedy.
- Section
74(1) reads as follows:
Section 74
“Unless the law provides otherwise, the party's
request for withdrawal [of a judge] shall be decided by the president
of the court.”
- Section
75 reads as follows:
Section 75
“When a single judge, the
president of the panel, a member of the panel or the president of the
court learns that his or her withdrawal has been requested, he shall
immediately stop all work on the case, and, if the withdrawal was
requested on the ground provided in section 71(1), subparagraph 7 of
this Act, he or she may, until a the request is decided, undertake
only those actions which entail the risk of a delay.”
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE UNFAIRNESS OF THE PROCEEDINGS
- The
applicant complained that the above-mentioned proceedings had not
been fair because: (a) a public hearing had not been held, (b) the
proceedings had not been adversarial and the principle of equality of
arms had not been respected in that the expert opinions of eminent
lawyers and opinions and information obtained from various
institutions by the Constitutional Court had been served on her only
after the proceedings had ended, and (c) the Constitutional Court had
not been impartial given that judges M.J. and D.Š. had sat in
the panel of that court that delivered the decision in her case even
though these two judges had acted as third parties in the previous
proceedings before the Administrative Court, in which they, inter
alia, had expressed their opinion that the election of the three
judges to the Constitutional Court had been lawful. The applicant
relied on Article 6 § 1 of the Convention, which
reads as follows:
“In the determination of his civil rights and
obligations ... 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
Government contested these arguments.
A. Admissibility
- The
Government disputed the admissibility of these complaints arguing
that Article 6 was inapplicable. In addition, they argued that the
applicant had failed to exhaust domestic remedies in respect of her
complaint concerning the alleged lack of impartiality.
1. Applicability
(a) The arguments of the parties
(i) The Government
- The
Government first referred to the Court's case-law according to which
Article 6 § 1 of the Convention was applicable to disputes over
civil “rights and obligations” which were, at least on
arguable grounds, recognised under domestic law (see James and
Others v. the United Kingdom, 21 February 1986, § 81, Series
A no. 98).
- In
that connection the Government first argued that in the Croatian
legal system there was no right to be elected as judge of the
Constitutional Court. Such a right was not recognised by the
Constitution, the Constitutional Court Act or any other domestic
legislation. In particular, the constitutional guarantee of equal
access to public service, provided for in Article 44 of the
Constitution (see paragraph 23 above), did not imply the right to be
admitted to public service, that is, to be appointed to the position
of a State official. It followed that the applicant could not have
had the right to be elected to the Constitutional Court.
- In
any event, the Government explained, a judge of the Constitutional
Court was one of the highest State officials who wielded a portion of
the State's sovereign power. The procedure for election of a
Constitutional Court judge thus did not involve determination of
“civil” rights and obligations within the meaning of
Article 6 § 1 of the Convention.
- The
Government further noted that the Administrative Court's judgment of
15 October 2008, by which it had quashed Parliament's decision of 9
May 2008, had not resulted in the applicant's election as judge of
the Constitutional Court instead of Mrs S.B. That was expressly
acknowledged by the Administrative Court itself, which in its
judgment stated that its ruling did not alter the applicant's legal
status as unelected candidate (see paragraph 12 above). Her
status would not have been altered even if the Constitutional Court
had upheld the Administrative Court's judgment. In that case the post
of Constitutional Court judge would have remained vacant. A new call
for applications would have been published and a new election
procedure conducted. For the Government, that meant that the
proceedings in question had not been directly decisive for the
applicant's “rights and obligations”.
- Lastly,
the Government submitted that under Croatian law there was no right
to challenge a decision of Parliament on the election of a
Constitutional Court judge either. Such a decision could only be
reviewed under section 66 of the Administrative Disputes Act (see
paragraph 32 above), if it was not in accordance with the
constitutionally guaranteed rights or freedoms. However, the right to
use that remedy had no features of private law and thus had no
elements which could make it akin to a “civil” right
required to render Article 6 applicable.
- Having
regard to the foregoing, the Government considered that Article 6 was
not applicable in the present case.
(ii) The applicant
- The
applicant conceded that in the Croatian legal system there was no
right to be elected as a judge of the Constitutional Court. However,
in the proceedings complained of she had attempted to protect her
constitutional right to equal access to the public service, as
guaranteed by Article 44 of the Constitution.
- She
further disagreed with the Government's argument that the proceedings
in question had not been directly decisive for her “rights and
obligations”. She explained that had the Constitutional Court
upheld the Administrative Court's judgment of 15 October 2008,
Parliament could either have decided to compile a new shortlist from
the candidates that had initially not been shortlisted, or publish a
new call for applications and initiate a new election procedure. In
either case she would have had a chance to run for the post again and
hope to be elected.
(b) The Court's assessment
- The
Court reiterates that Article 6 § 1 of the Convention secures
to everyone the right to have any claim relating to his civil rights
and obligations brought before a court or tribunal. The right
of access, namely the right to institute proceedings before a court
in civil matters, constitutes one aspect of this “right to a
court” (see, notably, Golder v. the United Kingdom, 21
February 1975, §§ 28-36, Series A no. 18). This right
extends only to “civil rights and obligations” which can
be said, at least on arguable grounds, to be recognised under
domestic law (see James and Others, cited above, § 81).
Therefore, in order to establish whether the civil head of Article 6
is applicable in the present case, and, consequently, whether the
applicant could rely on the guarantees of that Article, the Court
should first examine whether she had a “right” which
could arguably be said to be recognised under Croatian law, and
secondly whether that right was a “civil” one.
(i) Existence of a right
- The
Court notes in this connection that, according to the Administrative
Court's case-law, every candidate satisfying the statutory
requirements has the right to equal participation in a competition
for public office, which right is a corollary of the right to equal
access to the public service guaranteed by Article 44 of the
Constitution (see paragraph 24 above). It also notes that in the
present case the Administrative Court found in its judgment of 15
October 2008 that the applicant's constitutional rights to equal
access to the public service, and to equal access to employment, as
guaranteed by Articles 44 and 54(2) of the Croatian Constitution, had
been violated by S.B.'s election (see paragraph 12 above). While it
is true that the Administrative Court's judgment was subsequently
quashed following S.B.'s constitutional complaint, the Constitutional
Court in its decision of 30 April 2009 did not call into question the
applicant's entitlement to rely on those constitutional rights. In
these circumstances, the Court considers that the applicant had a
“right” which could arguably be said to be recognised
under Croatian law (see, for example, Kübler v. Germany,
no. 32715/06, § 46, 13 January 2011; Lombardi
Vallauri v. Italy, no. 39128/05, § 62, ECHR 2009 ...
(extracts), and Fiume v. Italy, no. 20774/05, § 35,
30 June 2009).
(ii) Civil nature of the right
- As
regards the “civil” nature of the right, the Court held
that the approach developed in the case of Vilho Eskelinen and
Others v. Finland ([GC], no. 63235/00, ECHR 2007 IV,
see paragraph 54 below) also applied to the right of access to public
office (see, notably, Kübler, cited above,
§ 45; and, implicitly, Josephides v. Cyprus,
no. 33761/02, § 54, 6 December 2007; Lombardi Vallauri,
cited above, § 62, and Penttinen v. Finland (dec.), no.
9125/07, 5 January 2010).
- Before
the judgment in the Vilho Eskelinen case, the Court held that
employment disputes between the authorities and public servants whose
duties typified the specific activities of the public service, in so
far as the latter was acting as the depositary of public authority
responsible for protecting the general interests of the State, were
not “civil” and were excluded from the scope of Article 6
§ 1 of the Convention (see Pellegrin v. France [GC], no.
28541/95, § 66, ECHR 1999 VIII). Likewise, employment
disputes involving posts in the judiciary were also excluded from the
scope of Article 6 § 1 because the judiciary, while not
being part of the ordinary civil service, was nonetheless considered
part of typical public service (see Pitkevich v. Russia
(dec.), no. 47936/99, 8 February 2001).
- In
the Vilho Eskelinen case the Court revisited the
applicability of Article 6 § 1 and held that it was for the
Contracting States, in particular the competent national legislature,
and 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. If a domestic system barred access to a court, the Court would
verify that the dispute was indeed such as to justify the
application of the exception to the guarantees of Article 6. If it
did not, then there was no issue and Article 6 § 1 would apply
(see Vilho Eskelinen and Others, cited above, § 61).
- Following
the Vilho Eskelinen case, the Court found Article 6 to be
applicable to disputes concerning payment of judges' salaries and
other benefits (see Petrova and Chornobryvets v. Ukraine, nos.
6360/04 and 16820/04, § 15, 15 May 2008) as well as to those
concerning their transfer (see Tosti v. Italy (dec.), no.
27791/06, 12 May 2009) and removal from office
(see Olujić v. Croatia, no. 22330/05, §§
31-44, 5 February 2009, and G. v. Finland, no. 33173/05,
§ 34, 27 January 2009), in cases where the domestic law allowed
access to a court to challenge relevant decisions. In this connection
the Court notes that Croatian law allows decisions of the Croatian
Parliament on the election of Constitutional Court judges to
be challenged before the judicial authorities
in so far as those decisions may be contrary to the constitutional
rights to equal access to the public service, and to equal
access to employment. In the present case the
applicant contested the impugned decision before the Administrative
Court by lodging a request for the protection of a
constitutionally guaranteed right under section 66 of the
Administrative Disputes Act (see paragraphs 10 and 32 above).
(iii) Conclusion
- In
the light of the foregoing, the Court finds that Article 6 of the
Convention under its civil head is applicable to the present case
(see, mutatis mutandis, Josephides, cited above, §
55; Penttinen, cited above; Kravchenko and Others (military
housing) v. Russia, nos. 11609/05, 12516/05, 17393/05, 20214/05,
25724/05, 32953/05, 1953/06, 10908/06, 16101/06, 26696/06, 40417/06,
44437/06, 44977/06, 46544/06, 50835/06, 22635/07, 36662/07, 36951/07,
38501/07, 54307/07, 22723/08, 36406/08 and 55990/08, § 23, 16
September 2010, and Kübler, cited above,
§ 46) and, consequently, that the applicant could
rely on the guarantees of that Article.
- It
follows that the Government's objection to the applicability of
Article 6 of the Convention must be dismissed.
2. Non-exhaustion of domestic remedies
(a) The arguments of the parties
- The
Government further argued that the applicant had failed to exhaust
domestic remedies in respect of her complaint concerning the alleged
lack of impartiality of the Constitutional Court, in that she had
never requested the withdrawal of judges M.J. and D.Š. In this
connection the Government pointed out that section 34 of the
Constitutional Court Act provided that in the proceedings before it
the Constitutional Court applied mutatis mutandis the
provisions of the relevant procedural laws as subsidiary rules (see
paragraph 25 above). Therefore, the applicant could have, relying on
sections 71 and 73 of the Civil Procedure Act (see paragraphs 33 and
36-38 above) taken in conjunction with section 60 of the
Administrative Disputes Act (see paragraph 31 above), requested
judges M.J. and D.Š. to withdraw. If the president of the
Constitutional Court were to find such a request well-founded, she
would have decided to exempt them from sitting in the applicant's
case. However, the applicant had not made such a request.
Furthermore, the Government averred that, contrary to the applicant's
arguments (see the next paragraph), she must or should have been
aware that judges M.J. and D.Š. would sit in her case because:
(a) the Constitutional Court regularly published decisions on the
composition of its two panels deciding on constitutional complaints
in the Official Gazette, and had published such a decision on 23 June
2008 from which it had been evident that judge D.Š. had been a
member of the first panel and judge M.J. of the second panel, (b) on
4 February 2009 the Constitutional Court had decided on S.B.'s
request for an interim measure – lodged simultaneously with her
constitutional complaint – sitting in a plenary session
including judges M.J. and D.Š. (see
paragraph 14 above), (c) that court's decision ordering an
interim measure had been published in the Official Gazette of
5 February 2009 (see paragraph 14 above), and (d) the
applicant herself had referred to that decision in her reply to
S.B.'s constitutional complaint (see paragraph 17 above).
- The
applicant argued that, before the Constitutional Court rendered its
decision of 30 April 2009, she had not known, nor could have known,
that judges M.J. and D.Š. would sit in the case. This was so
for two reasons. First, given that under section 68 of the
Constitutional Court Act that court, as a rule, decided on
constitutional complaints in a panel of six judges and only
exceptionally in a plenary session (see paragraph 25 above), she
could not have known in advance in what formation the Constitutional
Court would be sitting when deciding on S.B.'s constitutional
complaint. In fact, she could not even have imagined that judges M.J.
and D.Š. would sit in the case after having acted as
(third/interested) parties in the proceedings before the
Administrative Court and after having expressed their opinion that
her request had been unfounded and that the election of the
Constitutional Court judges had been in accordance with the law (see
paragraph 11 above). Rather, those judges should have been ex lege
disqualified from sitting. Second, given the lack of an oral and
public hearing, the applicant could not have requested judges M.J.
and D.Š. to withdraw before the decision had been taken.
(b) The Court's assessment
- The
Court first notes that the Croatian Constitutional Court has thirteen
judges (see paragraph 23 above). Their names are well known to the
general public, and even more so to legal professionals. It further
notes that section 68 of the Constitutional Court Act provides that
the Constitutional Court decides on constitutional complaints in a
plenary session if the panel of six judges does not reach a unanimous
decision, or if the panel considers that the issue raised in the
constitutional complaint is of wider importance (see paragraph 25
above). That being so, and given that the applicant's case stirred a
great deal of controversy and attracted wide media attention, the
Court considers that the applicant could have expected that the
Constitutional Court would decide S.B.'s constitutional complaint in
a plenary session.
- More
importantly, the Court notes that on 4 February 2009 the
Constitutional Court, sitting in a plenary session and including
judges M.J. and D.Š., ordered an
interim measure postponing the effects of the Administrative Court's
judgment of 15 October 2008 (see paragraph 14 above).
The Constitutional Court's decision on the interim measure was
published in the Official Gazette (see paragraph 14 above), was
widely reported in the media and the applicant referred to it in her
reply to S.B.'s constitutional complaint (see paragraph 17 above).
Therefore, even though it has never been served on her, the Court
considers that the applicant must have been aware of the decision in
question and of the composition of the Constitutional Court bench by
which it was taken.
- In
the light of the foregoing, the Court considers that it was not only
possible but very likely that S.B.'s constitutional complaint would
be decided in a plenary session of the Constitutional Court including
judges M.J. and D.Š., and that the applicant must have been
aware of that possibility, regrettable though it may be. In these
circumstances, the Court finds that the applicant should have
requested their withdrawal. However, she did not do so.
- It
follows that the applicant's complaint concerning the alleged lack of
impartiality is inadmissible under Article 35 § 1 of
the Convention for non-exhaustion of domestic remedies and must be
rejected pursuant to Article 35 § 4 thereof.
- The
Court further notes that the applicant's complaints concerning the
lack of a public hearing, the breach of the principle of equality of
arms and the right to an adversarial hearing are not manifestly
ill-founded, within the meaning of Article 35 § 3 (a) of the
Convention. It also notes that they are not inadmissible on any other
grounds. They must therefore be declared admissible.
B. Merits
1. Equality of arms and adversarial hearing
(a) The arguments of the parties
(i) The Government
- The
Government submitted that the principles of an adversarial hearing
and equality of arms, as developed in the Court's case-law, applied
only to parties to the proceedings. However, the applicant in the
present case had not been a party to the proceedings before the
Constitutional Court. This was so because the proceedings before the
Constitutional Court were sui generis proceedings in which
there were no two opposing parties but a complainant who contested a
decision of a judicial, administrative or other public authority
alleging that his or her constitutional rights had been violated. In
those proceedings, pursuant to section 69 of the Constitutional Court
Act, a copy of the constitutional complaint was sent to interested
persons and they were invited to respond to it only if necessary (see
paragraph 25 above).
- The
Government further argued that in the instant case no evidence had
been taken in the proceedings before the Constitutional Court on
which the applicant had not been able to make a statement, nor had
there been any oral hearing to which the applicant had not been
summoned. More importantly, S.B.'s constitutional complaint together
with all her written pleadings and evidence had been sent in due time
to the applicant as an interested person, to respond, and she had
done so on 7 March and 9 March 2009 (see paragraph 17 above).
Therefore, the fundamental requirement of an adversarial hearing,
that is, to send the pleadings of one party to the other and the
right to reply to them, had been respected in the Constitutional
Court proceedings.
- As
regards the expert opinions sought by the judge rapporteur under Rule
31 of the Constitutional Court Rules (see paragraph 28 above), the
Government explained that it was in that judge's discretion to seek
such opinions where he or she deemed that they would be helpful in
decision-making. Such opinions did not have any formal status or any
legal effect, and were not binding for anyone. Neither could they be
viewed as evidence (unlike, for example, reports and opinions of a
court's expert witnesses) or another party's pleadings. Therefore,
there was no obligation to send them either to a complainant or to an
interested person. The judge rapporteur was not obliged to
communicate them even to the other judges of the Constitutional
Court. To hold otherwise would mean that each time a court intended
to use an article from a law journal in its decision, it would have
to inform the parties thereof and give them a chance to submit their
comments. That being so, the expert opinions that the judge
rapporteur requested and obtained in the applicant's case had not
been sent to the complainant S.B., Parliament (whose decision had
been contested) or the applicant. Therefore, in a situation such as
that in the present case, where the applicant had been served with
all S.B.'s submissions and had been given an opportunity to comment
on them, the fact of not sending the expert opinions to any of the
participants in the proceedings, including the applicant, could not
be viewed as a breach of her right to an adversarial hearing or
contrary to the principle of equality of arms.
(ii) The applicant
- The
applicant first reiterated her complaint that the expert opinions of
eminent lawyers and opinions and information obtained from various
institutions in the Constitutional Court proceedings had been served
on her only after the proceedings had ended.
- She
then challenged the Government's argument that she had not been a
party to the proceedings before the Constitutional Court. In
particular, the applicant first wondered why S.B.'s constitutional
complaint and its supplements had been forwarded to her and why she
had been afforded a chance to respond to those submissions, if she
had not been a party to the proceedings before the Constitutional
Court. Furthermore, if the Government's contention was to be
accepted, that would mean that she had not been recognised as a party
to the proceedings (before the Constitutional Court) in which the
(Administrative Court's) judgment rendered in her favour had been
contested and eventually quashed. That would certainly have been
contrary to the basic principles of the rule of law.
- Lastly,
the applicant noted that the Constitutional Court had requested
information, inter alia, from the Croatian Bar Association, a
private bank Zagrebačka banka d.d. and the Danish Red Cross.
Given that S.B. had previously worked as an advocate's trainee as
well as for the bank and NGO in question, the applicant concluded
that the Constitutional Court must have been looking for evidence of
S.B.'s professional experience. In these circumstances it could not
be argued, as the Government had, that in the proceedings before the
Constitutional Court no evidence had been taken.
(b) 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 trial, 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). In the present case it is undisputed
that: (a) the expert opinions of eminent lawyers and opinions and
information obtained from various institutions by the Constitutional
Court were not communicated to either the applicant or S.B. prior to
that court's decision of 30 April 2009, and (b) that all S.B.'s
submissions in the proceedings before the Constitutional Court (the
constitutional complaint of 4 February 2009 and its supplements of
18 February and 3 March 2009) were forwarded to the applicant
and that she was given an opportunity to respond to them, of which
she availed herself. Accordingly, the Court finds that the principle
of equality of arms has not been breached in the present case (see,
for example and mutatis mutandis, Nideröst-Huber v.
Switzerland, 18 February 1997, § 23, Reports 1997 I,
and Krčmář and Others v. the Czech Republic,
no. 35376/97, § 39, 3 March 2000).
- However,
the Court further reiterates that the concept of a fair hearing also
implies the right to adversarial proceedings. That right means that
the parties to criminal or civil proceedings must in principle have
the opportunity not only to make known any evidence needed for their
claims to succeed, but also to have knowledge of, and comment on, all
evidence adduced or observations filed, with a view to influencing
the court's decision (see, for example, Lobo Machado v. Portugal,
20 February 1996, § 31, Reports 1996 I;
Vermeulen v. Belgium, 20 February 1996, § 33,
Reports 1996 I, and Krčmář and Others
v. the Czech Republic, no. 35376/97, § 40, 3 March
2000). This position is not altered when the observations are neutral
on the issue to be decided by the court or, in the opinion of the
court concerned, they do not present any fact or argument which has
not already appeared in the impugned decision (see Kukkonen v.
Finland, no. 57793/00, § 20, 7 June 2007, and Sharomov
v. Russia, no. 8927/02, §
44, 15 January 2009). Therefore, although the Court has not found a
breach of the principle of equality of arms (see the previous
paragraph), it nevertheless has to examine whether the same set of
facts breached the applicant's right to adversarial proceedings.
- The
Court notes that the main legal issue in the present case was the
scope of constitutional review of decisions on appointment of State
officials, in particular of Parliament's decision of 9 May 2008
on the election of three Constitutional Court judges. The main
factual issue in the instant case was whether S.B. had the required
professional experience to stand as a candidate for, and be elected
to, the office of judge of the Constitutional Court. For the Court,
it is evident that the Constitutional Court requested opinions from
eminent lawyers and various institutions in order to reach an
informed decision on the main legal issue it had to resolve, whereas
the information sought from the Croatian Bar Association, Zagrebačka
banka d.d. and the Danish Red Cross were requested in order to
establish the relevant facts, that is, with regard to S.B.'s
professional experience. Therefore, it cannot but be concluded that
those opinions and information were manifestly aimed at influencing
that court's decision (see, mutatis mutandis, Nideröst-Huber
v. Switzerland, 18 February 1997, § 26, Reports 1997 I,
and Krčmář and Others, cited above, §
41). In those circumstances, the Constitutional Court could have been
expected to observe strictly the principle of an adversarial hearing
as it was of paramount importance to give the applicant an
opportunity to comment on them (see, mutatis mutandis, Krčmář
and Others, cited above, § 41). However, those documents
were sent to the applicant only after the Constitutional Court had
adopted its decision of 30 April 2009, leaving her without any
opportunity to comment on them.
- In
any event, the Court reiterates that it is for the parties to a
dispute alone to say whether or not a document calls for their
comment. 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,
Nideröst-Huber, cited above, § 29; Beer v.
Austria, no. 30428/96, § 18, 6 February 2001; F.R. v.
Switzerland, no. 37292/97, § 40, 28 June 2001, and
Pellegrini v. Italy, no. 30882/96, § 45, ECHR 2001 VIII).
Thus they may legitimately expect to be consulted as to whether a
specific document requires their comments (see, Krčmář
and Others, cited above, § 43). It follows that, in the
present case it was for the applicant to assess whether the opinions
and information obtained by the Constitutional Court required her
comments. The onus was therefore on that court to afford the
applicant an opportunity to comment on those opinions and information
prior to its decision of 30 April 2009 (see, mutatis mutandis,
K.S. v. Finland, no. 29346/95, § 23, 31 May 2001, and
S.H. v. Finland, no. 28301/03, § 35, 29 July 2008).
- Having
regard to the requirements of the principle of an adversarial hearing
guaranteed by Article 6 § 1 of the Convention and to the role of
appearances in determining whether those requirements have been
complied with (see Komanický v. Slovakia, no. 32106/96,
§ 55, 4 June 2002), the Court finds that in the present case the
opinions and information obtained in the proceedings before the
Constitutional Court should have been notified to the applicant and
she should have been given the opportunity to comment on them.
- Given
that those opinions and information obtained in the Constitutional
Court proceedings were notified to the applicant only after the
proceedings before that court had ended, the foregoing considerations
are sufficient to enable the Court to conclude that the applicant's
right to an adversarial hearing was not respected in the proceedings
in question (see, mutatis mutandis, Milatová and
Others v. the Czech Republic, no. 61811/00, §§ 60-61
and 63-66, ECHR 2005 V).
- There
has accordingly been a violation of Article 6 § 1 in the
present case on account of the lack of an adversarial hearing.
2. Public hearing
(a) The arguments of the parties
(i) The Government
- The
Government pointed out that, according to the Court's case-law, the
obligation to hold a (public) hearing was not absolute. Most of the
cases in which no oral hearing had been held and where the Court had
found no violation of Article 6 were civil cases, in contrast to
criminal cases where the requirement to hold a public hearing was
more imperative. In particular, in the Jussila case the Court
held that: “the character of the circumstances that may justify
dispensing with an oral hearing essentially comes down to the nature
of the issues to be decided by the competent national court”
(see Jussila v. Finland [GC], no. 73053/01, § 42, ECHR
2006 XIII). Therefore, a (public) hearing was not required where
a tribunal was only called upon to decide on questions of law of no
particular complexity (see Valová, Slezák and Slezák
v. Slovakia, no. 44925/98, § 64, 1 June 2004), or in cases
that raised no questions of fact or law which could not be adequately
resolved on the basis of the case-file and the parties' written
observations (see Döry v. Sweden, no. 28394/95, §
37, 12 November 2002, and Pursiheimo v. Finland (dec.), no.
57795/00, 25 November 2003). Where cases were better dealt with in
writing than in oral argument, the Court had held that it was
“understandable that in this sphere the national authorities
should have regard to the demands of efficiency and economy”
(see Schuler-Zgraggen v. Switzerland, 24 June 1993, § 58,
Series A no. 263).
- The
Government further pointed out that the Constitutional Court Act in
its section 50 provided for a possibility of holding a public hearing
but only in the abstract constitutional review proceedings (see
paragraph 25 above), and that the Constitutional Court had held only
two public hearings since 1990. However, such a possibility was not
at all provided for in respect of the proceedings following an
individual constitutional complaint, and was therefore excluded.
Consequently, the applicant's request for an oral hearing could not
have been granted, and she, as a legal professional, must or should
have been aware of this.
- The
Government explained that the absence of hearings before the
Constitutional Court was the result of its special position in the
constitutional order of Croatia (it was not a regular court), but
also of the specific nature of the proceedings and remedies before
it. Moreover, the proceedings following individual constitutional
complaints involved exclusively legal issues and not the
establishment of facts. As in the present case, in such proceedings
the Constitutional Court decided on the basis of written pleadings
and documents furnished by complainants and interested persons and no
witness or expert witnesses were heard. Therefore, as the parties
would only have recapitulated what they had already stated in their
written pleadings, to hold a hearing in the proceedings following a
constitutional complaint would not have added to their fairness or
served any useful purpose. Rather, if a hearing were held just for
the sake of it, this would be in conflict with the principles of
economy and efficiency.
(ii) The applicant
- The
applicant replied that the fact that the Constitutional Court Act
expressly provided for a possibility of holding a public hearing only
in abstract constitutional review proceedings did not mean that
holding such a hearing in the proceedings following an individual
constitutional complaint was prohibited. In any event, the
Government's argument had been disproved by the practice of the
Constitutional Court, which on 8 April 2011 had held a public hearing
in proceedings instituted by the constitutional complaint of Mr P.T.
(see paragraph 27 above) and had invited him to attend it.
- The
applicant also argued that the election of the Constitutional Court
judges was an issue of wider public importance, which had been
demonstrated by the media attention that her case had attracted. For
the applicant, this in itself had been a sufficient reason to hold a
public hearing in her case.
(b) The Court's assessment
- The
Court reiterates that the public character of proceedings before the
judicial bodies referred to in Article 6 § 1
protects litigants against the administration of justice in secret
with no public scrutiny; it is also one of the means whereby
confidence in the courts, higher and lower, can be maintained. By
rendering the administration of justice visible, publicity
contributes to the achievement of the aim of Article 6 § 1,
namely a fair trial, the guarantee of which is one of the fundamental
principles of any democratic society, within the meaning of the
Convention (see, for example, Axen v. Germany, 8 December
1983, § 25, Series A no. 72; Pretto and Others v. Italy,
8 December 1983, § 21, Series A no. 71, and Martinie v.
France [GC], no. 58675/00, § 39, ECHR 2006 ...).
- The
Court further reiterates that the right to a public hearing generally
includes a right to an oral hearing (see, for example, Fischer v.
Austria, 26 April 1995, § 44, Series A no. 312, and
Döry, cited above, § 37).
- The
Court notes that in the present instance neither the Administrative
Court nor the Constitutional Court held a hearing in the applicant's
case. The Court therefore has to examine whether the lack of an oral
and public hearing in the present case contravened Article 6 § 1
of the Convention.
- In
this connection the Court first reiterates that the obligation to
hold a hearing is not absolute. For example, a hearing may be
dispensed with if a party unequivocally waives his or her right
thereto and there are no questions of public interest making a
hearing necessary. A waiver can be made explicitly or tacitly, in the
latter case for example by refraining from submitting or maintaining
a request for a hearing (see, for example, Döry, cited
above, § 37; Lundevall v. Sweden, no. 38629/97, §
34, 12 November 2002; Håkansson and Sturesson v. Sweden,
21 February 1990, Series A no. 171-A, § 66; and
Schuler-Zgraggen v. Switzerland, 24 June 1993, Series A
no. 263, § 58).
- 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 ask for an oral hearing to be held (see
paragraph 30 above). That being so, the applicant could have been
expected to request a hearing before that court if she attached
importance to it (see Döry, cited above, § 38,
and Lundevall, cited above, § 35). However, in her
request for the protection of a constitutionally guaranteed right
lodged with the Administrative Court on 26 May 2008 the applicant did
not ask for an oral hearing to be held. She has not submitted to the
Court any other evidence showing that she did so at any later stage
of the proceedings before the Administrative Court. The Court
therefore takes it as established that the applicant did not ask for
an oral hearing before the Administrative Court. It must therefore be
considered that she unequivocally waived her right to a hearing (see
Schuler-Zgraggen, cited above, § 58, Series A no. 263;
Zumtobel v. Austria, 21 September 1993, § 34,
Series A no. 268 A; Fischer, cited above, § 44,
Series A no. 312; Döry, cited above, § 38;
Lundevall, cited above, § 35; and Šikić v.
Croatia, no. 9143/08, § 29, 15 July 2010).
- It
remains to be determined whether, in these circumstances, the lack of
an oral hearing before the Constitutional Court involved a breach of
Article 6 § 1 of the Convention. In this connection, the Court
reiterates that in establishing whether the absence of a hearing
before a second or third instance court may be justified depends on
the special features of the proceedings at issue. Moreover, account
must be taken of the entirety of the proceedings in the domestic
legal order and of the role of such courts therein. Where the
proceedings before higher courts involve only questions of law, as
opposed to questions of fact, an oral and public hearing is generally
not required, provided that such a hearing was held or waived at
first instance (see, among many other authorities, Ekbatani v.
Sweden, 26 May 1988, §§ 27 and 31, Series A no.
134; Hermi v. Italy [GC], no. 18114/02, §§ 60-61,
ECHR 2006 XII, and Döry, cited above, § 40).
In applying these principles to Constitutional Courts the Court has
held that a hearing was normally not required in proceedings before
such courts because, having been limited to an examination of
constitutional issues, they had entailed an assessment not of points
of fact but of points of law (see, for example, Zippel v. Germany
(dec.), no. 30470/96, 23 October 1997; Siegl v. Austria (dec.),
no. 36075/97, 8
February 2000; Weh and Weh v. Austria (dec.),
no. 38544/97, 4 July 2002; Breierova and Others v. Czech Republic
(dec.), no. 57321/00, 8 October 2002; Milatová and Others,
cited above, § 62; Novotka v. Slovakia (dec.), no.
74459/01, 8 November 2005; Prischl v. Austria, no. 2881/04, §§
20-22, 26 April 2007; and, by contrast, Kugler v. Austria, no.
65631/01, §§ 47-53, 14 October
2010).
- The Government argued that the absence of a hearing
before the Constitutional Court in proceedings following an
individual constitutional complaint was justified by that court's
special role and the specific nature of the proceedings before it,
which involved exclusively legal issues and not the establishment of
facts (see paragraph 81 above).
- The
Court first notes in this connection that the present case concerned
alleged irregularities in the election of a Constitutional Court
judge and that the main legal issue was the scope of constitutional
review of decisions on appointment of State officials, in particular
of Parliament's decision of 9 May 2008. It is true, as already
noted above (see paragraph 74) that the Constitutional Court also
requested information on S.B.'s professional experience. However,
from the reasoning of its decision of 30 April 2009, in
particular from the finding that the Administrative Court had acted
ultra vires when it (re)assessed the evidentiary value of the
documents S.B. had furnished as proof of her professional experience
(see paragraph 20 above), it is clear that the Constitutional Court
ultimately did not ascertain or review facts or (re)assess evidence.
It follows that the proceedings before it were limited to an
examination of the above-mentioned constitutional issue, that is,
they entailed an assessment not of points of fact but exclusively of
points of law. What is more, in contrast to the Kugler case,
where the Court found a violation of Article 6 § 1 of the
Convention on account of the lack of a public hearing before the
Constitutional Court because the Administrative Court “had no
jurisdiction concerning the lawfulness of the area zoning plan”
and the Constitutional Court “was the only body which could
have determined this aspect of the dispute” (see Kugler,
cited above, §§ 50-53), in the
present case both the Administrative Court and the Constitutional
Court dealt with the same (constitutional) issue.
- Having
regard to the foregoing, the Court finds that in the circumstances
such as those in the present case where the applicant waived her
right to an oral and public hearing at first instance, Article 6 §
1 of the Convention does not require such a hearing to be held before
the higher court where that court is called upon to examine the same
questions of law as the first-instance court.
- There
has accordingly been no violation of Article 6 § 1 of the
Convention in the present case on account of the lack of an oral and
public hearing.
II. OTHER ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant further complained, also under Article 6 § 1 of the
Convention, about the outcome and the length of the above-mentioned
proceedings.
- In
so far as the applicant complains of the excessive length of the
above proceedings, the Court notes that they lasted less than a year,
during which period the case was examined at two levels of
jurisdiction. That being so, the Court considers, in the light of the
criteria established in its case-law on the question of “reasonable
time” (the complexity of the case, the applicant's conduct and
that of the competent authorities), and having regard to all the
information in its possession, that such a period cannot be
considered excessive. Consequently, the length of the proceedings in
the present case was not unreasonable.
- The
Court further reiterates that that it is unable to examine the
outcome of proceedings under Article 6 § 1 of the Convention
unless that outcome was arbitrary. In the light of all the material
in its possession, the Court considers that the present case
discloses no appearance of arbitrariness. The applicant was able to
submit her arguments before courts which addressed those arguments in
decisions that were duly reasoned and not arbitrary.
- It
follows that these complaints are inadmissible under
Article 35 § 3 (a) of the Convention as
manifestly ill-founded and must be rejected pursuant to
Article 35 § 4 thereof.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant also complained, without further substantiating this
complaint, that she had not had an effective remedy. She relied on
Article 13 of the Convention, which reads as follows:
“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 first notes that the applicant had a remedy by which to
challenge Parliament's decision of 9 May 2008, namely the possibility
of lodging a request for the protection of a constitutionally
guaranteed right, and that she successfully availed herself of that
remedy.
- To
the extent that the applicant may be understood to complain of the
absence of a remedy against the Constitutional Court's decision of
30 April 2009, the Court reiterates that where, as in the
instant case, the applicant alleges a violation of the rights
conferred by the Convention by the last-instance judicial authority
of the domestic legal system, the application of Article 13 is
implicitly restricted (see, mutatis mutandis, Times
Newspapers Ltd. and Andrew Neil v. the United Kingdom, no.
14644/89, Commission's report of 8 October 1991, Decisions and
Reports (DR) 73, p. 41 at p. 58, and Crociani et al. v. Italy,
nos. 8603/79, 8722/79, 8723/79 & 8729/79 (joined), Commission
decision of 18 December 1980, DR 22, p. 224, § 15).
Therefore, the absence of a remedy against the Constitutional Court's
decision does not raise an issue under Article 13 of the Convention
(see Wendenburg and Others v. Germany (dec.), no. 71630/01,
ECHR 2003 II).
- 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.
IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
- Lastly,
the applicant complained, also without further substantiating this
complaint, that she had been discriminated against. She relied on
Article 14 of the Convention, which reads as follows:
“The enjoyment of the rights and freedoms set
forth in [the] Convention 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.”
- The
Court considers this complaint wholly unsubstantiated as the
applicant provided no details whatsoever. It is therefore
inadmissible under Article 35 § 3 (a) of the
Convention as manifestly ill-founded and must be rejected pursuant to
Article 35 § 4 thereof.
V. 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 50,000 euros (EUR) in respect of pecuniary and
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. On
the other hand, it considers that a finding of a violation of Article
6 § 1 of the Convention constitutes in itself sufficient just
satisfaction in the circumstances for any non-pecuniary damage the
applicant might have sustained.
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 her any sum
under this head.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints concerning the lack of
an adversarial hearing and the lack of an oral and public hearing
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the lack of an adversarial
hearing;
- Holds that there has been no violation of
Article 6 § 1 of the Convention on account of the lack of an
oral and public hearing;
4. Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for any
non-pecuniary damage the applicant might have sustained;
5. Dismisses the applicant's claim for just
satisfaction.
Done in English, and notified in writing on 26 July 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Anatoly
Kovler
Registrar President
