FIRST SECTION
CASE OF MALIĆ v. CROATIA
(Application no. 8402/17)
JUDGMENT
STRASBOURG
22 April 2021
This judgment is final but it may be subject to editorial revision.
In the case of Malić v. Croatia,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Krzysztof Wojtyczek, President,
Erik Wennerström,
Lorraine Schembri Orland, judges,
and Attila Teplán, Acting Deputy Section Registrar,
Having regard to:
the application (no. 8402/17) 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 Karlo Malić (“the applicant”), on 20 January 2017;
the decision to give notice to the Croatian Government (“the Government”) of the complaint concerning alleged lack of impartiality of a tribunal and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 23 March 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application concerns the alleged lack of impartiality of a second‑instance court judge, whose husband had been employed with the respondent in the applicant’s case.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
2. The applicant was born in 1958 and lives in Pula. He was represented by Mr E. Kulenović, a lawyer practising in Pula.
3. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
4. On 16 February 1998, the applicant lodged a civil action with the Pula Municipal Court (Općinski sud u Puli) against the Pula Township to establish ownership by adverse possession and issue the statement of consent to registration (tabularna isprava).
5. Following several remittals and ultimately reopening of the proceedings, on 21 September 2012 the Pula Municipal Court allowed the applicant’s claim in part.
6. On 3 February 2014 the Pula County Court, sitting as a panel of judges M.Š., president, M.T.S., judge rapporteur, and I.R., allowed the respondent’s appeal and dismissed the applicant’s claim in its entirety.
7. On 21 March 2014 the applicant lodged an extraordinary appeal on points of law (revizija) complaining, inter alia, about the fact that Judge M.T.S. had acted as judge rapporteur in his case, whereas her husband, D.S., had been employed by the respondent Pula Township as the head of their Information Technology (IT) Division within the Department of Finance and General Administration. He relied on a previous decision of the Supreme Court, in which it had quashed a judgment where the president of an appeal panel had participated in deciding a case represented by a lawyer for which her son had been employed as a trainee.
8. In its response, the respondent explained that D.S. was an IT engineer and in no way connected to the tasks related to legal representation of the Pula Township. It added that the Pula Township’s administration had 186 employees and that IT personnel did not perform any administrative tasks.
9. On 10 March 2015 the Supreme Court (Vrhovni sud Republike Hrvatske) declared the applicant’s appeal on points of law inadmissible. With regard to the applicant’s complaint concerning lack of impartiality, it stated that its previous decision the applicant had relied on was not applicable in his case since it did not concern the same or similar factual situation.
10. On 14 July 2016 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s constitutional complaint finding, inter alia, that:
“... the circumstances detailed by the applicant in the present case do not in themselves raise doubt as to the impartiality of the second-instance judge.”
RELEVANT LEGAL FRAMEWORK
11. Relevant domestic law and practice have been summarised in Ramljak v. Croatia (no. 5856/13, §§ 13-21, 27 June 2017).
THE LAWALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
12. The applicant complained that the Pula County Court had not been impartial because of the participation of Judge M.T.S. on the appeal bench. He 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 ... hearing ... by an independent and impartial tribunal established by law.”Admissibility
13. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.MeritsThe parties’ arguments
14. The applicant argued that the financial subsistence of Judge M.T.S.’s family depended on the Pula Township. Had his case been decided in his favour, the judge’s husband might have been dismissed from work or prevented from advancing in his career, which would have had serious consequences for their family. Judge M.T.S. could therefore not be impartial in deciding his case.
15. The Government maintained that the applicant’s complaint was far‑fetched. Judge M.T.S.’s husband was an engineer working as the head of the IT department of the Pula Township and was in no way connected to the tasks of legal representation of that entity before the domestic courts. He was a public servant and his employment enjoyed higher job certainty so he could not be dismissed. There was therefore no evidence that Judge M.T.S. had been in any sort of subordinate position in relation to the respondent in the proceedings. Finally, the Government pointed out that the applicant’s complaint concerning lack of impartiality had been examined in detail by both the Supreme Court and the Constitutional Court.The Court’s assessment
16. The relevant Convention principles concerning impartiality of tribunals have been summarised in Morice v. France ([GC], no. 29369/10, §§ 73-78, 23 April 2015).
17. The Court observes at the outset that the applicant did not claim, and there is nothing to indicate, any personal bias on the part of Judge M.T.S. It therefore considers that her personal partiality is not at issue in the present case and that, consequently, its task is to assess whether the applicant’s doubts as to her lack of impartiality may be regarded as objectively justified.
18. In this connection even appearances may be of a certain importance or, in other words, “justice must not only be done, it must also be seen to be done”. What is at stake is the confidence which the courts in a democratic society must inspire in the public.
19. Judge M.T.S. sat in the three-judge panel of the Pula County Court deciding the applicant’s case and his misgivings about her lack of impartiality lay in the fact that her husband was at the material time employed with the respondent Pula Township. While an automatic disqualification of all judges at national level who have personal ties with the employees of the parties in given proceedings was not always called for (compare Dorozhko and Pozhaskiy v. Estonia, nos. 14659/04 and 16855/04, § 53, 24 April 2008), the nature of those personal links is of importance when determining whether the applicant’s fears were objectively justified (see Micallef v. Malta [GC], no. 17056/06, § 102, ECHR 2009; Mitrov v. the former Yugoslav Republic of Macedonia, no. 45959/09, § 54, 2 June 2016; and Ramljak v. Croatia, no. 5856/13, 27 June 2017).
20. The Court considers the following factors to be of importance in assessing the question of whether there was a lack of objective impartiality on the part of Judge M.T.S.
21. Firstly, Judge M.T.S. could not have been unaware of the fact that her husband was employed with the Pula Township as a party in the proceedings at issue (compare Dorozhko and Pozhaski, cited above, § 56). However, nothing in the case file shows that she informed the president of the court of those circumstances in accordance with section 72 of the Civil Procedure Act (see paragraph 11 above). Had she done so, all issues concerning her participation in the case would have been addressed before the appeal had been decided by the appeal court (compare Ramljak, cited above, § 33).
22. Secondly, the Court accepts that Judge M.T.S.’s husband did not personally represent the applicant’s opponent. However, he was at the material time the head of the IT Division of the Pula Township and as such he undoubtedly had close working ties with the respondent and was in a position of subordination in that he was receiving a salary from that entity.
23. Thirdly, although it is not possible to ascertain the exact influence of Judge M.T.S. on the outcome of the appeal lodged by the Pula Township, since the Pula County Court decided the case in a closed sitting, the Court notes that Judge M.T.S. had been the judge rapporteur in the applicant’s case. Given the importance of appearances, it cannot be said that the applicant had no grounds to believe that she had played an important role in delivering the judgment to his detriment; and the impartiality of the Pula County Court was thus open to genuine doubt (compare Morice, cited above, § 89). The Court moreover notes that the Pula County Court has fifteen judges in its Civil Division, and that there is no indication of any practical difficulties in finding a substitute for Judge M.T.S. among the other judges (compare Golubović v. Croatia, no. 43947/10, § 58, 27 November 2012; see also Steck-Risch and Others v. Liechtenstein, no. 63151/00, § 39, 19 May 2005).
24. In sum, the Court considers that a close relative like the husband of a judge adjudicating a civil case at the appeal stage having such close working ties with the applicant’s opponent in the civil proceedings complained of might have compromised the Pula County Court’s impartiality and made it open to doubt.
25. Finally, although the applicant was not in a position to seek the withdrawal of Judge M.T.S. prior to the delivery of the appeal court’s judgment, he was nevertheless able to question her lack of impartiality in his appeal to the Supreme Court, which he did (compare Ramljak, cited above, § 33). However, although both the Supreme Court and the Constitutional Court had had the power to remedy the violation complained of, they failed to do so (see Kyprianou v. Cyprus [GC], no. 73797/01, § 134, ECHR 2005‑XIII).
26. The foregoing considerations are sufficient to enable the Court to conclude that the composition of the court was not such as to guarantee its impartiality and that it failed to meet the Convention standard under the objective test.
27. There has therefore been a violation of Article 6 § 1 of the Convention.APPLICATION OF ARTICLE 41 OF THE CONVENTION
28. 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.”Damage
29. The applicant claimed 10,000 euros (EUR) in respect of non‑pecuniary damage.
30. The Government contested that claim.
31. The Court awards the applicant EUR 1,500 in respect of non‑pecuniary damage, plus any tax that may be chargeable on that amount.Costs and expenses
32. The applicant also claimed EUR 15,000 for the costs and expenses incurred before the domestic courts, and costs of her legal representation before the Court without specifying the amount.
33. The Government contested those claims.
34. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Since the applicant failed to submit itemised claims or any supporting documents or particulars concerning the costs and expenses incurred in the domestic proceedings or those before the Court, as required under Rule 60 §§ 2 and 3 of the Rules of Court, the Court dismisses his claims.Default interest
35. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLYDeclares the application admissible;Holds that there has been a violation of Article 6 § 1 of the Convention;Holds
(a) that the respondent State is to pay the applicant, within three months, EUR 1,500 (one thousand five hundred euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non‑pecuniary damage;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 22 April 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Attila TeplánKrzysztof Wojtyczek
Acting Deputy RegistrarPresident
Full & Egal Universal Law Academy