FIRST SECTION
DECISION
Application no. 30370/13
Petar ČUDINA
against Croatia
The European Court of Human Rights (First Section), sitting on 10 December 2019 as a Chamber composed of:
Krzysztof Wojtyczek, President,
Ksenija Turković,
Aleš Pejchal,
Pauliine Koskelo,
Tim Eicke,
Jovan Ilievski,
Raffaele Sabato, judges,
and Abel Campos, Section Registrar,
Having regard to the above application lodged on 2 April 2013,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Petar Čudina, is a Croatian national, who was born in 1968 and lives in Bergen op Zoom, the Netherlands. He was represented before the Court by Mr G. Marjanović, a lawyer practising in Rijeka.
2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 10 November 1997 the Rijeka Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Rijeci) charged the applicant with grievous bodily harm.
5. He was tried in the Rijeka Municipal Court (Općinski sud u Rijeci).
6. At a hearing on 6 April 1998 the applicant gave evidence. Hearings scheduled to take place on 8 June and 13 July 1998 were adjourned. At a hearing on 2 October 1998 a witness, Z.Č., and an expert witness, R.D., gave evidence.
7. All the hearings were presided over by Judge S.Š. The case was then transferred to another judge.
8. On 23 January 2006 a panel presided over by Judge M.P.R. found the applicant guilty and sentenced him in his absence to two years and eight months’ imprisonment.
9. At the applicant’s request the proceedings were reopened on 2 October 2007.
10. The case was entirely reheard. At hearings on 13 December 2007 and 17 January 2008 respectively R.D. and Z.Č. gave evidence, and on 6 March 2008 the applicant presented his defence and another witness, V.A., gave evidence.
11. On 6 March 2008 a panel again presided over by Judge M.P.R. found the applicant guilty and sentenced him to three years’ imprisonment.
12. On 31 March 2008 the applicant lodged an appeal against the first-instance judgment, complaining about the court’s assessment of the facts and of a number of procedural flaws.
13. On 4 June 2008 the Rijeka County Court (Županijski sud u Rijeci) quashed the first-instance judgment and remitted the case to the lower court for fresh examination. Judge S.Š. was a member of the appeal panel.
14. On 16 October 2008 the Rijeka Municipal Court, sitting in a panel again presided over by Judge M.P.R., found the applicant guilty and sentenced him to three years’ imprisonment.
15. On 4 March 2009 the Rijeka County Court, sitting in a panel including Judge S.Š., dismissed an appeal by the applicant and upheld the Rijeka Municipal Court’s judgment of 16 October 2008.
16. The applicant requested an extraordinary review of the final judgment. He argued, inter alia, that Judge S.Š. had not been impartial when deciding his appeal against the first-instance judgment of 16 October 2008 (see paragraph 14 above) because she had already participated in the proceedings at first instance as the president of the trial panel (see paragraphs 6 and 7 above).
17. On 1 September 2009 the Supreme Court (Vrhovni sud Republike Hrvatske) dismissed the applicant’s request for an extraordinary review of the final judgment. His argument that Judge S.Š. had not been impartial was dismissed on the grounds that she had not adopted any first-instance decisions in the initial (see paragraphs 4-8 above) or reopened (see paragraphs 9-11 above) proceedings.
18. A subsequent constitutional complaint lodged by the applicant was dismissed by the Constitutional Court (Ustavni sud Republike Hrvatske) on 21 November 2012.Relevant domestic law and practiceCode of Criminal Procedure
19. The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette no. 110/97, with subsequent amendments), which was in force from 1 January 1998 until 31 December 2008, read as follows:
Disqualification
Article 36
“1. A judge or lay judge shall be disqualified from sitting in a case ...
(5) if in the same case [he or she] has taken part in adopting the decision of a lower court or in adopting a decision of the same court being challenged by means of an appeal or extraordinary remedy.”
Article 37
“1. A judge or lay judge, as soon as he discovers grounds for [his or her] disqualification as referred to in Article 36, paragraph 1, of this Code, shall discontinue all activity in the case and report the matter to the president of the court, who shall appoint a substitute judge.”Relevant practice of the Supreme Court
20. The relevant part of decision no. Kzz-28/07 of 16 October 2007 reads:
“The State Attorney erroneously deemed that, [under] Article 36 § 1 (5) of the Code of Criminal Procedure, the adoption of any decision at first instance is considered to be absolute grounds for disqualifying a judge from sitting in the second-instance proceedings. A judge is disqualified from a case, pursuant to Article 36 § 1 (5), only if he adopted the first-instance decision which is the subject of examination in the appeal proceedings.”
21. In decision no. Kzz-31/01 of 6 June 2002 the Supreme Court held that the fact that a judge had adopted a first-instance judgment, which was subsequently quashed, did not constitute absolute grounds for his disqualification from the appeal proceedings against the new first-instance judgment in the adoption of which he had not participated.
22. In judgment no. Rev-3702/1999 of 18 March 2003, which concerned a civil case, the Supreme Court found that the fact that a judge had held a hearing during the first-instance proceedings was not under domestic law grounds for his automatic exclusion from the appeal proceedings.
COMPLAINT
23. The applicant complained under Article 6 § 1 of the Convention that the appellate court in the criminal proceedings against him had not been impartial.
THE LAW
24. The applicant complained of a lack of impartiality on the part of Judge S.Š. because she had taken part in the proceedings at first instance and had subsequently been a member of the three-judge panel that had dismissed his appeal against the first-instance judgment. He relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing ... by an ... impartial tribunal ...”The parties’ arguments The Government
25. The Government argued that the applicant had failed to exhaust the available domestic remedies, in that he had never requested that Judge S.Š. be disqualified from sitting in his case.
26. As regards the subjective test of impartiality, the Government claimed that the applicant had not adduced any evidence capable of rebutting the presumption of impartiality of Judge S.Š.
27. As to the objective test of impartiality, the Government first contended that Judge S.Š. had never decided on the applicant’s guilt at first instance. She had only presided over four hearings in the first set of first-instance proceedings, and had not played any role in the proceedings up until the first set of appeal proceedings some nine years later (see paragraphs 5-13 above).
28. Secondly, the judgment rendered in the first-instance proceedings in which Judge S.Š. had held hearings had not been examined by the three-judge appeal panel of which she had been a member. She therefore had not been obliged to withdraw of her own motion from sitting in the appeal proceedings since, under domestic law, there had been no absolute grounds for automatic disqualification (see paragraph 19 above).
29. Thirdly, before upholding the first-instance judgment of 16 October 2008, Judge S.Š. had already participated in the earlier appeal proceedings in which she had issued a decision in favour of the applicant. In particular, she had sat as a member of the appeal panel which had quashed the judgment finding him guilty of the criminal charge against him, and had remitted the case to the lower court for fresh examination (see paragraph 13 above).
30. Lastly, the Government pointed out that a considerable amount of time (nine years) had passed between the hearings held by Judge S.Š. in the first set of first-instance proceedings and her subsequent involvement in the case at the appellate stage (see paragraphs 5-13 above). The Government thus considered it improbable that a judge would remember evidence put before him or her that long ago.
31. To conclude, the Government considered, in the light of the foregoing, that there had been no objective reason for the applicant to fear that the Rijeka County Court would not be impartial in the determination of the criminal charge against him. The applicant
32. The applicant replied that he had used all the available domestic remedies. According to him, not only had he not been required to seek the disqualification of Judge S.Š., but the judge herself should have withdrawn from the case of her own motion, pursuant to the relevant provisions of the Code of Criminal Procedure (see paragraph 19 above). The fact that she had failed to do so had constituted in itself a violation of his right to a hearing by an impartial tribunal.
33. The applicant further emphasised that, during her participation in the first-instance proceedings, Judge S.Š. had heard evidence which was important for deciding the merits of the case (see paragraphs 6-7 above). She would therefore have had preconceived ideas concerning his guilt when examining his appeal.The Court’s assessment
34. The Court considers, having regard to its case-law (see, for example, Rustavi 2 Broadcasting Company Ltd and Others v. Georgia, no. 16812/17, §§ 304-305, 18 July 2019), that the Government’s objection on non-exhaustion of domestic remedies raises an issue under Article 35 § 1 of the Convention. The Court nevertheless does not find it necessary to address that objection given that this complaint is in any event inadmissible for the following reasons.
35. The relevant Convention principles concerning the impartiality of tribunals were summarised in the case of Denisov v. Ukraine ([GC], no. 76639/11, §§ 61-63, 25 September 2018) where the Court held as follows:
“As a rule, impartiality denotes the absence of prejudice or bias. According to the Court’s settled case-law, the existence of impartiality for the purposes of Article 6 § 1 must be determined according to (i) a subjective test, where regard must be had to the personal conviction and behavior of a particular judge – that is, whether the judge held any personal prejudice or bias in a given case; and (ii) an objective test, that is to say, by ascertaining whether, quite apart from the personal conduct of any of its members, the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality (...).
62. However, there is no watertight division between subjective and objective impartiality, as the conduct of a judge may not only prompt objectively held misgivings as to the tribunal’s impartiality from the point of view of the external observer (the objective test) but may also go to the issue of the judges’ personal conviction (the subjective test) .... Thus, in some cases where it may be difficult to procure evidence with which to rebut the presumption of the judge’s subjective impartiality, the requirement of objective impartiality provides a further important guarantee (...).
63. In this respect, 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 ....”
36. The Court observes at the outset that the applicant did not adduce any evidence and that there is nothing to indicate any personal bias on the part of Judge S.Š. It therefore considers that her personal impartiality is not at issue in the present case and that, consequently, its task is to assess whether the applicant’s doubts as to her impartiality may be regarded as objectively justified.
37. In the instant case the fear that the trial court might not be impartial was based on the fact that one of the members of the appeal panel which upheld the applicant’s conviction had questioned the accused, a witness and an expert witness at first instance (see paragraphs 6-7 and 15 above). In the Court’s view, this kind of situation may in principle give rise to misgivings on the part of the accused as to the impartiality of the judge in question. However, whether these misgivings should be treated as objectively justified depends on the circumstances of each particular case (see Bulut v. Austria, 22 February 1996, § 33, Reports of Judgments and Decisions 1996‑II; Hauschildt v. Denmark, 24 May 1989, § 49, Series A no. 154; and Nortier v. the Netherlands, 24 August 1993, § 33, Series A no. 267).
38. It has already been confirmed in the Court’s case-law that no question of a lack of impartiality arises when a judge has previously delivered purely formal and procedural decisions at other stages of the proceedings. What matters is the extent and nature of the measures taken by a judge (see Gómez de Liaño y Botella v. Spain, no. 21369/04, § 64, 22 July 2008, and Fey v. Austria, 24 February 1993, § 30, Series A no. 255‑A). The Court has also found that issues with impartiality may emerge if, at other stages of the proceedings, a judge has already expressed an opinion on the guilt of the accused (see, for example, Gómez de Liaño y Botella, cited above, § 67-72, and Hauschildt, cited above, §§ 51-52) or, in civil cases, on the merits of the case (see, for example, Korzeniak v. Poland, no. 56134/08, §§ 51-60, 10 January 2017).
39. Turning to the present case, the Court first notes that Judge S.Š. presided over four hearings in the first set of first-instance proceedings (see paragraphs 6-7 above). Two of those hearings were adjourned. At the hearing of 6 April 1998 the applicant was heard. At the hearing of 2 October 1998 a witness and an expert witness were heard (see paragraphs 6-7 above). Afterwards, the case was transferred to another judge and Judge S.Š. played no further role in the proceedings up until 4 June 2008, when she decided on the applicant’s appeal in the first set of appeal proceedings (see paragraphs 7-13 above). During her participation in the first-instance proceedings Judge S.Š. had not been called to assess evidence or examine the merits of the accusations against the applicant (see paragraph 8 above). Due to her limited participation in the first-instance proceedings, she had not been in a position to express an opinion on the applicant’s guilt (see, mutatis mutandis, Fey, cited above § 31; Bulut, cited above, § 34; and Marguš v. Croatia [GC], no. 4455/10, § 87, ECHR 2014 (extracts)).
40. The Court further notes that several rulings were given in the applicant’s case between the initial participation of Judge S.Š. at first instance and her subsequent involvement at the appellate stage. After the case was transferred to another judge, a three-judge panel (not including Judge S.Š.) found the applicant guilty and convicted him in his absence (see paragraphs 7-8 above). Following a request by the applicant, a retrial took place and all the evidence was entirely reheard (see paragraphs 9 and 10 above).
41. Judge S.Š.’s second involvement in the case consisted of deciding, as a member of a three-judge panel, the applicant’s appeal against the first-instance judgment issued in the retrial proceedings. The panel quashed the applicant’s conviction and remitted the case to the lower court for fresh examination (see paragraph 13 above). This fresh decision favourable to the applicant suggests that Judge S.Š., despite her role in the first-instance proceedings and the fact that during her limited participation therein she had heard evidence (see paragraphs 6-7 above), had not had any preconceived ideas about the applicant’s guilt before she took part in the decision that upheld his conviction in the second set of appeal proceedings (see paragraph 15 above).
42. Finally, as concerns the applicant’s allegation that Judge S.Š. should have withdrawn from sitting in the case at the appellate stage (see paragraph 32 above), the Court notes that, under Article 36 § 1 (5) of the Code of Criminal Procedure (in force at the material time) and the practice of the Supreme Court, an appellate court should not include any judge who had adopted a decision which was the subject of examination before it (see paragraphs 19-22 above). The fact that – as in the present case – an appellate judge participated in the proceedings at first instance without rendering any decisions is not, under domestic law, absolute grounds for his or her disqualification from the case in the appeal proceedings (see paragraphs 20-22 above). Consequently, it cannot be said that the applicant’s case was heard by a tribunal whose impartiality was recognised by national law to be open to doubt (contrast Oberschlick v. Austria (no. 1), 23 May 1991, §§ 50-51, Series A no. 204, and Mežnarić v. Croatia, no. 71615/01, § 27, 15 July 2005).
43. It follows that the present application is inadmissible under Article 35 § 3 (a) of the Convention as manifestly ill-founded and must be rejected pursuant to Article 35 § 4.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 16 January 2020.
Abel CamposKrzysztof Wojtyczek
RegistrarPresident
Full & Egal Universal Law Academy