FOURTH SECTION
DECISION
Application no. 776/14
Vesna GYÖRKÖS ŽNIDAR
against Slovenia
The European Court of Human Rights (Fourth Section), sitting on 16 January 2018 as a Committee composed of:
Vincent A. De Gaetano, President,
Georges Ravarani,
Marko Bošnjak, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above application lodged on 19 December 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, Ms Vesna Györkös Žnidar, is a Slovenian national who was born in 1977 and lives in Maribor.
2. The Slovenian Government (“the Government”) were represented by their Agent, Ms V. Klemenc, State Attorney.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant, who was a practising lawyer, was representing one of ten defendants charged with participation in a group that had obstructed an agent of the State in the performance of official duties. The criminal proceedings were conducted before the Maribor Local Court sitting in a single-judge formation (hereinafter “the trial judge”).
5. In the course of the proceedings the applicant and some other defence lawyers requested the disqualification of the trial judge. The latter rejected the requests as manifestly ill-founded and as attempts to delay the proceedings or undermine the authority of the court under section 42(5) of the Criminal Procedure Act (hereinafter “the CPA” – see paragraph 9 below).
6. At the hearing of 9 May 2013 the applicant again requested the disqualification of the trial judge on the basis of circumstances raising doubts about her impartiality. The trial judge rejected this request as manifestly ill-founded and fined the applicant 500 euros (EUR) under section 140(1) of the CPA, read in conjunction with section 78(1) of the CPA (see paragraphs 10 and 11 below). She asserted that by lodging the request for disqualification on the same grounds as those that had already been rejected as manifestly ill-founded, the applicant had intended to delay the criminal proceedings.
7. On 6 June 2013 the applicant appealed, alleging that her request for disqualification had been different from the ones that had been previously rejected and that she had not intended to delay the criminal proceedings. She further maintained that the decision to fine her was essentially unreasoned. The applicant did not argue that by imposing the fine, her right to an impartial tribunal had been violated.
8. On 28 June 2013 the Maribor Higher Court, following the lower court’s reasoning, dismissed the appeal. The decision was served on the applicant on an unknown date at the beginning of July 2013.
B. Relevant domestic law and practice
1. Criminal Procedure Act (Official Gazette no. 32/2012 – official consolidated version with further amendments)
9. Under section 42(5) of the CPA the judge hearing a case may reject a party’s request for his or her disqualification, inter alia, if the request repeats the reasons invoked in a previous request which has been dismissed, or if it is clear from the content of the request that it is manifestly ill-founded and has been submitted in order to delay proceedings or undermine the authority of the court.
10. Section 78 of the CPA provides that the court may sanction, by imposing a fine, inter alia, a defence lawyer who insults the court with written or oral submissions. The amount of the fine is between one fifth and three times the last officially announced average net monthly salary in Slovenia. Under section 78(1), as it stood at the relevant time, the decision on the fine was rendered by the judge before whom the offensive statement had been made or, if the insult had been made in a written submission, by the court which was to decide on the submission. Furthermore, section 130 determined that when a fine prescribed by the CPA could not be enforced, the court was to execute it by imposing one day’s imprisonment for each 42 euros.
11. Section 140(1) of the CPA provides that in the course of proceedings, the court may impose the fine referred to in section 78 also on a defence lawyer whose behaviour is manifestly intended to delay the criminal proceedings.
2. Constitutional Court Act (Official Gazette no. 15/94 with further amendments)
12. The applicable provisions of the Constitutional Court Act regarding so-called “small claims” are set out in Knežević and Others v. Slovenia ((dec.), no. 51388/13, § 16, 19 September 2017).
3. Case-law of the Constitutional Court
13. The Constitutional Court has consistently held that when a fine imposed on a defence lawyer under section 78 of the CPA did not exceed the amount determined by the definition of a small claim (EUR 2,000), the constitutional complaint lodged against the imposition of the fine had to be considered as a complaint lodged in a dispute under section 55a(2) of the Constitutional Court Act (see decisions Up-441/13 of 10 September 2013; Up-1201/12 of 10 September 2013 and Up-1131/12 of 30 September 2013). Consequently, the court applied a presumption that the alleged violation of human rights or fundamental freedoms had not had serious consequences for the complainant. It thereby insisted that it would examine such constitutional complaints on the merits in accordance with section 55a(3) of the Constitutional Court Act only when they concerned a constitutional question the importance of which exceeded that of the actual case (hereinafter “the important constitutional question”). In this connection, the Government referred to several decisions in which the Constitutional Court had indicated that the impartiality of judges in contempt-of-court proceedings was an important constitutional question, but had ultimately rejected constitutional complaints on other inadmissibility grounds (see also decision no. Up-925/12 of 15 April 2014).
14. Further case-law of the Constitutional Court concerning small claims is set out in Knežević and Others (decision cited above, §§ 19-21).
15. On 23 June 2005 the Constitutional Court delivered decision no. U-I-145/03, in which it examined the Civil Procedure Act provisions concerning the sanctioning of lawyers during civil proceedings (see Alenka Pečnik v. Slovenia, no. 44901/05, §§ 20-22, 27 September 2012). It found that the system whereby the judge who was criticised was also the one who imposed a sanction was clearly not in breach of the right to an impartial tribunal. In decision no. Up-332/03 of 27 October 2005 the Constitutional Court, referring to the aforementioned conclusion concerning judicial impartiality, found that the complainant’s right to an impartial tribunal had not been violated in civil proceedings.
16. On 28 September 2016 the Constitutional Court found a violation of the complainant’s right to an impartial tribunal in a case in which a defence lawyer had been fined in contempt-of-court proceedings (Up-185/14 and U-I-51/16). The court repealed section 78 of the CPA, in so far as it referred to cases in which the judge who had been criticised was also the one who was to impose a fine, and the relevant part of section 130 of the CPA (see paragraph 10 above).
COMPLAINTS
17. The applicant complained that the trial judge, when fining her for delaying the criminal proceedings in which she had been acting as a defence lawyer, had lacked impartiality, contrary to Article 6 § 1 of the Convention. The applicant further complained that there had been no reason for the imposition of a fine as she had merely been exercising her client’s right of defence lawfully, with due respect for the court and without seeking to protract the criminal proceedings.
THE LAW
18. The applicant complained that the proceedings in which she had been fined for allegedly seeking to delay the criminal proceedings had been unfair and biased, in breach of Article 6 § 1 of the Convention, the relevant part of which reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”
A. Arguments of the parties
1. The Government
19. The Government objected that the applicant had failed to exhaust domestic remedies. In particular, she had not lodged a constitutional complaint against the Maribor Higher Court’s decision of 28 June 2013 (see paragraph 8 above). In support of their argument, they relied on the relevant provisions of the Constitutional Court Act (see paragraph 12 above) and the case-law of the Constitutional Court (see paragraphs 13 and 14 above).
20. The Government further objected to the applicability of Article 6 to the proceedings in issue; in their view, these were not “criminal” but disciplinary in character.
2. The applicant
21. The applicant contested the Government’s arguments, emphasising that she had not lodged a constitutional complaint because she had not had any reasonable prospects of success. She relied, in particular, on two Constitutional Court decisions of 2005 (see paragraph 15 above), claiming that they had made it clear that her constitutional complaint concerning the impartiality of the tribunal in the contempt-of-court proceedings would not have been considered as raising any important constitutional question and would have been rejected.
B. The Court’s assessment
22. The Court notes that the Government raised the question whether the application was incompatible ratione materiae with the provisions of Article 6 of the Convention (see paragraph 20 above). However, the Court considers that it is not necessary to examine this issue, since the application is in any event inadmissible for the following reason.
23. The Court reiterates that pursuant to Article 35 of the Convention the complaint intended to be made subsequently to the Court must first have been made – at least in substance – to the appropriate domestic body, and in compliance with the formal requirements and time-limits laid down in domestic law (see, among other authorities, Sejdovic v. Italy [GC], no. 56581/00, § 44, ECHR 2006‑II; for a recollection of the general principles concerning non-exhaustion of domestic remedies, see Vučković and Others v. Serbia [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014).
24. Turning to the present case, the Court notes that the applicant lodged her application with the Court after her appeal against the decision concerning the fine for delaying the criminal proceedings had been dismissed by the Maribor Higher Court (see paragraph 8 above). She has not lodged a constitutional complaint.
25. The Court refers to its decision in Knežević and Others v. Slovenia ((dec.), no. 51388/13, §§ 26-32, 19 September 2017), where it found, on the basis of the provisions of the Constitutional Court Act and the Constitutional Court case-law, that a constitutional complaint in cases in which the value in dispute for the complainant did not exceed the amount of a small claim could not be considered a priori ineffective. The Court decided in that case that the applicants, who had lodged their application after their appeal had been rejected by the higher court, should have availed themselves of a constitutional complaint in order to exhaust domestic remedies.
26. The Court takes note of the applicant’s argument that in the circumstances of her case a constitutional complaint in a dispute falling under section 55a(2) of the Constitutional Court Act would not have had any reasonable prospects of being examined on the merits because the Constitutional Court had previously found, albeit in the context of civil proceedings, that the impugned system of sanctioning lawyers had been in line with the Constitution (see paragraphs 15 and 21 above). However, it reiterates that the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to pursue it (see, among many other authorities, Gherghina v. Romania (dec.) [GC], no. 42219/07, § 86, 9 July 2015). It further observes that the Constitutional Court’s decisions relied on by the applicant (see paragraph 15 above) had been delivered in 2005, more than seven years prior to the higher court’s decision in the present case. Furthermore, in the meantime, this Court found the system of sanctioning lawyers in contempt-of-court proceedings in Slovenia to fall short of the Convention’s impartiality requirement (see Alenka Pečnik v. Slovenia, no. 44901/05, §§ 41-44, 27 September 2012). This could have induced the Constitutional Court to hold that the issue at the core of the applicant’s case was an “important constitutional question” (see paragraph 13 above). Therefore, after receiving the higher court’s decision in July 2013 (see paragraph 8 above), the applicant could not have reasonably assumed that her constitutional complaint was bound to fail.
27. In view of the above, the Court sees no reason to depart from its conclusion in Knežević and Others (decision cited above, §§ 31-32) in the present case. As the applicant failed to lodge a constitutional complaint, the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 8 February 2018.
Andrea TamiettiVincent A. De Gaetano
Deputy RegistrarPresident
Full & Egal Universal Law Academy