Legal summary
August 2024
Mamić v. Croatia (dec.) - 21714/22, 25102/22 and 25367/22
Decision 9.7.2024 [Section I]
Article 35
Article 35-3-a
Abuse of the right of application
Applications tainted by applicants’ manipulation of justice and Convention system:inadmissible
Facts – The first and second applicants occupied key management positions at Dinamo Zagreb Football Club and the third applicant is a tax inspector. In 2016 the Office for the Suppression of Corruption and Organised Crime (“OSCOC”) charged them with several criminal offences, in part concerning transfer compensation paid to the club for two prominent Croatian football players.
Two days prior to the delivery of the trial court’s judgment, the second applicant held a press conference where he presented correspondence – which was subsequently established to have been fabricated by third parties – and asked that the trial court’s judgment be adjourned and the hearing be reopened, which the trial court refused. Further correspondence was fabricated in connection with the applicants’ case on appeal (“the SMS affair”).
In 2018 the trial panel presided by Judge D.K. acquitted the first and third applicants of one count of giving and receiving a bribe and found all the applicants guilty of the remaining offences.
Pending the applicants’ appeal before the Supreme Court in 2020, the second applicant sent a statement to the OSCOC describing how he and the first applicant had socialised with and given bribes to Judge D.K. and to Judges Z.V. and A.K. (in another set of proceedings) in exchange for favourable decisions. Part of the arrangement with Judge Z.V. had been to ensure that his close friend, Judge D.K., dismissed the charges on the basis that they had been brought by an unauthorised prosecutor. The OSCOC opened an inquiry. The transcript of the trial panel’s deliberations showed that Judge D.K. had voted to dismiss the charges on the basis that they had been brought by an unauthorised prosecutor, but that two other panel members had outvoted him. Judge D.K. confirmed that he had received a watch from the second applicant in the stadium lounge after a football match but denied having had any corrupt agreement with him.
In March 2021 the Supreme Court quashed part of the trial court’s judgment in respect of the first and third applicants and amended their prison sentences. It granted the second applicant’s appeal in part and upheld the remainder of the judgment.
Before the Constitutional Court, the first and second applicants complained, for the first time, that they had not been tried by an impartial tribunal on account of the relationship between Judge D.K. and the second applicant. The third applicant did not make this complaint. In November 2021 the complaint was rejected for failure to exhaust available remedies.
Judge Z.V. and Judge D.K. were disciplined and removed from judicial duty in 2022. In 2023 an indictment was brought against the first and second applicants, Judges D.K., Z.V. and A.K, and two other persons for giving and receiving a bribe, peddling influence, and money-laundering.
Law – Article 6 § 1:
(a) Alleged lack of impartiality of the president of the trial panel (Judge D.K.) – The third applicant had presented the Court with a modified copy of his constitutional complaint in order to pretend that he had raised the issue of an impartial tribunal before the Constitutional Court. He had thereby tried to deceive the Court by presenting a distorted image of the most serious part of his application, which would have prevented the Court from ruling on the admissibility and merits of that application in full knowledge of the facts. Such conduct was contrary to the purpose of the right of individual application.
Conclusion: inadmissible (abuse of the right of application).
The first and second applicants had essentially based their complaint that there had been a breach of their right to an impartial tribunal on their own acts, which, at their core, had been aimed at destroying that very right. It seemed obvious that Judge D.K. should have asked to be removed from the case on the basis of his having received a watch from the second applicant while the proceedings were pending. However, the first and second applicants had willingly made an arrangement with the judges and, according to their own submissions, had given them money and gifts (the second applicant, as regards Judges D.K. and Z.V.) and had paid for trips and dinners for them (the first and second applicants, as regards Judge Z.V.). They had only made disclosures about the situation after the conviction against them had become final and all other attempts to manipulate the proceedings in their favour had failed. Moreover, correspondence had been fabricated in “the SMS affair” not only to try and reopen the trial hearing, but also in connection with the case on appeal. These circumstances showed the extent to which attempts had been made to obstruct the justice system in favour of the applicants and had to be taken into account for the purposes of Article 35 § 3 (a) of the Convention.
Principally, these applicants had tried to create a “win-win” situation for themselves – either giving bribes to the judges would work in their favour and the charges against them would be dismissed, or they would complain of the lack of an impartial tribunal and have a violation of the Convention established, and consequently the reopening of the criminal proceedings would be a likely outcome.
The Court could not condone such behaviour by the parties, as this would have allowed manipulations and serious obstructions of the justice system. Indeed – without going into the question of the guilt or innocence of the first and second applicants or of the judges concerned with regard to the criminal offences with which they had been charged – the very circumstances that the first and second applicants had confirmed to the Court led to the conclusion that, after all their efforts to manipulate the domestic proceedings in their favour had failed, they were now aiming to take advantage of the system of protection of human rights under the Convention and benefit from their own abusive conduct at domestic level.
According to the second applicant, if the Court were not to find a violation of the impartial tribunal requirement, that would lead to a situation in which a corrupt judge would be absolved of responsibility for his illegal actions and a judgment given by a partial tribunal would remain in force. However, the first and second applicants had themselves caused the situation complained of, the judges concerned had been permanently removed from judicial office and an indictment had been brought against them for receiving bribes and peddling influence. Without prejudging the outcome of those criminal proceedings, the fact remained that the situation had put an end to those judges’ careers after many years of service.
In sum, having regard to the rationale of Article 17 of the Convention, in the exceptional circumstances of the present case, the applicants’ conduct regarding their right to be tried by an impartial tribunal had been manifestly contrary to the purpose of the right of individual application as provided for in the Convention and had impeded the proper functioning of the safeguard mechanisms established by the Convention.
Conclusion: inadmissible (abuse of the right of application).
(b) Other alleged violation of the Convention (first and second applicants) – Although the first and second applicants’ conduct which constituted abuse had directly concerned only one of several complaints under Article 6 communicated to the respondent Government, their behaviour – which had been aimed at manipulating and seriously obstructing the justice system and taking advantage of the system of protection of human rights under the Convention in order to benefit from their own abusive conduct at domestic level – should have implications for the admissibility of their entire applications. Accordingly, their applications as a whole had to be rejected as an abuse of the right of individual application.
Conclusion: inadmissible (abuse of the right of application).
(See also Miroļubovs and Others v. Latvia, 798/05, 15 September 2009, Legal Summary; Petrović v. Serbia (dec.), 56551/11 et al., 18 October 2011; S.A.S. v. France [GC], 43835/11, 1 July 2014, Legal Summary; Koch v. Poland (dec.), 15005/11, 7 March 2017, Legal Summary)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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