SECOND SECTION
DECISION
Application no. 79821/12
Ana MARUŠIĆ
against Croatia
The European Court of Human Rights (Second Section), sitting on 23 May 2017 as a Chamber composed of:
Işıl Karakaş, President,
Julia Laffranque,
Nebojša Vučinić,
Paul Lemmens,
Valeriu Griţco,
Jon Fridrik Kjølbro,
Georges Ravarani, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 20 November 2012,
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 Ana Marušić, is a Croatian national, who was born in 1962. She was represented before the Court by Mr M. Samaržija, a lawyer practising in Zagreb.
2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
3. Ksenija Turković, the judge elected in respect of Croatia, withdrew from sitting in the case (Rule 28 of the Rules of Court). On 3 October 2016 the President of the Chamber decided to appoint Georges Ravarani, the judge elected in respect of Luxembourg, to sit as an ad hoc judge (Rule 29 § 2(a)).
A. The circumstances of the case
4. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background to the case
5. The applicant was a tenured professor at the University of Zagreb, School of Medicine (Medicinski fakultet Sveučilišta u Zagrebu, hereinafter: the Faculty). She was the co-editor-in-chief of the Croatian Medical Journal, an international peer-reviewed journal owned by four Croatian medical schools (the universities of Osijek, Rijeka, Split and Zagreb). The applicant also performed various other functions in different international academic initiatives in the field of medical science.
6. In 2001 together with J.K.N., the applicant co-authored a textbook on anatomy entitled ‘Anatomija čovjeka’ [Human Anatomy], which was in use in teaching at the Faculty.
2. Allegations of plagiarism against the applicant and the initial investigation
7. On an unspecified date in 2006 the Office of the Dean received an anonymous letter signed by “students of the School of Medicine” alleging that in the applicant’s textbook on anatomy she had plagiarised a textbook written in English by Keith L. Moore, an author from the United States, entitled ‘Clinically Oriented Anatomy’. Attached to the letter were copies of the relevant parts of the applicant’s and Moore’s books.
8. On 14 June 2006 the Dean established a special commission to assess the allegations of plagiarism against the applicant.
9. In a report of 24 October 2006 the commission found that a more appropriate avenue concerning the allegations of plagiarism would be an inquiry by the criminal justice authorities, where a certified court expert would compare and assess the two texts. Stressing, however, that it wished to facilitate the process, the commission explained that it had randomly taken and compared certain parts of the two texts (ten short paragraphs and five tables) and found that they were identical.
10. With regard to the special commission’s report, the Dean asked the Faculty’s Committee for Research (hereinafter “the Research Committee”) to assess the report’s findings. The Research Committee consisted of several faculty professors, including Professors M.J. and I.K.
11. The applicant had a long-lasting conflict with I.K. concerning various issues of academic conduct and integrity. In April and July 2005 the applicant and I.K. respectively lodged complaints before the Court for Integrity of the University of Zagreb School of Medicine (Sud časti Sveučilišta u Zagrebu, Medicinskog fakulteta; hereinafter “the Integrity Court”) making reciprocal allegations of academically improper conduct.
12. On 27 November 2006 the applicant reported to the Dean that I.K. had plagiarised parts of an earlier version of the book ‘Anatomija čovjeka’ when writing his book on anatomy, and that he and M.J. had plagiarised another book on neural sciences when writing their book on the matter.
13. On 28 November 2006 the Research Committee scheduled a meeting for the assessment of the report for 5 December 2006 and invited the applicant to attend the meeting.
14. On 5 December 2006 the applicant replied by letter, arguing that the anonymous letter had not been forwarded to her and that the real motive for the allegations of plagiarism against her had to be viewed in the context of similar allegations made by a certain professor, H.B., concerning another article which she had published with her researchers and which had been dismissed as unfounded. The applicant contended that the members of the Research Committee M.J. and I.K. had actively supported H.B.’s allegations against her and she therefore considered that they should withdraw from the case. She also stressed that she had reported I.K. and M.J. to the Dean for plagiarism. The applicant also extensively discussed why she considered that the allegations of plagiarism against her were unfounded. In particular, she contended that at maximum around 10% of her text corresponded to Moore’s book and that this concerned well-known information which could not be stated differently in different textbooks on anatomy.
15. By a letter of 23 April 2007 the applicant reiterated her above arguments, contending that the allegations of plagiarism against her were unfounded and that the proceedings at issue had damaged her professional academic status.
16. On 2 July 2007 the Research Committee expressed its view on two reports. Two members of the Research Committee accepted a report prepared by B.L. and expressed their view that probably 25% of the text in the applicant’s book corresponded to the relevant text in Moore’s book, without the necessary references. Seven members of the Research Committee, including M.J. and I.K., accepted a report prepared by I.K. according to which 5,182 lines of the applicant’s text were plagiarised from Moore’s book, which corresponded to 26.66% or, depending on the method of calculation, 21.33% of the overall text. In addition, 22 tables had been plagiarised, which meant that 84.62% of the tables in the book had been plagiarised. One member of the Research Committee abstained.
3. The proceedings against the applicant on charges of plagiarism before the Faculty bodies
17. On 23 July 2007, on the basis of the Research Committee’s findings, the Dean instituted proceedings against the applicant in the Faculty’s Integrity Court in connection with a suspicion that she had plagiarised parts of Moore’s book, by which she had breached sections 3, 8 and 12 of the Code of Ethics (see paragraph 46 below). In support of her allegations, the Dean forwarded to the Integrity Court the Research Committee’s findings and the examples from the applicant’s and Moore’s books.
18. On 29 October 2007 the applicant complained to the Research Committee that she had several times requested access to the relevant documents on the basis of which its findings had been drafted but had never received a reply. She therefore reiterated her request for access to the relevant documents.
19. On 5 November 2007 the Integrity Court forwarded the Dean’s submission to the applicant and invited her to respond to the allegations against her. On 9 November 2007 the applicant replied, contending that no supporting evidence had been forwarded with the Dean’s submission. She rejected the accusations of plagiarism.
20. Meanwhile, the Faculty had commissioned a report from Z., a court interpreter for English, concerning the similarities between the texts in the applicant’s and Moore’s books. In a report of 12 October 2007 the interpreter had analysed various parts and aspects of the two texts and concluded that 35-40% of the first part of the applicant’s book and 20-25% of the second part of the book were literal translations of Moore’s book. In addition, 76% of the tables and the relevant text in the first part and 52% in the second part of the book corresponded to Moore’s book.
21. At a hearing before the Integrity Court on 12 December 2007, a letter from the co-author of the applicant’s book, J.K.N., was read out. In the letter she explained that she had started to work with the applicant on the updating of a previous edition of the book on anatomy. The applicant had presented her a manuscript and J.K.N. had realised that the information provided had been correct and well presented. She stressed that she had trusted the applicant and that she could not be held responsible for any issues arising from the way the applicant prepared her part of the book. Further to this letter a summary of the special commission’s findings was also read out (see paragraph 9 above). In addition, the findings of the Research Committee’s reports (see paragraph 16 above) and the concluding part of Z.’s report (see paragraph 20 above) were read out as well.
22. Following the reading out of the materials in support of the accusations against her, the applicant asked to be provided with a copy of these documents, and sought an adjournment of the hearing so she could study the evidence obtained. The Integrity Court dismissed her request on the grounds that the relevant documents had been read out during the hearing.
23. On the same day the Integrity Court found that the applicant had committed plagiarism and sentenced her to a public reprimand. The Integrity Court considered it established on the basis of the evidence obtained and examined at the hearing that the applicant had plagiarised Moore’s book in a proportion of 35-40% in the first part and 20-25% in the second part of her book. The applicant was instructed that she could challenge the Integrity Court’s decision before the Faculty Council (Fakultetsko vijeće Medicinskog fakulteta Sveučilišta u Zagrebu).
24. On 15 January 2008 the applicant challenged the Integrity Court’s decision before the Faculty Council. She contended in particular that her right to a fair trial had been breached owing to the fact that she had never been provided with the relevant evidence against her and that therefore she had not been able to prepare her case properly. The applicant also argued that Z. was not a properly certified interpreter and that her findings lacked clarity. In addition, the applicant stressed that she had reported M.J. and I.K. for plagiarism. She also considered that the proceedings should have been conducted in accordance with the Regulations on the disciplinary responsibility of teachers, associates and students of the School of Medicine (see paragraphs 49-51 below; hereinafter “the Disciplinary Regulations”), which had come into force before the proceedings in her case had been instituted.
25. On 29 January 2008 the Faculty Council dismissed the applicant’s complaints. It stressed that the proceedings had been conducted before the Integrity Court in accordance with its rules and that the disciplinary proceedings under the Disciplinary Regulations were a separate but parallel avenue which could be pursued against a faculty employee for breaches of working duties. The Faculty Council also considered that the applicant had had an effective opportunity to participate in the proceedings and that the Integrity Court had correctly established all the relevant facts concerning the allegations of plagiarism. The decision of the Faculty Council was signed by the Dean.
4. The judicial proceedings
26. On 10 March 2008, as no further remedy lay against the Faculty Council’s decision, the applicant lodged a request for protection of constitutionally guaranteed rights under section 66 of the Administrative Disputes Act (see paragraph 57 below) before the Administrative Court (Upravni sud Republike Hrvatske) alleging, inter alia, that her right to a fair trial and respect for her honour and reputation had been breached. She contended in particular that the Integrity Court was not a tribunal established by law, given that the proceedings should have been conducted in accordance with the Disciplinary Regulations. She further argued that she had not had an effective opportunity to participate in the proceedings and to prepare for the case due to the fact that she had never been shown the anonymous letter containing allegations of plagiarism against her and had never been provided with the other evidence on which the findings of plagiarism had been based. Moreover, the applicant complained that she had not had access to the relevant expert report which had been relied upon for her conviction and the conclusions of which had only been read out at the trial. The applicant also challenged the findings of the Faculty bodies concerning the charges of plagiarism.
27. In April 2008 the reprimand against the applicant was published on the public noticeboard and the Faculty’s website.
28. On 20 May 2009, on the basis of the parties’ written submissions, the Administrative Court dismissed the applicant’s request for the protection of constitutionally guaranteed rights. The relevant parts of the decision read:
“The appellant lodged a request under section 66 of the Administrative Disputes Act ... alleging that the decision of the Faculty Council, dismissing her appeal and upholding the decision of the Integrity Court applying a public reprimand for the breaches of sections 3, 8 and 12 of the Faculty’s Code of Ethics, infringed [her] rights and freedoms guaranteed by the Constitution ...
According to section 66 of the Administrative Disputes Act ... 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.
In the case at issue the impugned decision of the Faculty Council is an individual act under section 66 of the cited Act and thus the appellant was allowed to submit a request for the protection of constitutionally guaranteed rights before the Administrative Court.
In her request the appellant firstly alleges a breach of Article 5 of the Constitution arguing that in the disciplinary proceedings the Faculty failed to comply with the provisions of the Scientific Activity and Higher Education Act, the Faculty’s Statute and the Regulations on the disciplinary responsibility of teachers, associates and students.
However, Article 5 of the Constitution, according to the well-established case-law of the Constitutional Court, does not provide for individual rights given that it stipulates the basic principles of constitutionality and lawfulness ... Accordingly, as the said provision of the Constitution concerns a general principle of the legal order of the Republic of Croatia, this court finds that the appellant’s constitutional rights in this respect were not and could not have been breached.
The appellant invokes Article 14 of the Constitution alleging that she has not been treated equally before the law ...
... [t]his court has considered the appellant’s arguments from the perspective of Article 14 § 2 of the Constitution which guarantees equality before the law.
In view of the above, this court finds that the available materials show that the impugned decision was based on an acceptable application of the substantive law and on its constitutionally acceptable interpretation. The competent bodies, in view of the facts established during the proceedings, provided sufficient reasoning for their decisions, which are not the result of an arbitrary interpretation and application of the substantive law. For these reasons, this court does not accept the appellant’s arguments that she has not been treated equally before the law as guaranteed under Article 14 § 2 of the Constitution.
...
Furthermore, with regard to the complaint of a breach of the right to a fair trial under Article 29 of the Constitution, and in view of the fact that the available materials show that the Integrity Court allowed the appellant to participate in and to follow the proceedings, and that she was able to take all the relevant procedural actions and to use remedies, and being mindful of the fact that the impugned decisions are sufficiently reasoned and adopted in accordance with the relevant procedural law, this court finds that the appellant’s constitutional right to a fair trial have not been breached.
...
In view of the above, the impugned decision was adopted in proceedings which, according to this court, did not breach the appellant’s [constitutional] rights and thus it cannot be held that the decision in question breached any of the protected guarantees under Article 35 of the Constitution, namely the respect for private and family life, dignity, reputation and honour. Accordingly, this right invoked by the appellant has not been breached either.”
29. On 16 July 2009 the applicant lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske), arguing that the Administrative Court had not properly ruled on her complaint of a breach of her constitutional rights. The applicant stressed in particular that the Faculty bodies’ decisions on the allegations of plagiarism against her had not been adopted by a “tribunal” established by law, and that she had not had an effective opportunity to participate in the proceedings with regard to the manner in which the relevant evidence against her had been obtained and used by the Integrity Court. The applicant also stressed that her conviction for plagiarism by the Integrity Court had damaged her professional academic integrity and reputation, which the Administrative Court had failed to rectify.
30. On 6 June 2012 the Constitutional Court, emphasising that it was not its function to deal with alleged errors of law or fact but to review compliance with the applicant’s constitutional rights, dismissed the applicant’s complaints as unfounded, endorsing the findings of the Administrative Court.
31. The decision of the Constitutional Court was served on the applicant’s representative on 5 July 2012.
5. Other relevant facts
32. On 28 January 2008 the Ministry of Science, Education and Sports (Ministarstvo znanosti, obrazovanja i športa; hereinafter “the Ministry”) conducted an administrative supervision of the Faculty’s acts in the applicant’s case, and found that with the adoption of the Faculty’s Disciplinary Regulations the proceedings against the applicant on charges of plagiarism should not have been conducted before the Integrity Court. It thus considered that the proceedings had not been conducted before a body established by law, and prohibited the enforcement of the decision on the applicant’s responsibility for plagiarism.
33. On 29 January 2008 the Faculty Council issued an authentic interpretation of the Disciplinary Regulations, by which it explained that the purpose of the Disciplinary Regulations was not to set aside the provisions concerning the functioning of the Integrity Court. It also stressed that the procedure before the Integrity Court and the procedure under the Disciplinary Regulations were two separate parallel procedures and that a case could be processed in either of two ways, depending on the nature of the misconduct at issue. This meant that breaches of ethics would be processed before the Integrity Court, while breaches of work duties would be processed in accordance with the Disciplinary Regulations. In this context, section 9 (1.3) of the Rules of the Integrity Court represented a link between the proceedings under the Rules and the proceedings under the Disciplinary Regulations (see paragraphs 49-51 below).
34. On 20 May 2009, following an administrative action by the Faculty, the Administrative Court quashed the Ministry’s decision on the grounds that it had overstepped its powers and authorities and unlawfully encroached upon the Faculty’s autonomy as provided under the Scientific Activity and Higher Education Act, the Constitution and the case-law of the Constitutional Court. The Administrative Court explained that the decision of the Integrity Court did not represent a decision which would be susceptible to further administrative supervision.
35. According to the documents provided by the applicant, in January 2013 she was found not to be eligible for a Fulbright scholarship award because of the public reprimand issued against her on charges of plagiarism. The applicant also explained that as a result of pressure from within the Faculty following her conviction for plagiarism she had had difficulty in being reappointed to the position of tenured professor. She eventually left Zagreb and now works in the University of Split School of Medicine (Medicinski fakultet Sveučilišta u Splitu).
B. Relevant domestic law and practice
1. Relevant domestic law
(a) Constitution
36. The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette, nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010 and 5/2014) read as follows:
Article 5
“In Croatia the laws shall comply with the Constitution ...
Everyone should abide the Constitution and the law and respect the legal order of the Republic of Croatia.”
Article 14
“Everyone in the Republic of Croatia shall enjoy rights and freedoms regardless of their race, colour, sex, language, religion, political or other belief, national or social origin, property, birth, education, social status or other characteristics.
All shall be equal before the law.”
Article 29
“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 35
“Everyone has a right to respect for and legal protection of his private and family life, dignity, reputation and honour.”
Article 68
“The autonomy of the universities shall be guaranteed.
A university shall independently decide on its organisation and operation, in accordance with the law.”
37. The relevant part of section 62 of the Constitutional Court Act (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette nos. 99/1999, 29/2002 and 49/2002) reads:
“Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that a decision (pojedinačni akt) of a State body, a body of local and regional self-government, or a legal person with public authority, which has decided on his or her rights and obligations, or about a suspicion or accusation of a criminal act, has violated his or her human rights or fundamental freedoms, or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter “constitutional right”) ...”
(b) Scientific Activity and Higher Education Act
38. The Scientific Activity and Higher Education Act (Zakon o znanstvenoj djelatnosti i visokom obrazovanju, Official Gazette nos. 123/2003, 198/2003, 105/2004, 174/2004, 2/2007 and 46/2007) provides that one of the basic principles governing higher education in Croatia is the principle of autonomy and self-regulation of universities (section 2(3.1)). The employment and academic status of university teachers and other university staff are regulated in sections 31-46.
39. Section 104 (1) of the Act provides that university teachers and other staff face disciplinary action for breaches of their work duties and other related activities, as well as for causing serious damage to the reputation of the university, in accordance with the relevant university statute. Paragraph 2 of the same section provides that disciplinary responsibility exists only with regard to an offence which was at the time of its commission proscribed under the relevant university acts and for which a sanction has been provided. Under section 112 (7), as in force at the relevant time, the Act provided that the institutions in the higher education system could establish their own ethical boards and adopt their own codes of ethics.
40. Section 113 provides that overall regulation of the lawfulness of the activities and general acts of the academic institutions is the responsibility of the Ministry.
(c) Statute and Code of Ethics of Zagreb University
(i) Statute of the Zagreb University
41. According to the Statute (Statut Sveučilišta u Zagrebu) of 25 February 2005, Zagreb University is a State-funded public institution (section 2). The Statute in section 79 (2) and (3) provides that the Senate of the University shall adopt a code of ethics on the professional and public activity of teachers and other employees and that staff shall face disciplinary action for infringements of work obligations and violations of the code of ethics, in accordance with this Statute and the regulations of the University’s constituent units.
42. Section 94 of the Statute specifies that failure to meet the requirements of the rules of conduct set forth in the Statute or the statutes of the University’s constituent units or regulations based on them, as well as damage caused to the reputation of the University and its employees, shall be subject to disciplinary responsibility. The disciplinary sanctions are reprimand, public reprimand and dismissal. The description of disciplinary offences and disciplinary procedure shall be determined by the regulations of the University and its constituent units.
(ii) The Code of Ethics of Zagreb University
43. The Code of Ethics of Zagreb University (Etički kodeks Sveučilišta u Zagrebu) of 15 May 2007 in section 2 provides that the aim of the Code of Ethics is to promote the values of academic society as a whole. Paragraph 2 of the same section in conjunction with sections 29-30 explains that ethical boards, established either at the level of the University or its constituent units, shall be competent to give advisory opinions on general or particular issues related to compliance with ethical standards.
44. Section 2 (3), (4) and (5) of the Code of Ethics further provide that procedures under the Code of Ethics exist independently of any civil, criminal, administrative or disciplinary proceedings. However, if under the Statute a breach of the Code of Ethics also implies disciplinary responsibility, the relevant University or Faculty regulations may need to obtain an opinion from the competent ethical board. The opinion at issue serves to promote the principles established in the Code of Ethics.
(d) The relevant acts of the School of Medicine
(i) Statute of the School of Medicine
45. The Statute of the School of Medicine (Statut Medicinskog fakulteta Sveučilišta u Zagrebu), first adopted on 14 June 2005 with further amendments on 27 October 2010, provides in section 130 that breaches of the relevant University and Faculty acts and conduct damaging the reputation of the University entail disciplinary responsibility which may be sanctioned by a reprimand, public reprimand or dismissal. Detailed provisions in this respect should be provided under the regulations on disciplinary responsibility (section 130). Section 133 provides that the Dean is presiding over the Faculty Council.
(ii) The Code of Ethics of the School of Medicine
46. The consolidated version of the Code of Ethics of the Zagreb University, School of Medicine (Kodeks nastavničke etike), adopted by the Faculty Council on 29 January 2008, which was, according to an undisputed submission by the Government, applicable at the relevant time, in section 3 obliged faculty teaching staff to carry out their tasks diligently and to have their private lives and conduct bear witness to the integrity of the profession. In section 8 the Code of Ethics emphasised a heightened duty of diligence for teachers when carrying out their duties in respect of the Faculty itself. Section 12 obliged teachers to maintain a heightened awareness of the ethical standards in the interest of their profession, students and the Faculty.
(iii) The Rules of the Integrity Court
47. The Rules of the Integrity Court (Poslovnik suda časti), first adopted in 1997 with further amendments, in their relevant parts provided:
Section 1
“The Integrity Court of the School of Medicine is established in order to protect the proclaimed ethical standards and the ethical standards set out in the Code of Ethics and other general acts which the teachers are obliged to respect when carrying out their activities.”
Section 9
“(1) For a breach of the ethical standards under the Code of Ethics, the Integrity Court may pronounce the following sanctions: reprimand, public reprimand, or proposal for the institution of proceedings for the adoption of a disciplinary sanction for serious breaches of work duties.
(2) In addition to a reprimand or public reprimand, the Integrity Court may suggest to the competent faculty body that proceedings be instituted for the removal of a teacher from the position which he or she occupies in the Faculty.”
48. The Rules of the Integrity Court further provided specific provisions concerning the composition and procedure before that court. In particular, the Integrity Court had a president, two vice-presidents, five full members and their deputies elected by the Faculty Council. It also had a Registrar (section 2). Any of these could institute proceedings before the Integrity Court, but it could not act on the basis of anonymous submissions (section 3). Cases were to be decided after a preliminary inquiry and a hearing. Respondents could be legally represented and proceedings could be held in their absence if that absence was not justified (sections 4-6). The decisions of the Integrity Court were published in the Faculty’s official gazette (section 10). Appeals against decisions of the Integrity Court could be lodged before the Faculty Council, which could overturn the first instance judgment by adopting its own judgment or could quash it and remit the case for a re-examination (section 11).
(iv) The Disciplinary Regulations
49. The Regulations on the disciplinary responsibility of teachers, associates and students of the School of Medicine (Pravilnik o stegovnoj odgovornosti nastavnika, suradnika i studenata Medicinskog fakulteta), which were adopted on 27 March 2007 by the Faculty Council and came into force on 7 April 2007, prescribe the responsibility and procedure for breaches of professional duties and conduct seriously damaging the reputation of the Faculty (section 1). They also oblige the teachers to comply with the relevant ethical standards (section 2).
50. The possible sanctions which may be adopted under the Disciplinary Regulations are: reprimand, public reprimand, or a proposal for dismissal. A fine may also be imposed as an ancillary sanction, and further sanctions are envisaged for discrimination and harassment (section 17). Proceedings under the Disciplinary Regulations are conducted before a committee of three members (section 36). An appeal against the decision of the committee may be lodged before the Faculty Council, which could overturn it by adopting its own decision or could quash it and remit the case for a re-examination (sections 45-46).
51. The relevant part of the transitional provisions provides:
Section 75
“Proceedings before the Faculty Court of Integrity instituted before the coming into force of these Regulations shall be conducted in accordance with the provisions of general acts as in force at the moment of the lodging of the request [instituting the proceedings].”
(v) Regulations on the functioning of the Ethics Board
52. The Regulations on the functioning of the Ethical Board (Pravilnik o Etičkom povjerenstvu, 02-107/15-97) were adopted on 31 January 1997 and were then amended on 1 July 2008. A consolidated version of the text of 6 April 2009 establishes further relevant ethical standards for faculty teachers and other staff (sections 2-4). It also provides that the Faculty Ethics Board shall have the competence to advise the Faculty on matters of ethics and shall work on the development and application of ethical standards. It can also give opinions on matters of ethics and compliance with the relevant ethical standards in individual cases (section 5).
53. In the transitional provisions, the Regulations on the functioning of the Ethics Board of 6 April 2009 repeal the following: the Regulations on the functioning of the Ethics Board of 31 January 1997 and 1 July 2008, the Code of Ethics of 29 January 2008, and the Rules of the Integrity Court (section 22). Section 23 (2) obliges the Integrity Court to inform the Dean and the Faculty Council of all proceedings pending before it in order for them to take further necessary measures as provided under the Regulations.
(vi) Rules of conduct concerning allegations of academically improper behaviour and fraud in science
54. On 17 April 2007 the Faculty Council adopted rules of conduct concerning allegations of academically improper behaviour and fraud in science (Pravila o postupanju pri optužbama za znanstveno nedolično postupanje i prijevaru u znanosti), published on 30 July 2007; the rules came into force in August 2007. The aim of these rules was to complement existing faculty regulations on the matter of, inter alia, plagiarism, and to regulate procedures for inquiry into such cases. It provided in particular “depending on the outcome of the proceedings, it is possible to take disciplinary measures and proceedings under the Rules of the Integrity Court, [Disciplinary] Regulations and other general regulations of the Faculty and the University” (para. II.1).
55. With regard to the institution of proceedings before the competent body concerning allegations of plagiarism, these Rules provided as follows:
“... the Dean shall decide whether disciplinary measures should be taken against the defendant and, if he or she finds it necessary, shall forward the case to the Integrity Court, which will establish and recommend such measures ... A final decision on the disciplinary measures will be adopted by the Faculty Council on the basis of the suggestion of the Integrity Court.”
(e) Other relevant domestic law
(i) Civil Servants Act
56. The Civil Servants Act (Zakon o državnim službenicima, Official Gazette no. 92/2005, with further amendments) provides in section 2 that civil servants are those employed in State bodies, judicial bodies, penal institutions, the administrative staff of the Croatian Parliament, the administrative staff and officers of the Government of the Republic of Croatia, the administrative staff of the Constitutional Court of the Republic of Croatia, the administrative staff of the ombudsman, the administrative staff of the children’s ombudsman, the administrative staff of the gender equality ombudsman, the State Audit Bureau, the Office of the President of the Republic of Croatia, and other State bodies.
(ii) Administrative Disputes Act
57. The Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette nos. 53/1991, 9/1992 and 77/1992), as in force at the relevant time, provided as follows:
Section 39
“(1) The [Administrative] Court resolves the matter, in principle, on the basis of the facts established in the administrative proceedings.
(2) If the court finds that the dispute cannot be settled on the basis of the facts established in the administrative proceedings because there are inconsistencies related to the operative facts, or [the operative facts] are not fully or correctly established, or if [the administrative bodies] failed to observe the procedural rules of relevance for the outcome of the proceedings, the court shall adopt a judgment quashing the impugned administrative act. The administrative body is then obliged to comply with the findings in the judgment ...
(3) If the quashing of the impugned administrative act and re-examination of the case by the administrative body as provided under paragraph 2 of this section would cause serious damage to the claimant, or if it is obvious from the public documents or other evidence available in the case file that the facts are different from the one established during the administrative proceedings, or an administrative act in the same proceedings had already been quashed, and the competent body has failed to fully comply with the judgment, the court can establish the facts on its own and adopt a judgment or a decision on the basis of those facts.”
Section 42
“(1) The court adjudicates the matter by a judgment.
(2) By a judgment, [the court] upholds or dismisses as unfounded the [administrative] action. If the action is upheld, the court quashes the contested administrative act.
(3) When the court finds that a contested administrative act has to be quashed, it may adjudicate on the administrative matter by a judgment if the nature of things allows and if the information from the procedure provides a reliable basis. Such judgment replaces the quashed [administrative] act in all respects.
...”
Section 62
“(1) When the court quashes an [administrative] act against which an administrative dispute was initiated, the proceedings shall be reinstated to the stage in which they were prior to the adoption of the quashed act. If by the nature of the matter in dispute a new act has to be adopted instead of the annulled administrative act, the competent body is obligated to adopt it without any delay, at the latest within the period of thirty days from the day of service of the judgement.
(2) The competent body is bound by the legal standpoint of the court and by the comments of the court concerning the procedure.”
Section 63
“(1) If the competent body, after the annulment of an administrative act, adopts an administrative act contrary to the legal standpoint of the court or contrary to the comments of the court regarding the procedure, and the claimant therefore submits a new complaint, the court shall annul the contested act and, as a rule, adjudicate the matter on its own by a judgement. Such judgement replaces the act of the competent body in all respects.
...”
Section 66
“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.”
58. According to the conclusion reached at the plenary session of judges of the Administrative Court held on 26 October 1987, an action against an administrative act is to be considered a request for judicial protection within the meaning of section 66 of the Administrative Disputes Act if from the content of the action it transpires that it may concern a breach of rights or freedoms guaranteed by the Constitution. In such cases the Administrative Court could not review every breach of procedural or substantive law but only those that amount to breaches of constitutionally guaranteed rights or freedoms (see further Majski v. Croatia (no. 2), no. 16924/08, §§ 35-36, 19 July 2011).
59. According to the Administrative Court’s case-law (judgment no. Zpa-5/2004-5 of 2 December 2004), the requirements for affording judicial protection under section 66 of the Administrative Disputes Act, which must be met in their totality, are: (a) the request has to concern rights or freedoms expressly guaranteed by the Constitution, (b) those rights or freedoms were allegedly breached by a final decision which does not have the characteristics of an administrative act, and (c) the legal system does not provide for another judicial avenue of redress.
2. Relevant practice
60. In its decision no. U-I-902/1999 of 4 February 2000 the Constitutional Court explained that universities’ autonomous status encompasses the right of a university to determine its internal organisation and functioning in accordance with the law.
61. The autonomy of a university means that the university must be organisationally and functionally independent of all other bodies and institutions in carrying out its activities. The beneficiaries of the university’s autonomous status are also individual faculties and other organisational units within a university as well as all academic staff.
62. However, the Constitutional Court explained that there are inevitable limits to university autonomy imposed by those who establish, support or supervise the work of universities. These limits are expressed through laws and other regulations determining the functioning of a university. However, such limitations should not disproportionately affect the university’s autonomous status. In this respect the Constitutional Court identified the core aspects of university autonomy, which include, inter alia, the appointment of teachers.
63. For the case-law of the Constitutional Court and the High Administrative Court on the applicability of the guarantees of a fair trial in the administrative proceedings see Letinčić v. Croatia, no. 7183/11, §§ 29-31, 3 May 2016.
C. Relevant international material
64. In March 2011 the European Science Foundation (ESF), as a common platform of seventy eight member organisations from thirty countries, and the All European Academies (ALLEA), a European Federation of National Academies of Sciences and Humanities of fifty three member academies in forty countries, published the European Code of Conduct for Research Integrity as a “Europe-wide agreement on a set of principles and priorities for the research community”.
65. The European Code of Conduct for Research Integrity explains that researchers, and other research organisations, must observe and promote the principles of integrity in scientific and scholarly research. According to the Code, plagiarism is a violation of the rules of responsible conduct. It is defined as the appropriation of other people’s material without giving proper credit. The Code stresses that researchers must show fairness in providing references and giving credit for the work of others and that all authors, unless otherwise specified, should be fully responsible for the content of publication.
66. Attached to the Code is Annex I containing Recommended Principles for Investigating Research Misconduct, the relevant text of which reads as follows:
“Integrity of the process
• Investigations into research misconduct allegations must be fair, comprehensive and conducted expediently but without compromising accuracy, objectivity, and thoroughness.
• Those parties involved in the procedure must ensure that any interests they have which might constitute a conflict of interest are disclosed and managed.
• Detailed and confidential records will be maintained on all aspects of the procedure.
Uniformity
• Procedures for dealing with misconduct should be spelled out in sufficient detail so that the transparency of the process and uniformity within one domain of jurisdiction from one case to another is ensured.
Fairness
• Investigation of research misconduct allegations should be conducted in a manner that is fair to all parties and in accordance with relevant laws.
• Persons accused of research misconduct must be given full details of the allegation(s) in writing and allowed a fair process for responding to allegations, asking questions, presenting evidence, calling witnesses, and providing responses to information presented.
• Allow witnesses to be accompanied by or seek advice and assistance from anyone of their choosing.
• Proportionate action should be taken against persons found to have committed research misconduct.
• Any action(s) taken should be subject to appeal. Of course, there should be an authority issuing the final decision.
Confidentiality
• The procedure should be conducted as confidentially as possible, in order to protect those involved in the investigation. Such confidentiality should be maintained provided this does not compromise the investigation of the allegation, health and safety, or the safety of participants in research.
• Where possible any disclosure to third parties should be made on a confidential basis.
• If the organisation and/or its staff have legal obligations to inform third parties of research misconduct allegations, those obligations must be fulfilled at the appropriate time through the correct mechanisms.
No detriment
• Anyone accused of research misconduct is presumed innocent.
• No person should suffer any unnecessary penalty when accused of research misconduct before the allegation is proven.
• No person should suffer any penalty for making an allegation of research misconduct in good faith, but action should be taken against persons found to have made allegations in bad faith.”
COMPLAINT
67. The applicant complained that the proceedings against her as a university professor on charges of plagiarism had been unfair.
THE LAW
68. Complaining of a lack of fairness of the proceedings against her as a university professor on charges of plagiarism, the applicant invoked Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal established by law. ...”
A. The parties’ arguments
69. The Government argued that Article 6 was not applicable to the proceedings against the applicant on charges of plagiarism. They considered that Article 6 could come into play under its civil limb only when disciplinary proceedings before a specialised professional body could lead to a temporary suspension or prohibition on exercising the profession. The Government contended that this had not been the case in the present case. In their view, the proceedings against the applicant had not been disciplinary proceedings but a specific type of proceedings conducted for breaches of professional ethics, and the applicant had not risked suspension of or prohibition on continuing with her professional activities. It was true that under the Rules of the Integrity Court it was possible to propose instituting disciplinary proceedings, but this would not necessarily entail dismissal. Moreover, the Government considered that such proceedings would be time-barred, as the book had been published in 2001. They also stressed that it was true that in addition to a public reprimand the Integrity Court could have suggested removing a teacher from a position in the Faculty but the applicant had not held any such position. Lastly, the Government considered that the alleged damage to the applicant’s reputation and career development had been speculative and in any case had not been sufficient to bring Article 6 into play.
70. The applicant stressed that the proceedings against her on charges of plagiarism had had all the relevant features of disciplinary proceedings. She had been tried before a tribunal, which had examined evidence and pronounced a sanction related to her alleged breaches of ethical standards. In these proceedings she had risked various sanctions and even dismissal and loss of position in the Faculty. In this connection the applicant pointed out that the Government’s submissions as to the possible sanctions which she risked incurring were purely speculative and unfounded. Moreover, the applicant stressed that the public reprimand for plagiarism had adversely affected her professional and personal honour and dignity and her academic integrity. It had also entailed various adverse effects for her further career development. As a result of the public reprimand for plagiarism, she had been denied a Fulbright scholarship award and had had difficulty in being reappointed to the position of tenured professor at Zagreb University. Because of this she had eventually gone to Split, where she now lived and taught at the Medical School. In any case, in the applicant’s view, it was well known that professional integrity was the central concept determining the functioning and success of a researcher. She therefore considered that a public reprimand for plagiarism was a serious sanction directly affecting her position as a scholar and her position in academic society.
B. The Court’s assessment
71. It is the Court’s well-established case-law that disciplinary proceedings in which the right to continue to exercise a profession is at stake give rise to “contestations” (disputes) over civil rights within the meaning of Article 6 § 1 (see, for instance, Philis v. Greece (no. 2), 27 June 1997, § 45, Reports of Judgments and Decisions 1997‑IV; Gautrin and Others v. France, 20 May 1998, § 35, Reports 1998‑III; W.R. v. Austria, no. 26602/95, §§ 25-31, 21 December 1999; and Müller-Hartburg v. Austria, no. 47195/06, § 39, 19 February 2013). This principle has been applied with regard to proceedings conducted before various professional disciplinary bodies, such as those within a Medical Association (see, for instance, Gautrin and Others, cited above, § 33), a Chamber of Technology (see Philis, cited above, § 45) and a Lawyers’ Bar Association (see, for instance, Müller-Hartburg, cited above, §§ 39-40).
72. In this context it should also be noted that the applicability of Article 6 to disciplinary proceedings is not only determined by the sanctions which are actually imposed by the professional disciplinary bodies. What is important in this assessment is the sanctions which an individual risked incurring in the disciplinary proceedings (see W.R., cited above, §§ 29-30).
73. Accordingly, in the Gautrin and Others case (cited above, § 33) concerning a number of medical practitioners, some of whom had only been reprimanded, the Court, when examining whether the right to continue to practise medicine was at stake, had regard to the penalties the professional disciplinary bodies could impose. Moreover, in the case of Le Compte, Van Leuven and De Meyere v. Belgium (23 June 1981, § 49, Series A no. 43), where only a temporary suspension of the right to exercise the medical profession was at stake, the Court stressed that in the “contestations” (disputes) contemplated by Article 6 § 1 the actual existence of a “civil” right may be at stake, but so may the scope of such a right or the manner in which the beneficiary may avail himself or herself thereof.
74. In the case at hand the Court notes that the possible sanctions which could be imposed by the Integrity Court according to section 9 of its Rules were reprimand, public reprimand, proposal for the institution of proceedings for the adoption of a disciplinary sanction for serious breaches of work duties, and an ancillary sanction of suggesting the institution of proceedings for removal of a teacher from the position which he or she occupied in the Faculty (see paragraph 47 above). The serious breaches of work duties referred to in section 9 implied the possibility of a proposal for the institution of proceedings for dismissal, as provided under the Disciplinary Regulations (see paragraphs 51 and 55 above). Accordingly, dismissal as one of the possible sanctions for the applicant was only remotely put into the prospect, further proceedings being necessary in order for dismissal to be even potentially applied.
75. The Court considers that this prospect of dismissal cannot be equated to the situation where the possibility of suspension of the right to continue with a professional activity is a sanction which may be applied directly in the context of disciplinary proceedings (see paragraphs 71-73 above). Accordingly, in this connection Article 6 cannot come into play (compare Yıldız v. Turkey (dec.), no. 65182/10, § 39, 24 January 2017). In this connection it is recalled that the result of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see, for instance, Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 71, ECHR 2016 (extracts)).
76. With regard to the applicant’s argument that the proceedings in question affected her professional reputation, the Court notes that in order for Article 6 to come into play, the outcome of the proceedings must be decisive for a “civil right”. This will be the case where the outcome of the proceedings depends on an assessment of an unjustified attack and harm to good reputation (see, for instance, Helmers v. Sweden, 29 October 1991, § 29, Series A no. 212‑A).
77. In the case at issue, it was not the applicant’s professional reputation in itself which was the subject matter of the proceedings but the question whether she had plagiarised parts of her book. The question of good reputation was only remotely related to the proceedings in question as one of the possible consequence of the findings of plagiarism. However, in the case at issue, the applicant continued exercising her profession as a university teacher and researcher by assuming functions in the University of Split School of Medicine. It cannot therefore be said that the proceedings at issue even remotely affected her professional reputation sufficiently seriously.
78. In these circumstances, and in view of its case-law, the Court does not consider that Article 6 is applicable.
79. It follows that the applicant’s complaint is incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3 (a) and should be rejected in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court, by a majority,
Declares the application inadmissible.
Done in English and notified in writing on 15 June 2017.
Hasan BakırcıIşıl Karakaş
Deputy RegistrarPresident
Full & Egal Universal Law Academy