SECOND SECTION
DECISION
Application no. 43519/07
Ivan MILOJEVIĆ against Serbia
and 2 other applications
(see list appended)
The European Court of Human Rights (Second Section), sitting on 3 September 2013 as a Chamber composed of:
Guido Raimondi, President,
Danutė Jočienė,
Peer Lorenzen,
Dragoljub Popović,
Işıl Karakaş,
Nebojša Vučinić,
Paulo Pinto de Albuquerque, judges,
and Stanley Naismith, Section Registrar,
Having regard to the above applications lodged between 5 September 2007 and 3 October 2007,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Mr Ivan Milojević (“the first applicant”), Mr Miodrag Radosavljević (“the second applicant“) and Mr Petar Veličković (“the third applicant“) are all citizens of Serbia who were born in 1978, 1952 and 1962, respectively. The first and the second applicants live in Ćuprija, while the third applicant lives in Niš.
I. THE CIRCUMSTANCES OF THE CASE
A. Introduction
2. The applicants were employed as police officers. They were all charged with the commission of different criminal offences. They were dismissed from the police force pursuant to section 45 of the Ministry of Interior Act 1991 which was in force at the time. According to this provision a police officer could be dismissed, at the discretion of the Ministry of Interior, if criminal proceedings had been initiated against him. Subsequently, all the applicants were acquitted. However, their dismissals remained in force. They unsuccessfully challenged their dismissals in civil proceedings before the national courts.
B. As regards the first applicant
3. On 26 April 2004 a criminal complaint was lodged against the applicant with the Jagodina District Court (“the District Court”). He was reported to have allegedly instigated his superior, the second applicant, to abuse power. He was arrested the same day and criminal proceedings were instituted against him.
4. On 26 April 2004, simultaneously with the initiation of criminal proceedings, the Ministry of Interior instituted disciplinary proceedings against the applicant. He was suspended from the police force on the same day, pending the decision of the Disciplinary Court.
5. On 5 May 2004 the Ćuprija Municipal Prosecutor indicted the applicant for the alleged instigation of the abuse of power.
6. On 7 June 2004 the Ministry of Interior rendered a decision by which the applicant was dismissed from the police force. The decision was based on section 45 of the Ministry of Interior Act 1991 which was in force at the time of the dismissal, according to which a police officer could be dismissed if he ceased to fulfil the requirements for employment under section 34 of the same Act. According to section 34(1)(2) of the Ministry of Interior Act 1991, a candidate for police officer could not be employed if he or she was under criminal investigation or was indicted for a crime which was prosecuted ex officio. The applicant lodged an appeal against this decision. On 16 July 2004 the second-instance administrative body rejected his appeal, confirming the dismissal.
7. On 27 August 2004 the disciplinary proceedings against the applicant were stopped without any decision on the merits. The Disciplinary Court concluded that the applicant had already been dismissed from the police force due to the initiation of the criminal proceedings against him and that this fact rendered the disciplinary proceedings redundant.
8. On 29 November 2004 the Ćuprija Municipal Court (“the Municipal Court”) acquitted the applicant. On 29 March 2005 the District Court confirmed this decision and the applicant’s acquittal became final.
9. Shortly after the applicant’s acquittal in criminal proceedings, he instituted civil proceedings in which he requested the annulment of the above decisions on dismissal. On 10 March 2006 the Municipal Court accepted the applicant’s claim and ordered the Ministry of Interior to reinstate him in his previously held post. The court essentially held that the formulation of section 45 of the 1991 Ministry of Interior Act left broad discretionary powers to the Ministry of Interior to dismiss its employees even when no criminal responsibility was attributable to them. It concluded that this legal solution leaves the unlimited room for abuse of this authority. It also observed that the applicant had been acquitted in criminal proceedings instituted against him. Finally, the court noted that the applicant had been dismissed without any determination of his disciplinary responsibility but solely through the use of the discretionary power left to the Ministry by section 45 of the 1991 Ministry of Interior Act and without any further reasoning.
10. On 2 November 2006 the District Court upheld the decision and reasoning of the Municipal Court.
11. On 25 April 2007 the Supreme Court quashed the above decision and decided that the applicant’s dismissal was lawful. According to the Supreme Court, the Ministry of Interior had used its discretionary right under section 45 of the Ministry of Interior Act 1991 in accordance with the law. It concluded that the applicant’s acquittal in the criminal proceedings and the absence of a decision on the merits in the disciplinary proceedings were irrelevant for his dismissal. It also held that the lower courts had overstepped the limits of their authority when they had deliberated on the necessity, proportionality and correctness of the dismissal decision.
C. As regards the second applicant
12. On 26 April 2004 a criminal complaint was lodged against the applicant with the District Court. He was reported to have allegedly committed the crime of abuse of power. He was arrested the same day and criminal proceedings were instituted against him.
13. On 26 April 2004, simultaneously with the initiation of the criminal proceedings, the Ministry of Interior instituted disciplinary proceedings against the applicant. He was suspended from the police force on the same day, pending the decision of the Disciplinary Court.
14. On 5 May 2004 the Municipal Prosecutor indicted the applicant for the alleged abuse of power.
15. On 7 June 2004 the Ministry of Interior rendered a decision by which the applicant was dismissed from the police force. The reasoning of the decision was identical to that in the case of the first applicant. On 19 July 2004, the second-instance administrative body confirmed this decision.
16. On 27 August 2004 the disciplinary proceedings against the applicant were stopped without any decision on the merits for the same reasons as in the case of the first applicant.
17. On 29 November 2004 the Municipal Court acquitted the applicant. On 29 March 2005 the District Court confirmed this decision and the applicant’s acquittal became final.
18. The applicant instituted civil proceedings after the acquittal, in which he requested the annulment of the above decision on dismissal. On 25 April 2005 the Municipal Court accepted the applicant’s claim and ordered the Ministry of Interior to reinstate him in his previously held post. The reasoning of the court was essentially the same as in the case of the first applicant.
19. On 8 July 2005 the District Court upheld the decision and reasoning of the Municipal Court.
20. On 27 March 2007 the Supreme Court quashed the above decisions for the same reasons as in the case of the first applicant.
D. As regards the third applicant
21. On 19 October 1999, the Vranje District Prosecutor lodged an indictment with the Vranje District Court (“the District Court”) against the applicant for the alleged unauthorised possession of weapons and ammunition. On 17 December 1999 the Vranje District Court found him guilty as charged and sentenced him to one year of imprisonment.
22. On 14 June 2000 the Ministry of Interior rendered a decision by which the applicant was dismissed from the police force with the same reasoning as in the case of the first and the second applicants. On 13 July 2000 the second-instance administrative body confirmed the above decision. No disciplinary proceedings were instituted against the applicant.
23. On 6 November 2001 the Supreme Court confirmed the applicant’s conviction in criminal proceedings. The applicant lodged a request for the re-opening of the proceedings, which was granted. On 2 September 2005 the Vranje District Court acquitted the applicant. On 22 February 2006 the Supreme Court confirmed the acquittal.
24. Shortly after the applicant was acquitted in the criminal proceedings, he instituted civil proceedings in which he requested the annulment of the 14 June 2000 decision on dismissal. On 18 October 2006 the Vranje Municipal Court accepted the applicant’s claim and ordered the Ministry of Interior to reinstate the applicant on his previously held post. On 7 February 2007 the Vranje District Court quashed this decision, giving essentially the same reasons as in the decisions of the Supreme Court delivered in the cases of the first and the second applicants. On 3 August 2007 the Supreme Court upheld this decision.
E. Other relevant facts submitted by the applicants
25. The third applicant was a co-defendant in the criminal proceedings with another police officer, G.M., who was indicted for the commission of the same crime as the applicant and was acquitted. G.M. is still employed as a police officer.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Constitution (Ustav published in the Official Gazette of the Republic of Serbia – OG RS – no. 98/06)
26. The relevant provisions of the Constitution read as follows:
Article 32
Everyone shall have the right to a public hearing before an independent and impartial tribunal established by the law within a reasonable time which shall pronounce judgment on their rights and obligations, grounds for suspicion resulting in initiated procedure and accusations brought against them.
Article 34
...
3. Everyone shall be presumed innocent of a criminal offence until convicted by a final judgment of the court.
B. Ministry of Interior Act 1991 (Zakon o unutrašnjim poslovima published in the OG RS nos. 44/91, 79/91, 54/96, 17/99, 33/99, 25/2000, 8/2001 and 106/2003)
27. The relevant provisions of this Act read as follows:
Section 34
A person can be employed by the Ministry of Interior in the post of a police officer and the employee responsible for specific duties if, besides fulfilling the general requirements for employment in the civil service, he also fulfills the following special requirements:
1) that the person was not convicted of criminal offences against constitutional order and security, the armed forces, economy and property, abuse of power and crimes motivated by financial gain or immoral motives;
2) that no criminal proceedings are pending against the person for criminal offences which are prosecuted ex officio and that the person is not precluded from conduct of employment or duties by a final decision of a court, as long as such preclusion is in force.
...
Section 45
An employee of the Ministry of Interior shall be dismissed ex lege if convicted by a final decision of a court for crimes enumerated in section 34(1)(1) of this Act; an employee of the Ministry of Interior can also be dismissed if he or she ceases to fulfill the requirements of section 34(1)(2) of this Act or it is subsequently discovered that he or she did not meet the requirements for employment in the civil service at the time of employment.
C. Civil Service Act 1991 (Zakon o radnim odnosima u državnim organima published in OG RS nos. 48/91, 66/91, 44/98, 49/99, 34/2001 and 39/2002)
28. The relevant provision of this Act reads as follows:
Section 6
A person can enter into the civil service if he or she fulfils following requirements:
1) to be a national of SFR Yugoslavia;
2) to be over 18 years old;
3) to fulfil general health requirements;
4) to have adequate education;
5) to never have been sentenced for commission of a crime to more than 6 months’ imprisonment and never have been convicted for a crime which makes that person unsuitable for the civil service;
6) to fulfil other requirements stipulated by law or other rules or by the act on systematisation of a particular organ.
C. Practice of the Constitutional Court
29. The Constitutional Court has so far delivered two decisions in cases with essentially the same factual background as those in the present cases (Stefanović v. Serbia, UŽ-753/2008, 19 January 2011 and Radovanović v. Serbia, UŽ-1757/2009, 27 September 2012). The relevant parts of the decision from 27 September 2012 read as follows:
The Constitutional Court finds that section 45 of the Ministry of Interior Act provides for a possibility, but not an obligation, of delivering the decision on termination of employment of a police officer when criminal proceedings are opened against him for criminal offences that are prosecuted ex officio.
Therefore, the only condition that needs to be met at the moment of the delivery of the decision on termination of employment which is founded on the discretionary power from the quoted section of the Act is that criminal proceedings against a police officer are ongoing.
In the opinion of the Constitutional Court, the possibility of the dismissal of a police officer in accordance to section 45 of the Ministry of Interior Act has been introduced precisely for the purpose of protecting the specific nature of the Ministry’s work and its particular significance for State affairs. On the other hand, the actual utilisation of this possibility presupposes the limitation of the rights of individuals for the protection of the public interest. Every limitation of individual rights must be necessary for the achievement of the legitimate goal and that goal is, in this case, the protection of the interests of police integrity.
The Constitutional Court points out that the civil courts in labour disputes, when deciding on the annulment of an act delivered on the basis of discretionary power, are bound to examine the lawfulness of such acts. In this particular case, this means that the civil courts should have examined if the decision on the termination of employment could be delivered and if the conditions for its delivery required by law were met. This means that the legality of the decision on termination of employment should be assessed in the light of the circumstances of a specific case at the moment of the delivery of the decision. It is the Constitutional Court’s opinion that the subsequent acquittal of the applicant in the criminal proceedings cannot be of relevance when assessing the legality of the impugned decision on termination of employment, since the Ministry of Interior Act prescribes as the only condition for the dismissal the initiation of the criminal proceedings at the time of the delivery of the decision.
The Ministry of Interior Act, however, has no instructions on the legal consequences of the final judgment of a criminal court by which the defendant is acquitted and the influence of such decision on the police officer’s dismissal.
Since the Ministry of Interior Act gives discretionary power to the competent authority to use or not to use its right to dismiss a police officer if criminal proceedings are instituted against him, and since no provision of this Act provides an answer on what are the legal consequences of the acquittal of the former employee, the Constitutional Court holds that in this particular case it was necessary for the civil courts to, besides the assessment of the legality of the decision on dismissal, assess the issue of the proportionality between the legitimate aim which was ought to be achieved by these decisions on one side and individual rights on the other.
The ordinary courts in this case failed to assess the nature of the limited rights, the aim of that limitation, the achievement of such aim and proportionality between the legitimate aim and the consequences of the limitation of individual rights produced by the decision on dismissal reached in accordance with discretionary powers from section 45 of the Ministry of Interior Act [...], which resulted in violation of the applicant’s right to a fair trial and his right to work.
30. In its decision from 19 January 2011 the Constitutional Court also noted:
The Constitutional Court finds that the potential use of discretionary powers [under section 45 of the Ministry of Interior Act] contrary to the purpose for which it was established, or potential abuse of such power, had to be a subject of deliberation in the civil proceedings against the impugned decision on dismissal before the ordinary courts. In the opinion of the Constitutional Court, these proceedings are a ‘corrective measure’ in cases where the discretionary power was used contrary to the purpose for which it was established, especially since the Ministry of Interior Act did not prescribe what will happen to an employee who was dismissed [on the grounds of section 45], but who was acquitted by a final decision in criminal proceedings or the indictment against him was withdrawn.
[...]
On the basis of what has been stated, the Constitutional Court holds that, from the perspective of the right to fair trial, the ordinary courts were obliged to examine if in this specific case the discretionary power of the employer prescribed by Section 45 of the Ministry of Interior Act was exercised contrary to its purpose...
The Constitutional Court determines that the impugned judgments of the District Court [...] and the Supreme Court [...] violated the applicant’s right to fair trial...
COMPLAINTS
31. The applicants complain under Article 6 § 2 of the Convention that the domestic authorities violated their right to be presumed innocent until proved guilty in accordance with law by dismissing them from the police force solely on the basis of the indictments which have never been proven.
32. The third applicant, Mr. Veličković, relying on Article 6 § 1 of the Convention, also essentially complains that the decisions of the domestic authorities were arbitrary and lacked sufficient reasons. In particular, he complains that the domestic courts failed to address the absence of reasons for which the Ministry of Interior decided to use its discretionary power to dismiss him from the police service. The first and second applicants, without relying on any particular provision of the Convention, make essentially the same complaint.
33. All three applicants complain that their dismissal from the police service which was based on the allegation of criminal offences for which they have been acquitted brought great shame on them, especially since they lived and worked in small communities. They also complain that such dismissal deprived them of substantial livelihood. They do not rely on any particular provision of the Convention while raising these issues.
THE LAW
A. Joinder of the applications
34. The Court considers that, in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined, given their common factual and legal background.
B. The applicants’ complaints under Article 6 § 2 of the Convention
35. The applicants complain that the domestic authorities violated their right to be presumed innocent until proved guilty in accordance with law by dismissing them from the police force solely on the basis of the indictments which have never been proven. They relied in this regard on Article 6 § 2 of the Convention, which provides:
“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
36. The Court reiterates that the concept of a “criminal charge” in Article 6 is an autonomous one. According to its established case-law there are three criteria to be taken into account when deciding whether a person was “charged with a criminal offence” for the purposes of Article 6, namely the classification of the proceedings under national law, their essential nature and the type and severity of the penalty that the applicant risked incurring (see Allen v. the United Kingdom, no. 25424/09 [GC], § 95, 12 July 2013; Phillips v. the United Kingdom, no. 41087/98, § 31; A.P., M.P. and T.P. v. Switzerland, judgment of 29 August 1997, Reports of Judgments and Decisions 1997-V, § 39). Moreover, the scope of Article 6 § 2 of the Convention is not limited to pending, discontinued or completed criminal proceedings that resulted in the acquittal (see Allen, cited above, § 94; Allenet de Ribemont v. France, 10 February 1995, § 35, Series A no. 308; Minelli v. Switzerland, 25 March 1983, Series A no. 62 and Sekanina v. Austria, 25 August 1993, Series A no. 266‑A). Its scope also extends to various administrative or civil proceedings conducted simultaneously with criminal proceedings against an applicant or after the conclusion of criminal proceedings ending without a guilty verdict (see Allen, cited above, § 98; Vassilios Stavropoulos v. Greece, no. 35522/04, 27 September 2007; Rushiti v. Austria, no. 28389/95, 21 March 2000 and Lamanna v. Austria, no. 28923/95, 10 July 2001). Where criminal proceedings end with the acquittal, the lack of a person’s criminal conviction shall, in compliance with the principle of the presumption of innocence, be preserved in any other proceedings of whatever nature, provided that such proceedings were linked to the criminal trial in such a way as to fall within the scope of Article 6 § 2 (see Allen, cited above, §§ 99-102 and § 104; Y v. Norway, no. 56568/00, § 39, ECHR 2003‑II (extracts); Ringvold v. Norway, no. 34964/97, § 41, ECHR 2003-II; Moullet v. France (no. 2) (dec.), no. 27521/04, CEDH 2007‑X). Such link is considered to exist when the issues raised in these proceedings are a consequence and the concomitant of the criminal proceedings concerned, in which the applicant was the “accused” (see Allen, cited above, §§ 99-100; Moullet v. France (no. 2), cited above; Matos Dinis v. Portugal, (dec.), no. 61213/08, § 35, 2 October 2012). It is the established practice of the Court that the proceedings on person’s dismissal from public service can fall within the ambit of Article 6 § 2 if the above conditions are met (see Allen, cited above, § 98; Šikić v. Croatia, no. 9143/08, 15 July 2010; Çelik (Bozkurt) v. Turkey, no. 34388/05, 12 April 2011 and Vanjak v. Croatia, no. 29889/04, 14 January 2010).
37. The Court recalls that the presumption of innocence is infringed if a statement of a public official concerning a person charged with a criminal offence reflects the opinion that he is guilty, unless he has been proved so according to law. It suffices, even in the absence of any formal finding, that there is some reasoning to suggest that the official regards that person as guilty (see Allen, cited above, § 126; Daktaras v. Lithuania, no. 42095/98, § 41, ECHR 2000‑X and A.L. v. Germany, no. 72758/01, § 31, 28 April 2005). The only basis on which the present applicants can bring a complaint about a breach of the presumption of innocence in relation to their dismissal is by alleging that official statements in the context of the dismissal proceedings and the subsequent civil proceedings amounted to an unequivocal declaration of their guilt which could have prejudged the subsequent assessment of the charges against them in the context of the ensuing criminal proceedings or cast doubt on the correctness of their acquittal once the criminal proceedings were finalised without a guilty verdict (see, mutatis mutandis, Jakumas v. Lithuania, no. 6924/02, § 57, 18 July 2006 and Y v. Norway, cited above, § 46).
38. The Court notes that in the present case the administrative proceedings concerning the applicants’ dismissal ran parallel to the criminal proceedings against them. These administrative proceedings were finished with the applicants’ dismissal prior to their acquittal in criminal proceedings. The Court further notes that the administrative bodies in the dismissal proceedings and the domestic courts reviewing the administrative decisions explicitly stated that criminal responsibility of the applicants was irrelevant for their dismissal. They clearly distinguished between the applicants’ criminal responsibility and the grounds for their dismissal. The Court observes that the contentious issues examined by the national administrative bodies and the civil courts in the present case, albeit closely linked to the criminal proceedings against the applicants, contained no consideration of the alleged criminal responsibility imputed to them in criminal proceedings (see, mutatis mutandis, Allen, cited above, § 134; Matos Dinis, cited above, § 43). The Court is of the opinion that the conclusions of the administrative bodies had no influence or prejudicial effect on the criminal proceedings against the applicants (see C. v. the United Kingdom, no. 11882/85, Commission decision of 7 October 1987, DR 54, p. 162, and Šikić, cited above, § 46) nor did the conclusions of the courts in the civil proceedings cast any doubt on the correctness of their acquittal (see, a contrario, Y v. Norway, cited above, § 46). The Court finds that the domestic authorities made no statement which could call into question the applicants’ right to be presumed innocent. The applicants’ complaints under Article 6 § 2 of the Convention are, therefore, manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
C. The applicants’ complaints on the alleged lack of reasoning of the domestic decisions, infringement of their right to reputation and deprivation of substantial livelihood
39. The applicants complain, under Article 6 § 1 of the Convention, that the decisions of the domestic authorities in administrative and civil proceedings regarding their dismissal were arbitrary and lacked sufficient reasons.
40. They also complain, without relying on any particular provision of the Convention, that their dismissal from the police service which was based on the allegation of criminal offences for which they have been acquitted violated their right to reputation and that it unjustifiably denied them their substantial livelihood. The Court, being the master of characterisation, considers that these complaints fall to be examined under Article 8 of the Convention.
41. The relevant part of Article 6 § 1 reads as follows:
1. In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly ...
42. The relevant part of Article 8 reads as follows:
1. Everyone has the right to respect for his private and family life ...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
43. The Court considers that it cannot, on the basis of the case file, determine the admissibility of the applicants’ complaint concerning the lack of reasoning in the domestic decisions and the complaint concerning the right to privacy, and that is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
For these reasons, the Court unanimously
Decides to join the applications;
Decides to adjourn the examination of the applicants’ complaints under Articles 6 § 1 and 8 of the Convention;
Declares the remainder of the applications inadmissible;
Stanley NaismithGuido Raimondi
RegistrarPresident
APPENDIX
List of applications
43519/07Milojević v. Serbia43524/07Radosavljević v. Serbia45247/07Veličković v. Serbia
Full & Egal Universal Law Academy