Information Note on the Court’s case-law No. 125
December 2009
Parlov-Tkalčić v. Croatia - 24810/06
Judgment 22.12.2009 [Section I]
Article 6
Civil proceedings
Article 6-1
Impartial tribunal
Independent tribunal
Impartiality of a court whose president had previously filed a criminal complaint against the applicant: no violation
Facts – In 1992 the applicant brought an action in damages against an insurance company. The first-instance court found in the applicant’s favour and she collected the amount awarded to her. In March 1993 that judgment was rectified since it contained a clerical error, as a result of which the applicant had received a higher amount of interest than she had been entitled to. In September 1993 Judge M.M., who had at that time served as the president of the first-instance court which had decided the applicant’s case, filed a criminal complaint against the applicant considering that in refusing to return the unlawfully obtained amount she had committed a criminal offence. The criminal charges against the applicant were eventually dropped. Meanwhile, in August 1993, the insurance company brought a civil action against the applicant for unjust enrichment seeking to recover the overpaid interest. The first-instance court decided in favour of the insurance company, and the applicant appealed. At the same time she lodged a request for a transfer of jurisdiction, since Judge M.M. had meanwhile become president of the appeal court which, in her view, could not, therefore, be regarded as an impartial tribunal. The Supreme Court dismissed the applicant’s request holding that the circumstances described could not cast doubt on the professional and objective examination of her appeal. The applicant’s appeal, as well as her subsequent constitutional complaint, were eventually dismissed as ill-founded.
Law – Article 6 § 1: The Court noted that Judge M.M. had not sat on the panel of judges which decided the applicant’s appeal, nor had the applicant adduced any evidence to indicate personal bias on the part of any of the judges in that panel. Instead, she had questioned the appeal court’s impartiality on the ground that its president had previously filed a criminal complaint against her based on the same facts as those on which the insurance company had based its action for unjust enrichment. The Court was thus called upon to determine whether in the circumstances the president of the appeal court could have compromised the impartiality of the entire tribunal. Judge M.M. had no personal interest in either the criminal or civil proceedings against the applicant. He had filed a criminal complaint in his official capacity as the president of the first-instance court pursuant to the relevant provisions of the Criminal Procedure Act, rather than in his own name. Moreover, more than seven years had elapsed between the filing of that complaint and the lodging of the applicant’s appeal. However, given that the concept of objective impartiality was closely linked to that of independence and that the absence of sufficient safeguards securing the independence of judges within the judiciary, in particular, vis-à-vis their judicial superiors could give rise to an issue of partiality, the Court had to examine whether the judges who had actually decided the applicant’s appeal were sufficiently independent of the court president. Under Croatian law court presidents performed only administrative functions, which were strictly separated from judicial functions. Judge M.M. could not therefore have taken advantage of his hierarchical position to give the rapporteur or other members of the panel instructions as to how to decide the applicant’s appeal. Furthermore, domestic law provided clear rules governing the distribution of cases to judges within courts, which meant that Judge M.M. was unable to influence the choice of the judge rapporteur or the composition of the panel hearing the applicant’s appeal. Lastly, even though under domestic law at the material time the president of a court played a role in the career advancement and discipline of judges, his powers were rather limited. On the whole, Croatian law at the material time had adequate mechanisms to prevent improper interference within the judiciary and the powers vested in the court presidents could not have reasonably been viewed as having a “chilling” effect on the judges.
Conclusion: no violation (five votes to two).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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