I incorrectly predicted that there's no violation of human rights in KUNŠTEK v. CROATIA.

Judgment

FIRST SECTION
CASE OF KUNŠTEK v. CROATIA
(Application no. 47292/14)

JUDGMENT

STRASBOURG
18 March 2021
This judgment is final but it may be subject to editorial revision. In the case of Kunštek v. Croatia,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Péter Paczolay, President,Gilberto Felici,Raffaele Sabato, judges,and Attila Teplán, Acting Deputy Section Registrar,
Having regard to:
the application (no. 47292/14) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Rikard Kunštek (“the applicant”), on 23 June 2014;
the decision to give notice to the Croatian Government (“the Government”) of the complaint concerning access to a court and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 16 February 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application concerns the alleged failure of the Constitutional Court to examine all of the three timely appeals lodged by the applicant, a former judge, in the disciplinary proceedings which resulted in his removal from office. THE FACTS
2. The applicant was born in 1962 and lives in Krapina. He was represented by Mr V. Leskovar, an advocate practising in Pregrada. 3. The Government were represented by their Agent, Ms Š. Stažnik. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. On 23 January 2010 police officers in Krapina noticed a vehicle swerving from one side of the road to the other and pulled it over. The vehicle was being driven by the applicant, who was a judge of the Krapina Municipal Court at the time. The test conducted on the spot and subsequent tests showed that his blood alcohol content was above the permissible level. The Government’s and the applicant’s account of this event differ as to whether the applicant was actively or only passively resisting the police officers, and whether he made threats against them or not. 6. On 31 May 2010 the President of the Krapina Municipal Court instituted disciplinary proceedings against the applicant before the National Judicial Council, proposing that he be reprimanded. He was charged with the disciplinary offence of damaging the reputation of the court and judicial office. 7. By a decision of 8 March 2012, the National Judicial Council found the applicant guilty as charged of making threats against the police officers – conduct unbecoming of a judge – and imposed a disciplinary measure of removal from office. 8. The applicant initially lodged two appeals against that decision. The first appeal was eleven pages long, was not dated and, even though it had the applicant’s advocate’s stamp on it, seemed to have been prepared by the applicant himself (“the first appeal”). The second appeal was seven pages long, was dated 6 July 2012, had the applicant’s advocate’s stamp on it and seemed to have been prepared by the advocate (“the second appeal”). Postal records show that both appeals were sent on 11 July 2012 and received by the National Judicial Council on 12 July 2012. 9. By a letter of 24 September 2012, the National Judicial Council forwarded those two appeals to the Constitutional Court and in so doing mistakenly referred to case file no. U-IX-2253/2012, which was the number that had been assigned to one of the applicant’s appeals lodged in the concurrent suspension proceedings (see paragraphs 15-16 below). In the letter, the National Judicial Council remarked that the appeals had been erroneously submitted to it instead of to the Constitutional Court directly. 10. On 19 February 2013 the applicant lodged another appeal (“the third appeal”) which was four pages long, prepared by the applicant himself and dated 19 February 2013. The National Judicial Council received it on 21 February 2013 and then forwarded it to the Constitutional Court, which registered it under case file no. U-IX-1182/2013. In the third appeal the applicant stated that he maintained all the arguments he had set out in the first two appeals (see paragraph 8 above). However, in the third appeal he also added a new argument, stating that prosecution of the disciplinary offence in question had become time-barred. 11. According to the Government, the mention of the previous two appeals in the third appeal prompted the judge rapporteur and the law clerk assigned to the applicant’s case to consult case file no. U-IX-2253/2012 (see paragraph 9 above), that is to say, one of the case files concerning the applicant’s suspension from office (see paragraphs 15-16 below), in which they found his two previous appeals (see paragraph 8 above). They considered that in his first appeal the applicant had raised the same arguments as in the third appeal, save for the argument concerning the statutory limitation period (see paragraphs 8 and 10 above). They therefore concluded that only the second appeal had to be taken out of the case file concerning the applicant’s suspension (no. U-IX-2253/2012, see paragraphs 9 above and 15-16 below) and inserted into the case file concerning his removal from office (no. U-IX-1182/2013). 12. In a letter of 7 November 2013, the Constitutional Court invited the National Judicial Council to reply to the applicant’s argument concerning the expiry of the statutory limitation period. The letter indicated that copies of the applicant’s appeals of 6 July 2012 (the second appeal, see paragraph 8 above) and of 19 February 2013 (the third appeal, see paragraph 10 above) were attached to it. 13. By a decision of 18 December 2013, the Constitutional Court dismissed the applicant’s appeals against the National Judicial Council’s decision of 8 March 2012. The relevant parts of that decision read as follows:
DECISION
“The appeal is dismissed. Reasons
I. PROCEEDINGS BEFORE THE CONSTITUTIONAL COURT
1. R.K., a judge of the Krapina Municipal Court ... lodged an appeal ... against the decision of the National Judicial Council (‘the NJC’) ... of 8 March 2012. By that decision, the NJC found the appellant guilty of damaging the reputation of the court and of judicial office – conduct contrary to the main principles of the Code of Judicial Ethics – thereby committing a disciplinary offence defined in sub‐paragraph 6 of section 20(1) of the National Judicial Council Act ...
As a result of the disciplinary offence committed, the disciplinary sanction of removal from office was imposed on the appellant. 2. The appellant lodged several appeals with the Constitutional Court against [the decisions] of the President of the Krapina Municipal Court imposing or extending the measure of temporary suspension from judicial office. ...
III. THE APPELLANT’S SUBMISSIONS
5. The appellant opposes the NJC’s view that his conduct damaged the reputation of the court and judicial office, stating in essence that such a conclusion did not follow from either the documents in the case file or the police record describing the appellant’s conduct on the date in question. The appellant disputes ... the reasoning of the NJC’s decision, according to which the witnesses examined were clear and specific in their statements, which tallied with and complemented each other, and [according to which] there were no circumstances that could call into question the credibility of their statements about the decisive [facts]. In the very extensive presentation of his arguments, the appellant does not adduce constitutionally relevant arguments, but aims instead to argue against the reasons and conclusions in the NJC’s decision, the manner in which it was adopted, the manner in which the witnesses gave their statements, and the conduct of the police officers, because he is of the opinion that the intention was to present his case as being more serious than it really is. He finds it significant that by a judgment of 20 December 2011 of the Krapina Minor Offences Court he was acquitted, for lack of evidence, of [having committed a traffic offence] on 20 December 2011 by swerving on the road with his car. The appellant considers that this fact calls into question the authenticity and reliability of the testimonies of the witnesses heard in the disciplinary proceedings. Lastly, he states:
‘It is also submitted that on 23 January 2013 the statutory limitation period [for prosecution of the offence] expired, given that three years had passed since commission of the disciplinary offence ...’
The appellant proposes that the appeal be allowed, the NJC’s decision quashed and the case remitted to the NJC for fresh examination, or that the NJC’s decision be overturned so that he can continue to serve as a judge. ...
V. THE CONSTITUTIONAL COURT’S ASSESSMENT
9. ... the Constitutional Court considers that the NJC conducted the proceedings for determining the appellant’s disciplinary liability impartially and gave clear and valid reasons in its decision as regards the extent of liability found. The NJC’s reasons for the particular disciplinary sanction, imposed in accordance with the ethical principles and rules on judges’ conduct, and which in the NJC’s view was proportionate to the nature of the disciplinary offence and the level of the appellant’s liability, were given in a constitutionally acceptable manner. In these circumstances it is of no relevance that the appellant was acquitted by a final judgment [adopted] in the minor-offence proceedings of the charge of ‘swerving on the road with his car’. In particular, the assessment of the appellant’s disciplinary liability and of the gravity of the disciplinary offence does not depend on a possible assessment by a minor offences court as to whether the appellant ‘was swerving on the road’, but on the relevant facts and circumstances established by taking evidence in the disciplinary proceedings conducted under the rules of criminal procedure while taking into account the procedural guarantees of the appellant’s rights of defence. As regards the appellant’s argument concerning the statute of limitations for instituting the disciplinary proceedings, the Constitutional Court considers the reasons given by the NJC to be constitutionally acceptable. Certain procedural delays operated in the appellant’s favour, and therefore their effects did not result in a violation of the appellant’s constitutional rights. 9.1. In its decision no. U-IX-3911/2009 of 24 September 2009 ... the Constitutional Court reiterated the basic principles of judicial office:
... The proper exercise of judicial office entails following the highest standards of professional behaviour and etiquette in general, even in the judge’s free time (the events in the appellant’s case occurred at 8 p.m.). A judge must always behave in such a way as to maintain the reputation of the judicial profession; in that sense, the appellant has grossly violated the principles of the Code of Judicial Ethics. In no way can the appellant’s physical and verbal conduct towards the police officers, described in greater detail in the reasoning of the NJC’s decision, be considered acceptable. This is all the more so because Krapina is a relatively small town, and it can thus be objectively assumed that most of its inhabitants know or can recognise each other. The appellant took flagrant advantage of this fact ... by making threats against the police officers as regards their job security ... This portrays the appellant in a particular light, as a person who wants to ‘dispense justice’ with his aggressive behaviour, which in a democratic society is absolutely incompatible with the European and international legal and civilizational standards listed in Constitutional Court decision no. U-IX-3911/2009.”
14. The Constitutional Court’s decision was served on the applicant on 16 January 2014. 15. Meanwhile, following the National Judicial Council’s decision of 8 March 2012 imposing the disciplinary measure of removal from office (see paragraph 7 above), in a decision of 16 March 2012 the President of the Krapina Municipal Court suspended the applicant for a period of three months until the Constitutional Court decided on his appeals and the decision of the National Judicial Council became final. That suspension was subsequently extended by the National Judicial Council in decisions of 14 June, 6 September and 16 November 2012 and 28 February, 6 June and 5 September 2013. 16. The applicant appealed to the Constitutional Court against each of those decisions. The first of those seven appeals was registered at the Constitutional Court under case file no. U-IX-2253/2012 (see paragraph 9 above). By a single decision of 18 December 2013, the Constitutional Court dismissed all the applicant’s appeals. 17. By a judgment of 20 December 2011, the Krapina Minor Offences Court, owing to a lack of sufficient evidence, acquitted the applicant of the minor offence of endangering road traffic by swerving with his car on the road on 23 January 2010 (see paragraph 5 above). 18. By a decision of 20 November 2013, the same court acquitted the applicant of the minor offence of driving under the influence of alcohol because it was not clear whether the test results concerning his blood alcohol content referred to the time of the commission of the offence or to the time when the test had been carried out (see paragraph 7 above). 19. By a decision of 16 March 2012, the Krapina Minor Offences Court found the applicant guilty of the minor offence of disturbing the public peace by making threats against the police officers (see paragraph 7 above) and imposed a fine. That judgment was overturned, following an appeal by the applicant, by a judgment of 13 February 2014 of the High Minor Offences Court acquitting him because prosecution of the offence had become time-barred. RELEVANT LEGAL FRAMEWORK
20. Under Croatian criminal procedure law, both the accused and his or her advocate have the right to lodge an appeal independently. 21. Section 30(1) of the 1993 National Judicial Council Act (Zakon o državnom sudbenom vijeću, Official Gazette no. 58/93 with further amendments), which was in force from 26 June 1993 until 20 October 2010, stipulated that the provisions of the relevant criminal procedure legislation applied in disciplinary proceedings before the National Judicial Council, mutatis mutandis, and as subsidiary rules. Section 29 provided that the judge in question could lodge an appeal with the Constitutional Court against the National Judicial Council’s decision on his or her removal from office. 22. Identical provisions are contained in sections 71(1) and 72(1) of the 2010 National Judicial Council Act (Zakon o državnom sudbenom vijeću, Official Gazette no. 116/10 with further amendments). Section 94(2) provides that the ongoing proceedings before the Council are to be conducted and concluded under the rules set out in the 1993 National Judicial Council Act. THE LAW
23. The applicant complained that the failure of the Constitutional Court to rule on two out of three of his appeals against the decision of the National Judicial Council of 8 March 2012 had rendered the proceedings against him unfair. He relied on Article 6 § 1 and Article 13 of the Convention. 24. Being master of the characterisation to be given in law to the facts of the case (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998-I, and Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 124, 20 March 2018), and having regard to its case-law (see Kudła v. Poland [GC], no. 30210/96, § 146, ECHR 2000-XI), the Court, when giving notice of the application to the Government, found that this complaint should be examined under Article 6 § 1 of the Convention alone. The relevant part of that Article reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing ... by [a] ... tribunal ...”
25. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. (a) The applicant
26. The applicant maintained his argument that the Constitutional Court had not decided on all three of the appeals lodged in his name (see paragraph 23 above). As regards the Government’s argument to the contrary (see paragraphs 11 above and 32 below), he submitted that the Government’s explanation had been concocted after he had lodged his application with the Court. Specifically, he alleged that only after the Government had been given notice of his application to the Court had the second appeal been taken out of the case file concerning his suspension and inserted into the case file concerning his removal from office. 27. The applicant further submitted that the Government’s contention that the first and third appeals were identical, save for the argument concerning the statutory limitation period (see paragraphs 11 above and 32 below), was illogical in view of the fact that the first appeal was eleven pages long, whereas the third appeal was only four pages long (see paragraphs 8 and 10 above). Those appeals had not been identical but had contained different grounds of appeal and different arguments. What was even more illogical was that the first appeal, which had undoubtedly concerned the decision on his removal from office, had been left in the case file concerning his suspension where it clearly did not belong. 28. Even assuming that the judge rapporteur and the law clerk of the Constitutional Court had taken the second appeal from the case file concerning his suspension and inserted it into the case file concerning his removal from office before he had lodged his application with the Court, the applicant submitted that their actions had been unlawful because it had not been for them to make an assessment as to whether the first appeal was, save for one ground of appeal, identical to the third appeal. Any such assessment should have been carried out by all the judges on the panel of the Constitutional Court which had examined his case. 29. Lastly, the applicant acknowledged that it had been the Constitutional Court’s practice, when deciding on two or more appeals lodged against a single decision of the National Judicial Council, to refer to an appeal in the singular, as submitted by the Government (see paragraph 31 below). However, that had been true only for the operative part of such decisions. In their reasoning, the Constitutional Court usually in some way indicated that multiple appeals had been lodged. 30. That was evident from the three Constitutional Court decisions to which the Government themselves had referred in their observations (see paragraph 31 below). The absence of such references in the reasoning of the Constitutional Court’s decision in his case (see paragraph 13 above) thus suggested that not all of his appeals had been taken into account. (b) The Government
31. The Government submitted that the Constitutional Court had decided on all three of the appeals lodged by the applicant against the decision on his removal from office (see paragraphs 8, 10 and 13 above). They stated that it had been the Constitutional Court’s practice, when deciding on two or more appeals lodged against a single decision of the National Judicial Council, to refer to an appeal in the singular in the reasoning of its decision (they referred to decisions nos. U-IX-2491/2015 of 19 November 2015, U‐IX-461/2014 of 17 April 2014 and U-IX-736/2006 of 23 March 2006.) 32. The Government admitted that the first two appeals by the applicant had initially been mistakenly inserted into the wrong case file (see paragraphs 9 and 11 above). However, that mistake had been rectified after the applicant had lodged his third appeal, in which he had referred to his previous two appeals (see paragraphs 8 and 10 above). The judge rapporteur and the law clerk assigned to the case had consulted the case file into which the previous appeals had been wrongly inserted and, after realising that the third appeal was identical to the first (save for the argument concerning the statutory limitation period), had inserted the second appeal into the proper case file (see paragraph 11 above). 33. That rectification had been done before the Constitutional Court had reached its decision in the applicant’s case on 18 December 2013 (see paragraph 13 above). The applicant’s allegations that the parts of the Constitutional Court’s case file concerning his appeals against the decision on his removal from office had been falsified or tampered with after he had lodged his application with the Court (see paragraph 26 above) were baseless. 34. The Government further argued that the content of the Constitutional Court’s decision did not in any way indicate that the court had failed to decide on all of the appeals lodged by the applicant. It was evident from the reasoning of the Constitutional Court’s decision (see paragraph 13 above) that it had examined and addressed all the grounds of appeal relied on by the applicant in all three appeals. 35. In view of the foregoing (see paragraphs 31-34 above), the Government concluded that the Constitutional Court had decided on all three of the applicant’s appeals and that there had therefore been no violation of Article 6 § 1 of the Convention. 36. The Court reiterates that the right to a fair trial as guaranteed by Article 6 § 1 of the Convention includes the right of the parties to submit any observations that they consider relevant to their case. The purpose of the Convention being to guarantee not rights that are theoretical or illusory but rights that are practical and effective, this right can only be seen to be effective if the observations are actually “heard”, that is duly considered by the trial court. In other words, the effect of Article 6 is, among others, to place the “tribunal” under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessment of whether they are relevant (see, among many other authorities, Perez v. France [GC], no. 47287/99, § 80, ECHR 2004‐I). 37. The Court also reiterates that, even though the courts are not required to give a detailed answer to every argument, they are not exempted from duly examining and replying to the arguments which are decisive for the outcome of the proceedings (see Felloni v. Italy, no. 44221/14, § 24, 6 February 2020, and Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 84, 11 July 2017). 38. Turning to the present case, the Court notes that, by the Government’s own admission, the first and second appeals by the applicant were initially inserted into the wrong case file and that, in order to rectify that error, only the second appeal was later transferred to the correct case file, namely the one concerning his removal from office (see paragraphs 9, 11 and 32 above). The first appeal was not transferred because the judge rapporteur and the law clerk assigned to the case considered that the first and third appeals were identical, save for one additional argument in the third appeal (see paragraphs 11 and 32 above). 39. In view of the fact that the applicant’s first appeal was eleven pages long and his third appeal was only four pages long (see paragraphs 8 and 10 above), the Court finds it difficult to accept the Government’s contention that, except for one argument, those two appeals were identical. 40. Since the first and third appeals were clearly not duplicates, the Court finds that not including the applicant’s first appeal in the case file concerning his removal from office, where it evidently belonged, is in itself contrary to the right of the parties under Article 6 § 1 of the Convention to submit any observations which they consider relevant to their case, and to the corresponding duty of the domestic courts to conduct a proper examination of those submissions without prejudice to their assessment of whether they are relevant (see paragraph 36 above, and the cases cited therein). 41. This fact alone is sufficient to enable the Court to conclude that not all of the applicant’s appeals were taken into account by the Constitutional Court. 42. There has accordingly been a violation of Article 6 § 1 of the Convention. 43. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
44. The applicant claimed 135,719.87Croatian kunas (HRK) in respect of pecuniary damage, corresponding to his loss of earnings and a fee he had had to pay to become an advocate and be admitted to the Bar. He also claimed HRK 50,000 in respect of non-pecuniary damage for the mental pain and suffering resulting from his removal from office and the unlawful proceedings. 45. The Government contested the claims as excessive and lacking any causal link with the violation complained of. 46. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, the Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 4,000 under that head. 47. The applicant claimed HRK 20,000 in respect of costs and expenses. 48. The Government contested that claim as unsubstantiated and unsupported by any documents. 49. The Court observes that there is no evidence to suggest that the applicant incurred any costs and expenses before the domestic courts as a result of the violation found. The Court therefore rejects this claim. On the other hand, the Court finds it reasonable to award the applicant EUR 1,665 in respect of the costs and expenses incurred before the Court, plus any tax that may be chargeable to him. 50. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Croatian kunas at the rate applicable at the date of settlement:
(i) EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,665 (one thousand six hundred and sixty-five euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 18 March 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Attila Teplán Péter PaczolayActing Deputy RegistrarPresident