SMAILAGIĆ v. CROATIA
Inadmissible
Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Ksenija Turković
1. The applicant, Mr Jasmin Smailagić, is a Croatian national, who was born in 1951 and lives in Rijeka. He was represented before the Court by Mr V. Margan, a lawyer practising in Rijeka. 2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 29 March 2001 an investigating judge of the Zagreb County Court (Županijski sud u Zagrebu) opened an investigation in respect of the applicant and another person in connection with a suspicion of economic crime. 5. The applicant appealed against that decision on 9 April 2001, arguing that it had not been sufficiently established that he had committed the alleged offences at issue. 6. On 26 April 2001 a three-judge panel of the Zagreb County Court, composed of Judges S.P.L., T.I.T. and S.B.B., dismissed his appeal and upheld the decision of the investigating judge on the grounds that a sufficient degree of reasonable suspicion existed to warrant the opening of an investigation. 7. Following the investigation, on 21 February 2002 the Zagreb Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Zagrebu) indicted the applicant and another person in the Zagreb Municipal Criminal Court (Općinski kazneni sud u Zagrebu) on charges of misfeasance in business. 8. On 31 May 2007 the applicant was found guilty as charged and sentenced to ten months’ imprisonment, suspended for three years. 9. The Zagreb Municipal State Attorney’s Office challenged this judgment, with an appeal lodged before the Zagreb County Court on 17 July 2007, arguing that the sentence was too lenient. 10. On 31 July 2007 the applicant also lodged an appeal against the judgment, alleging numerous substantive and procedural flaws. 11. An appeal hearing before a panel of judges of the Zagreb County Court, composed of Judges S.B.B., L.S. and T.I.T., was held on 29 January 2008. The applicant and his lawyer were present at the hearing. They did not object to the composition of the appeal panel. 12. On the same day the Zagreb County Court quashed the first-instance judgment and remitted the case on the grounds of insufficient reasoning in the judgment. 13. Following a retrial, on 13 November 2008 the Zagreb Municipal Criminal Court found the applicant guilty as charged and sentenced him to ten months’ imprisonment, suspended for two years. 14. The applicant appealed to the Zagreb County Court on 2 January 2009, alleging numerous substantive and procedural flaws in the first-instance judgment. 15. At an appeal hearing held on 17 November 2009 before a panel of judges of the Zagreb County Court, composed of Judges S.B.B., L.S. and T.I.T., the applicant and his lawyer reiterated the appeal arguments. They did not object to the composition of the appeal panel. 16. On the same day the Zagreb County Court dismissed the applicant’s appeal as ill-founded and upheld the first-instance judgment. 17. On 26 February 2010 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) complaining, inter alia, that the appeal court had not been impartial owing to the fact that Judges S.B.B. and T.I.T. had sat on the panel which had dismissed his appeal, and the same judges had previously upheld the decision to open an investigation against him in connection with the same offences. 18. On 9 May 2013 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded on the grounds that the questions which Judges S.B.B. and T.I.T. had had to answer when deciding on the opening of an investigation against him differed from those questions which they had examined upon his appeal against the first-instance judgment adopted after a hearing on the merits of the charges held against him. The Constitutional Court therefore considered that there was nothing to warrant calling into question the impartiality of these particular judges. 19. The decision of the Constitutional Court was sent to the applicant’s representative on 10 June 2013. 20. The relevant provision of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum), 76/2010, 85/2010 and 05/2014) reads: “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.” 21. At the material time, the relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/02, 62/2003 and 115/2006) provided: “(1) A judge or lay judge shall be excluded from sitting in a case: 1. if he has been injured by the offence; 2. if he is the spouse, a relative by blood, either lineal, descending or ascending, or collateral to the fourth degree, or related by affinity to the second degree, to the defendant, his counsel, the prosecutor, the injured person, their legal guardian or legal representative; 3. if he is a legal guardian, ward, adopted child or adoptive parent, foster parent or foster child of the defendant, his counsel, the prosecutor or the injured person; 4. if in the same criminal case he has carried out investigative actions, or has taken part in deciding on an objection to the indictment, or if he has taken part in the proceedings as a prosecutor, defence counsel, legal guardian or legal representative of the injured person or the prosecutor, or if he has testified as a witness or as an expert witness; 5. if in the same case he has taken part in adopting the decision of a lower court or in adopting a decision of the same court being challenged by means of an appeal or extraordinary remedy. (2) A judge or lay judge may be removed or remove himself from a particular case if it has been argued and proved that there are circumstances other than those listed in the previous paragraph which call his impartiality into doubt.” “(1) A judge or lay judge, as soon as he discovers a ground for exclusion referred to in Article 36, paragraph 1, of this Code, shall discontinue all activity on the case and report the matter to the president of the court, who shall appoint a substitute judge ... (2) If a judge or lay judge holds that other circumstances exist which would justify his standing down (Article 36, paragraph 2), he shall inform the president of the court thereof.” “(1) Disqualification of a judge may also be requested by one of the parties ... (2) A party may seek the disqualification of a judge of a higher court in the appeal or reply to the appeal [of the other party]. In any event, it must be at the latest before the commencement of the hearing of that court. ...” 22. In the decision no. U-III-3116/2002 of 17 September 2004 the Constitutional Court examined whether the previous involvement of a judge, who dismissed an appeal against the investigating judge’s decision opening an investigation, required exclusion of the judge from the subsequent participation in the proceedings under Article 36 § 1 of the Code of Criminal Procedure. The relevant part of the decision reads: “With regard to the arguments from the constitutional complaint that there has been a fundamental error of the proceedings because a judge participating in the main hearing should have been excluded from the case, the Constitutional Court notes as follows: Under Article 36 § 1(4) of the Code of Criminal Procedure (Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002 and 62/2003 – consolidated text) a judge or a lay judge shall be excluded from sitting in a case if in the same criminal case he has carried out investigative actions, or has taken part in deciding on an objection to the indictment, or if he has taken part in the proceedings as a prosecutor, defence counsel, legal guardian or legal representative of the injured person or the prosecutor, or if he has testified as a witness or as an expert witness. Under Article 367 § 1(2) of the Code of Criminal Procedure a fundamental procedural error exists if a judge or a lay judge who should have been excluded (Article 36 § 1) sat in the case during the main hearing. The County Court’s case file shows that the investigation, that is to say investigative actions, had been carried out by Judge M.B., an investigating judge of the Split County Court, and that Judge J.Č., who presided the trial panel of the first-instance court, as a member of a three-judge panel, had decided upon the appeals against the decision of the investigating judge opening the investigation and ordering pre-trial detention ... In view of the provisions of the Code of Criminal Procedure, and having regard to the above findings ... the [Constitutional] Court finds that an alleged fundamental error in the proceedings at issue has not occurred, which could lead to a violation of the constitutional right to a fair trial.” 23. In the case no. Kž-211/11-9, on 29 January 2015, the Supreme Court also explained: “ ... Article 36 § 1 of the Code of Criminal Procedure concerns instances in which a judge is excluded from sitting in a case if in the same criminal case he has carried out investigative actions, or has taken part in deciding on an objection to the indictment, or if he has taken part in the proceedings as a prosecutor, defence counsel, legal guardian or legal representative of the injured person or the prosecutor, or if he has testified as a witness or as an expert witness. The reasons referred to in Article 36 § 1(4) of the Code of Criminal Procedure are exhaustive, and those reasons do not include participation of a judge in the decision on appeal against a decision opening an investigation.” 24. On 22 February 2008, in case no. Su-IV-187/08, the Supreme Court (Vrhovni sud Republike Hrvatske) examined on the merits a request for the disqualification of two of its judges lodged by the defence under Article 36 § 2 of the Code of Criminal Procedure just before the commencement of an appeal hearing before that court. 25. In case no. Su-1174/10, on 22 November 2010 the Zagreb County Court examined on the merits a request for the disqualification of a judge submitted just before the commencement of an appeal hearing before that court.