TRUBIĆ v. CROATIA
Inadmissible
Anatoly Kovler;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
1. The applicant, Mr Mile Trubić, is a Croatian national, who was born in 1964 and lives in Dugo Selo. He is represented before the Court by Mr K. Vilajtović, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 14 June 2007 the applicant, a policeman at the time, was returning to Croatia from an official assignment in Albania, where he had been with three other police officers T.P., Đ.J. and S.B. When crossing the border, travelling in a regular civilian coach, they were checked by customs officials who found 104 cartons of cigarettes and nine bottles of liquor allegedly belonging to the police officers. 4. On 14 and 15 June 2007 the police questioned the applicant, T.P., Đ.J. and S.B. about the above event. The police also questioned the coach drivers, Z.R. and A.S., and a customs officer, Ž.M. In addition, on 18 June 2007 the applicant, T.P., Đ.J. and S.B. provided further statements concerning the circumstances in which they had bought the cigarettes and liquor. 5. On 2 July 2007 the Zagreb First-Instance Disciplinary Board of the Ministry of the Interior (Ministarstvo unutarnjih poslova Republike Hrvatske, Uprava pravnih i kadrovskih poslova, Odsjek prvostupanjskog disciplinskog sudovanja Zagreb) instituted disciplinary proceedings against the applicant on the ground that on 14 June 2007 he had attempted to smuggle ten cartons of cigarettes and five bottles of liquor from Albania to Croatia. 6. A hearing was held on 19 September 2007 before the Zagreb FirstInstance Disciplinary Court of the Ministry of the Interior (Ministarstvo unutarnjih poslova Republike Hrvatske, Prvostupanjski disciplinski sud Zagreb) in the presence of the applicant and his counsel. The applicant pleaded not guilty for smuggling goods although he admitted that he had brought certain cigarettes and alcohol from Albania but had not known the quantity or that it had been prohibited. 7. At the hearing the police reports on the witness statements of the coach drivers Z.R. and A.S. and officer Ž.M. were read out together with other evidence from the case file. Defence counsel asked for the written records of the oral statements from other police officers also to be admitted in evidence, which was allowed by the court. The applicant and his defence counsel made no objection as to the manner in which the evidence had been taken. However, defence counsel questioned the veracity of the statement given by customs officer Ž.M. 8. On the same day the Zagreb First-Instance Disciplinary Court of the Ministry of the Interior found that the applicant had attempted to smuggle the above-mentioned goods and sentenced him to a suspended sentence of dismissal from his duties. 9. Against the above decision, the Director of the Police (Ravnatelj policije) and the applicant lodged appeals on 4 October 2007 and 9 October 2007 respectively, with the Appeals Division of the Disciplinary Board of the Ministry of the Interior (Ministarstvo unutarnjih poslova Republike Hrvatske, Uprava pravnih i kadrovskih poslova, Odsjek drugostupanjskog disciplinskog sudovanja Zagreb). In his appeal, the applicant argued that the Zagreb First-Instance Disciplinary Court had misinterpreted some of the evidence and that the sentence was disproportionate to the offence. 10. On 21 November 2007 the Appeals Division of the Disciplinary Board of the Ministry of the Interior upheld the findings on the applicant’s disciplinary liability but amended the sentence and ordered the applicant’s dismissal. 11. The applicant lodged an action with the Administrative Court (Upravni sud Republike Hrvatske) against the above decision on 4 January 2008, complaining about the outcome of the proceedings before the lower administrative bodies. He also argued that the witnesses should have been heard by the disciplinary court. 12. On 23 January 2008 the applicant was indicted in the Zagreb Municipal Criminal Court (Općinski kazneni sud u Zagrebu) on charges of smuggling cigarettes and liquor on to the territory of Croatia. 13. On 11 September 2008 the Administrative Court dismissed the applicant’s action and upheld the decision of the Appeal Division of the Disciplinary Board of the Ministry of the Interior, on the ground that there had been no flaws in the procedure or findings of the administrative bodies. The relevant part of the decision reads: “After the assessment of the impugned decision [of the second-instance disciplinary body], this court considers that all the relevant facts have been correctly established, that the relevant law was applied correctly and that there have been no flaws in the procedure. It was undoubtedly established that on the relevant date, after he had finished his official assignment of deportation of foreign citizens to Albania and when entering the territory of the Republic of Croatia at the “Karasovići” border control check-point, the plaintiff had been controlled by the custom officers who had found that he had tried to smuggle ten cartons of cigarettes and five bottles of liquor with a foreign label to Croatia, without having these goods declared to the custom service, although he had known that the import of that amount of such goods had not been allowed, namely that it had been limited. All these relevant facts were established based on the statements of the custom officers, the coach drivers and the plaintiff himself and therefore the complaint concerning the establishment of the relevant facts should be dismissed. ... The substance of the plaintiff’s action did not raise any issue as regards the lawfulness of the impugned decision, and therefore the action was dismissed as illfounded pursuant to section 42 § 2 of the Administrative Disputes Act. ” 14. The applicant lodged a constitutional complaint with the Constitutional Court on 15 December 2008 (Ustavni sud Republike Hrvatske), reiterating the same arguments he had brought before the Administrative Court. 15. The Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded on 6 May 2010. The relevant part of the decision reads: “The Administrative Court fully endorsed the findings and application of the relevant law by the second-instance disciplinary body and, by the impugned judgment, it dismissed the applicant’s action against the second-instance decision. The Constitutional Court finds that the complaints raised in the constitutional complaint essentially represent repetition of the complaints raised before the Administrative Court, without any substantiation of the alleged violations of the Constitution. The applicant failed to show that the Administrative Court, in its procedure or decision, had violated the human rights and fundamental freedoms set out in the Constitution or that it had arbitrarily interpreted the relevant domestic law. Therefore, the Constitutional Court finds that this case does not raise any issue of the applicant’s human rights. Accordingly, there is no issue on which the Constitutional Court should decide.” This decision was served on the applicant’s counsel on 7 June 2010. 16. On 8 March 2012 the Zagreb Municipal Criminal Court acquitted the applicant of the criminal charges of smuggling cigarettes and liquor on to the territory of Croatia. 17. The relevant provision 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) provides: “(1) 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.” 18. The relevant provisions of the Police Act (Zakon o policiji, Official Gazette no. 129/2000) read as follows: Disciplinary action shall be taken against police officers responsible for breaches of work discipline.” “Other than those provided in the rules governing the conduct of civil servants, the following shall particularly be considered a serious breach of work discipline: 4. inappropriate conduct during or outside the hours of service...”