SMILJAN PERVAN v. CROATIA
Inadmissible
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković
1. The applicant, Ms Larisa Smiljan Pervan, is a Croatian national, who was born in 1973 and lives in Čavle. She was represented before the Court by Mr D. Smolić-Ročak, a lawyer practising in Rijeka. 2. 3. The applicant works as a judge in the civil division of the Rijeka Municipal Court (Općinski sud u Rijeci). 4. As a result of the internal assignment of cases at the Rijeka Municipal Court, the applicant was assuming responsibility, as a trial judge, for cases nos. P-878/2008 and P-114/2011. The former concerned a property action brought by a local municipal council against an individual, represented by a lawyer, D.H., and the latter concerned a property dispute between two private parties in which the same lawyer, D.H., was representing the plaintiff. 5. On 4 January 2012 D.H. asked the President of the Rijeka Municipal Court to exclude the applicant from the case. D.H. argued that in the case at issue and several other cases in which she was acting as a lawyer, the applicant had displayed hostility towards her. In particular, at a hearing on 3 January 2012 the applicant had told D.H.’s client that she was not doing her job properly and in the client’s best interest. 6. On 1 March 2012 the President of the Rijeka Municipal Court, after examining a report submitted by the applicant, accepted the request and excluded the applicant from the case on the grounds that the requisite objectivity in the assessment of D.H.’s particular complaints required that the applicant be excluded from the case as the trial judge. The applicant was informed that she could not appeal against that decision. 7. On an unspecified date in 2012 the applicant lodged an appeal with the President of the Rijeka County Court (Županijski sud u Rijeci) against the above-mentioned decision. 8. On 26 April 2012 the President of the Rijeka County Court declared the applicant’s appeal inadmissible on the grounds that the decision at issue was not susceptible to appeal under the Civil Procedure Act, nor did it represent an administrative measure which could be challenged under the Administrative Procedure Act. The President pointed out that the rule on the exclusion of judges had been envisaged for the protection of the rights and interests of parties in the proceedings, and not for the promotion of the interests of judges. The President considered that in any event, in a situation in which a judge insisted on sitting in a case even though one of the parties’ representatives had reported a conflict with the judge, that in itself raised an issue as to the judge’s impartiality. 9. The applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), challenging the decision of the President of the Rijeka County Court. 10. On 3 October 2012 the Constitutional Court declared the applicant’s constitutional complaint inadmissible on the grounds that the impugned decision concerned neither her civil rights or obligations, nor any criminal charge against her. The decision of the Constitutional Court was served on the applicant’s representatives on 25 October 2012. 11. On 4 January 2012 D.H. asked the President of the Rijeka Municipal Court to exclude the applicant from the case. D.H. argued that in the case at issue the applicant had displayed hostility towards her, accusing her of not having sufficient legal knowledge and of failing to provide the proper legal instructions to her clients. As a result, the clients’ respect for DH had diminished. 12. The President of the Rijeka Municipal Court, after examining a report submitted by the applicant, accepted the request and on 1 March 2012 excluded the applicant from the case on the grounds that the requisite objectivity in the assessment of D.H.’s particular complaints required that the applicant be excluded from the case as the trial judge. The President indicated that the decision was not susceptible to appeal. 13. On an unspecified date in 2012 the applicant appealed against the above-mentioned decision to the President of the Rijeka County Court, arguing that there had been various substantive and procedural flaws. 14. On 26 April 2012 the President of the Rijeka County Court declared the applicant’s appeal inadmissible, reiterating the same reasons as it had given in case no. P-878/2008 (see paragraph 8 above). 15. The applicant then lodged an administrative action before the Rijeka Administrative Court (Upravni sud u Rijeci) and a constitutional complaint before the Constitutional Court. She argued that the decision of the President of the Rijeka County Court had affected her right to the normal performance of judicial work in the given case, as well as her professional dignity and the possibility of attaining her objectives. 16. On 29 June 2012 the Rijeka Administrative Court declared the applicant’s administrative action inadmissible. The relevant part of the decision reads: “This court considers that the impugned decision does not concern any of the plaintiff’s rights or interests. Therefore, one of the cumulative prerequisites in order for an issue to be considered an administrative matter has not been met. The purpose of the rules on the exclusion of judges is to ensure objectivity in the conduct of proceedings. Objectivity is important for the protection of the parties’ rights and legality, not for the subjective rights and interests of judges. ... The exclusion of a judge does not affect his or her rights under [the law on the courts organisation].There is no right of a judge to act in a particular case because the assignment of cases is regulated under the provisions on the organisation of the courts. The exclusion cannot be considered as an obstacle for a judge in reaching his or her objectives because the judge can work on other cases which have been assigned to him or her. ... Furthermore, this court finds that the exclusion of a judge from a case does not affect his or her professional dignity. The provisions on exclusion ensure the impartiality of a judge in a given case, and it is a situation which every judge may encounter, irrespective of his or her professional qualities. Moreover, a decision on exclusion does not concern the professional qualities of a judge. ... Lastly, against the above background, [this court finds that] the exclusion of a judge is not an administrative matter and thus the decision on exclusion is not an administrative act.” 17. The applicant lodged an appeal against the above decision with the High Administrative Court (Visoki Upravni sud Republike Hrvatske), reiterating her previous arguments. 18. On 27 September 2012 the High Administrative Court declared the applicant’s appeal inadmissible on the grounds that an appeal against the decision of the Rijeka Administrative Court was not allowed under the relevant domestic law. 19. The applicant then lodged a constitutional complaint before the Constitutional Court, challenging the decision of the High Administrative Court. 20. On 3 October 2012 the Constitutional Court declared the applicant’s constitutional complaint against the decision of the President of the Rijeka County Court (see paragraph 15 above) inadmissible on the grounds that the impugned decision concerned neither her civil rights or obligations, nor any criminal charge against her. 21. On 31 January 2013 the Constitutional Court, relying on the same reasons, declared the applicant’s constitutional complaint against the decision of the High Administrative Court (see paragraph 19 above) inadmissible. The decision of the Constitutional Court was served on the applicant’s representatives on 19 February 2013. 1. Constitution 22. 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, 76/2010, 85/2010) reads as follows: Article 29 “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.” 23. The relevant part of the Constitutional Court Act (Ustavni zakon o Ustavnom sudu Republike Hrvatske; Official Gazette no. 49/2002) reads as follows: Section 62 “1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the individual act of a state body, a body of local and regional self-government, or a legal person with public authority, concerning his or her rights and obligations, or a suspicion or an accusation of a criminal act, has violated his or her human rights or fundamental freedoms or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: a constitutional right) ... 2. If another legal remedy exists in respect of the violation of the constitutional right [complained of], a constitutional complaint may be lodged only after that remedy has been used.” 3. Civil Procedure Act 24. The relevant provisions of the Civil Procedure Act (Zakon o parničnom postupku; Official Gazette nos. 53/1991, 91/1992, 58/1993, 112/1999, 88/2001, 117/2003, 88/2005, 2/2007, 84/2008, 123/2008, and 57/2011) provide as follows: Section 71 “A judge ... shall be disqualified from exercising his functions: ... 7. if other circumstances exist which cast doubt on his or her impartiality.” “(1) The President of the court shall decide on the party’s request for the exclusion, unless otherwise provided under the law. ... (4) When deciding on the request for exclusion [the President of the court] shall obtain a statement from the judge concerned and, if necessary, further information. (5) The decision by which the request for exclusion is accepted is not susceptible to appeal and the decision rejecting or dismissing the request is not susceptible to special appeal.” 4. Administrative Procedure Act 25. The relevant provision of the Administrative Procedure Act (Zakon o općem upravnom postupku; Official Gazette no. 47/2009) provide as follows: “(1) An administrative matter is any issue in which a public authority in administrative proceedings decides on the rights, obligations and legal interests of a physical or legal person or other entities (hereinafter: the parties) by immediate application of the law, regulations and other general decisions relevant to a particular administrative issue. (2) An administrative matter is also any issue which is so designated under the law.” 5. Courts Act 26. The relevant provisions of the Courts Act (Zakon o sudovima; Official Gazette nos. 150/2005, 16/2007, 113/2008, 153/2009, 116/2010, 122/2010, 27/2011, 57/2011, and 13/2011) provide: “(1) The conduct of a judge must be governed with due respect for his or her dignity and the dignity of the judiciary, and must not put into question his or her professional impartiality and independence, or the independence of the judiciary.” “A judge has the following rights: - adequate remuneration, - a bonus payable when he or she is transferred to another court, - adequate compensation, instead of a salary, when he or she is unable to perform his or her judicial function, - pension, disability and health insurance, and all rights pertaining thereto, in accordance with the relevant general regulations, - leave granted to judicial staff and annual leave of 30 working days, - compensation for the relevant expenses as provided for under the law, - an allowance in the event of separation from his or her family, and travel expenses to the place of residence of his or her family at weekends and during national holidays, - compensation for official journeys and expenses related to his or her judicial duty, - continuing education and specialisation training from the funds allocated for that purpose. (2) The amount of bonus payable to a judge transferred to another court shall be determined by ordinance of the Minister of Justice.” 6. Rules of Courts 27. The relevant provision of the Rules of Courts (Sudski poslovnik; Official Gazette nos. 158/2009, 3/2011, 34/2011, 100/2011, 123/2011, 138/2011, and 38/2012) provides: “(1) Court administration issues are all those measures required to ensure adequate working conditions and functioning of the courts. (2) Those are, in particular: ... - professional measures for guaranteeing the rights and duties of civil servants and judges in the courts, ...”