CASE OF SIKIC v. CROATIA
Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Civil rights and obligations;Dispute;Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Civil rights and obligations;Dispute;Reasonable time);No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-2 - Presumption of innocence);Pecuniary damage - claim dismissed (Article 41 - Causal link;Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
4. The applicant was born in 1965 and lives in Vinkovci. 5. On 13 November 2001 the Vukovar State Attorney's Office (Općinsko državno odvjetništvo u Vukovaru) indicted the applicant in the Vukovar Municipal Court (Općinski sud u Vukovaru) of the criminal offence of abuse of position and authority (zlouporaba položaja i ovlasti). On 11 December 2001 a representative of the State Attorney's Office withdrew the charges against the applicant, stating that the facts of the case did not show that the applicant had committed any criminal offence liable to public prosecution. Hence, the Municipal Court dismissed the charges against him on 11 December 2001. The relevant part of this judgment reads as follows: “In respect of the defendant Hrvoje Šikić ... Pursuant to Article 353(3) of the Code of Criminal Procedure, the indictment is dismissed that he: on the night of 10 to 11 December 1999, in Vukovar, in his capacity as vice-chief of traffic crime-scene investigation and as chief constable of the Vukovar Police Station, after [having received] a report of a road accident caused by police officer M.V. while driving a police car ...[and] with the intention of helping M.V. avoid responsibility [for the accident] and to conceal the whole incident, did not allow the obligatory on-site inspection to be carried out although he had personally visited the site of the accident and ordered the officers in charge, S.M. and R.M., not to register the said accident in the events register. He certified the register with his signature, thus confirming that during the shift there had been no incidents to be registered, although he knew that it was not true ... Reasoning ... At a hearing held on 11 December 2001 the Deputy Vukovar Municipality State Attorney, G.D., withdrew the charges against the defendant ... on grounds that he had not committed the said criminal offence, or any other criminal offence liable to public prosecution. ...” 6. On 29 October 2001 a criminalist of the Vukovar Police Station (Policijska postaja Vukovar) drew up a report on the events of the night of 10 to 11 December 1999. On 30 October 2001 the applicant was removed from his post. On the same day the Vukovar-Srijemska Police Department lodged a request with the Vukovar Police Station that disciplinary proceedings against the applicant be instituted. On 11 December 2001 the applicant made his statement to an officer of the Vukovar-Srijemska Police Department (Policijska uprava vukovarko srijemska), in the presence of his counsel. However, subsequently no disciplinary proceedings were instituted against the applicant. Instead, in a decision of 7 January 2002 the Minister of the Interior (Ministar unutarnjih poslova Republike Hrvatske), on the basis of the police reports and the written record of the applicant's statement given on 11 December 2001, dismissed the applicant with effect from 31 January 2002 on the ground that in respect of the road accident which had occurred on the night of 10 to 11 December 1999 he had acted contrary to his duties as a policeman. The applicant lodged an appeal on 18 February 2002 and the impugned decision was quashed by the Administrative Court (Upravni sud Republike Hrvatske) on 12 September 2002. 7. In a fresh decision of the Minister of the Interior on 8 January 2003 the applicant was again dismissed with effect from 31 January 2002. It was found that on the night of 10 to 11 December 1999, in his capacity as vice-chief for traffic crime-scene investigation and as chief constable of the Vukovar Police Station, he had disregarded his duties in relation to a road accident caused by a police car. After arriving at the scene, the applicant had let those implicated leave the scene of the accident without calling the crime-scene team in order to carry out an on-site inspection. He had further failed to institute adequate proceedings against the perpetrator of the road misdemeanour. He had also instructed the police officers involved to make a deal concerning compensation to the injured party. Furthermore, he had signed the events register, in respect of that night, stating that there had been no incidents to report. Afterwards, he had allowed and arranged for the unauthorised repair of the police car. The relevant part of the decision reads as follows: “As a police officer the defendant ... was under a duty to control and supervise the legality of the acts of other police officers. However, as to the incident in question he acted entirely contrary to this duty and thus allowed the person who had caused the road accident in question to avoid responsibility for it, which clearly shows a disregard for his duties ... Furthermore, the defendant violated laws regulating the [police] service in that he acted contrary to section 176 of the Road Safety Act (Zakon o sigurnosti prometa na cestama, Official Gazette no. 59/1996) which requires drivers who have been implicated in a road accident causing lesser material damage to vehicles to immediately remove those vehicles from the road in order to enable the unhindered movement of traffic and to inform the nearest police station of the accident and to wait for the arrival of an official authorised to carry out an on-site inspection. Section 123 (2) of the Police Act (Zakon o policiji) provides that obstruction of duties under paragraph 1 of that section amounts to a transgression of police authority or disregard for the same when a police officer is, according to that Act, obliged to apply [his authority, the obstruction] of which has then caused damage to natural or legal persons or State bodies. As to the case in question, it has been clearly established that the defendant, as a police officer, failed to carry out his police duties in the manner prescribed by the Police Act. It has also been clearly established that [this] caused damage, both non-pecuniary, (to the reputation of the police), and pecuniary, by causing delays in the proceedings, the lack of sanctions against the perpetrator of a traffic misdemeanour as well as damage to the police vehicle which was not repaired in an adequate manner. The material damage was caused by a transgression and disregard of police duties by Hrvoje Šikić in that he failed to enforce a fine, in accordance with the Road Safety Act, against the driver of the police car, M.V. ...” 8. On 14 February 2003 the applicant appealed against the above decision to the Administrative Court, challenging the decision on his dismissal. He argued that his right to be presumed innocent had been violated because in the criminal proceedings against him the charges against him which concerned the same facts as those that had served as a basis for his dismissal had been withdrawn. He further complained that prior to adopting a decision on his dismissal the Ministry of the Interior had not conducted any proceedings and had not given him an opportunity to be heard in these proceedings, to question witnesses or adduce evidence. He did not ask for an oral hearing before the Administrative Court. 9. On 15 May 2003 the Administrative Court upheld the decision on the applicant's dismissal. In his subsequent constitutional complaint of 18 August 2003 the applicant complained, inter alia, that his right to a fair trial and his right to be presumed innocent had been infringed. On 13 June 2007 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the complaint as being ill-founded. The relevant part of the decision reads: “Article 28 of the Constitution provides: Everyone is innocent and no one shall hold him or her guilty of a criminal offence until proved so in a final judgment by a court of law. The case-file shows that the decision on dismissal and the judgment of the Administrative Court are not based on the applicant's criminal responsibility for a criminal offence, but on the finding that the applicant had transgressed his police authority and disregarded his duty, which resulted in a breach of the regulations on the [police] service and a lack of compliance with the duties within the competence of the Ministry of the Interior. Relying on the principles established in its decision no. U-III-2220/2002 of 15 September 2004 (Official Gazette nos. 141/04 and 6/05), the Constitutional Court finds that, despite his acquittal in the criminal proceedings against him, the applicant's dismissal on the grounds under section 123 of the Police Act did not violate his constitutional right under Article 28 of the Constitution.” 10. Section 123 of the Police Act (Zakon o policiji, Official Gazette no. 129/2000) reads: “... The Minister of the Interior ... adopts a decision on dismissal from service after obtaining the opinion of the [officer's in question] hierarchical superior. There is no right to an appeal against the decision under paragraph 3. Instead, administrative proceedings may be instituted before the Administrative Court of the Republic of Croatia.” 11. The Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette nos. 53/1991, 9/1992 and 77/1992) regulates the procedure before the Administrative Court. Section 34 provides as follows: “The court decides administrative disputes in a non-public session. The court may decide to hold an oral hearing on account of the complexity of the dispute or if it otherwise finds it useful for better clarification of the matter at issue. For the same reasons a party may ask that an oral hearing be held.” 12. The Constitutional Court's decision no. U-III-2220/2002 of 15 September 2004 (Official Gazette nos. 141/04 and 6/05), in so far as relevant, reads: “The case-file shows that the judgments of the disciplinary courts and the Administrative Court did not rely on the applicant's criminal responsibility for a criminal offence, but found the applicant's conduct while not on duty, by which he had violated the rules of service and committed a grave breach of work discipline, improper. ... The responsibility for grave breaches of work discipline in disciplinary proceedings may be established without a decision of a criminal court, irrespective of the possibility that a breach of work discipline may at the same time amount to a criminal offence. In disciplinary proceedings the features of a breach of work discipline are established and do not require that at the same time the requirements of a criminal offence are met. In that respect disciplinary responsibility is broader than criminal responsibility. Therefore, despite his acquittal in the criminal proceedings against him, finding the applicant guilty of committing a grave breach of work discipline did not violate his constitutional right under Article 28 of the Constitution.”