CASE OF ZUGIC v. CROATIA
Remainder inadmissible;No violation of Art. 10
Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
4. The applicant was born in 1925 and lives in Zagreb. 5. On 11 December 2000 the public utility company V.O., basing its case on unpaid bills for water supply services, instituted enforcement proceedings against the applicant in the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking payment of the debt. 6. On 24 January 2001 the Court issued a writ of execution (rješenje o ovrsi) ordering the applicant to pay the amounts sought. However, since the applicant challenged the writ by objecting to it on 19 March 2001, the court set it aside. As a consequence, the enforcement proceedings were, pursuant to the relevant legislation, transformed into, and resumed as, regular civil proceedings. 7. The applicant, who has a formal education as a lawyer but is not an advocate, represented himself in the proceedings. 8. On 15 November 2005 judge J.G.F. of the Zagreb Municipal Court delivered a judgment ruling for the plaintiff. 9. On 27 December 2005 the applicant appealed against the firstinstance judgment. Section 357 of the Civil Procedure Act provides that an appeal to a second-instance court has to be lodged through a firstinstance court. Under section 358 of the same Act the first-instance court conducts a preliminary examination of the appeal and may declare it inadmissible if it finds that it does not meet certain procedural requirements, for example if it finds that it was lodged outside the statutory time-limit. It is, however, not authorised to decide on the merits of the appeal. Therefore, the applicant submitted his appeal intended for Zagreb County Court (Županijski sud u Zagrebu) to Zagreb Municipal Court. In his appeal he wrote, inter alia: “After twenty months of waiting ... on 15 November 2005 the second hearing was held, at which, in substance and without hearing [the parties] (apart from stating that the parties were present and that they maintained their positions) the impugned judgment was rendered. It is indicative to mention here that the judge, before dictating the operative provisions of the judgment, asked the defendant whether ‘he would pay this’ to which the defendant replied ‘where did you get that idea?’ [‘što Vam pada na pamet? ‘]and asked whether she had examined the case file.... The judge angrily turned sideways in her chair and dictated the operative provisions of the judgment in the name of the Republic of Croatia to the typist, using a funny expression [navodeći komičan izraz] that the parties were asking for a reasoned judgment – as if in adversarial proceedings judgments without reasons or instruction on remedies available against them existed. Unfortunately, the court did not record these dialogues between the judge and the defendant in the minutes. What judicial professionalism this is! [Kakva li je ovo sudačka profesionalnost!] It is evident from the above-mentioned that in these proceedings no hearing was held in accordance with the law, which amounts to breaches of section 354 paragraph 2 subparagraphs 6 and 11 of the Civil Procedure Act. Apart from this, from the contested judgment or the transcripts of the hearings it cannot be discerned whether the court took any evidence ... for which reason the judgment could not be satisfactorily reasoned ... Instead of referring to the evidence taken and assessing its evidentiary value, the court immediately ... states on what basis it arrived at the contested findings, from which it is clear that it accepted all arguments of the plaintiff ...” 10. After it carried out the preliminary examination of the appeal, Zagreb Municipal Court forwarded it together with the case file to Zagreb County Court. 11. On 3 April 2007 Judge M.P. at Zagreb County Court delivered a judgment dismissing the applicant’s appeal and upholding the first-instance judgment. 12. On 24 July 2007 the applicant lodged a constitutional complaint against the second-instance judgment. On 21 January 2010 the Constitutional Court (Ustavni sud Republike Hrvatske) declared his constitutional complaint inadmissible. It found that even though the applicant relied in his constitutional complaint on the relevant Articles of the Constitution guaranteeing the right to a fair hearing and equality before the law, he had not substantiated his complaint by any constitutional law arguments but had merely repeated the arguments raised in the proceedings before the ordinary courts. Therefore, the Constitutional Court had been unable to examine the merits of his constitutional complaint. 13. After it had completed the preliminary examination of the applicant’s appeal of 27 December 2005 in the above proceedings, on 4 January 2006 Judge J.G.F. at Zagreb Municipal Court issued a decision whereby it fined the applicant 500 Croatian kunas (HRK) for contempt of court. The relevant part of the decision read as follows: “I. The defendant Nikola Žugić from Zagreb ... is hereby fined 500 [Croatian] kunas because in his appeal of 27 December 2005 he insulted the court by stating: ‘It is indicative to mention here that the judge, before dictating the operative provisions of the judgment, asked the defendant whether ‘he would pay this’, to which the defendant replied ‘where did you get that idea?’ and asked whether she had examined the case file.... The judge angrily turned sideways in her chair and dictated the operative provisions of the judgment in the name of the Republic of Croatia to the typist, using a funny expression that the parties were asking for a reasoned judgment – as if in adversarial proceedings judgments without reasons or instruction on remedies available against them existed. Unfortunately, the court did not record these dialogues between the judge and the defendant in the minutes. What judicial professionalism this is!’ ... In the appeal of 27 December 2005 the defendant, insulted the court by, inter alia, [using] the words quoted in the operative provisions of this decision. It would follow from the quoted text that during the main hearing the court communicated with the parties in an improper way, that the judge behaved improperly and that she does not know the law. All this constitutes contempt of court and the statements quoted exceed the limits of necessary respect for the court, even attempting to call into question the knowledge and expertise of the judge at issue, which is an impermissible way for the parties to communicate with the court because it represents a direct insult to the judge as a person, implying that she is ignorant and incompetent to exercise the duty of a judge. When imposing the fine the court took into account the fact that the defendant insulted not only the court as an institution, but also the judge as a person, on account of which he had to be fined pursuant to section 110 taken in conjunction with section 10 of the [Civil Procedure Act].” 14. On 16 January 2006 the applicant lodged an appeal against that decision arguing, inter alia, that his statements had been arbitrarily interpreted by the first-instance court, that they had not been insulting, and that he had not had any intention of insulting anyone. 15. By a decision of 3 April 2007 Judge M.P. at Zagreb County Court dismissed the applicant’s appeal and upheld the first-instance decision. The relevant part of that decision read as follows: “In this court’s view, the finding of the first-instance court that in his appeal the defendant insulted the court by making the above statements is correct ... It is to be noted that by the statements made in the appeal the defendant demonstrated disrespect for the court, which undoubtedly represents an improper way for the parties to communicate with the court, and exceeds the limits of a civilised and fair relationship with the court as an institution of a society.” 16. On 24 July 2007 the applicant lodged a constitutional complaint against the second-instance decision. On 25 October 2007 the Constitutional Court declared his constitutional complaint inadmissible on the ground that the contested decision did not concern the merits of the case and as such was not susceptible to constitutional review. 17. On 21 May 2008 the Zagreb Municipal Court of its own motion issued a writ of execution by garnishment of a part of the applicant’s pension with a view to collecting the above fine. The applicant appealed and the proceedings are currently pending before the Zagreb County Court. 18. The relevant part of the 1999 Constitutional Act on the Constitutional Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 99/1999 of 29 September 1999 – “the Constitutional Court Act”), as amended by the 2002 Amendments (Ustavni zakon o izmjenama i dopunama Ustavnog zakona o Ustavnom sudu Republike Hrvatske, Official Gazette no. 29/2002 of 22 March 2002), which entered into force on 15 March 2002, reads as follows: “1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the decision of a state authority, local or regional government, or a legal person invested with public authority, on his or her rights or obligations, or as regards suspicion or accusation of a criminal offence, has violated his or her human rights or fundamental freedoms, or the right to local or regional government, guaranteed by the Constitution (‘constitutional right’)... 2. If another legal remedy is available in respect of the violation of the constitutional rights [complained of], the constitutional complaint may be lodged only after this remedy has been exhausted. 3. In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law [revizija] is available, remedies shall be considered exhausted only after a decision on these legal remedies has been given.” 19. The relevant part of the 1977 Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980, 69/1982, 58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991 and Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 112/1999, 117/2003 and 84/2008 – “the Civil Procedure Act”), as in force at the relevant time, read as follows: “1. ... 2. Unless otherwise provided by this Act, the court shall fine a natural person between 500 and 10,000 [Croatian] kunas, or a legal entity between 2,500 and 50,000 [Croatian] kunas, if they commit a serious abuse of the rights they have in the proceedings. 3. The fine referred to in paragraph (2) of this section may be imposed on a party and an intervener, as well as on their representative if he or she is responsible for the abuse of rights. 4. The fine shall be imposed by the first-instance court. Outside the main hearing the fine shall be imposed by a single judge or the presiding judge. 5. ... 6. ... 7. The imposed fine shall be collected automatically [ex officio] as a pecuniary debt in accordance with the rules of enforcement procedure.” “1. The first-instance court shall fine a natural person between 500 and 5,000 [Croatian] kunas, or a legal person between 2,000 and 20,000 [Croatian] kunas, if in his, her or its submission they have insulted the court, a party or other participant in the proceedings. The fine may also be imposed on a representative of a party or an intervener if he or she is responsible for insulting the court. 2. Provisions of section 10 of this Act shall apply mutatis mutandis to cases referred to in paragraph (1) of this section. 3. Provisions of preceding paragraphs of this section shall apply in all cases where the court imposes a fine pursuant to the provisions of this Act, unless otherwise expressly provided for particular cases.” 20. The 2008 Amendments to the 1977 Civil Procedure Act (Zakon o izmjenama i dopunama Zakona o parničnom postupku, Official Gazette no. 84/2008 and 123/2008 (corrigendum), which entered into force on 1 October 2008, amended, inter alia, paragraph 7 and added five new paragraphs (8 to 12) to section 10 of the 1977 Civil Procedure Act. The relevant part of the amended section 10 reads as follows: “(7) If the person fined ... does not pay the fine within the fixed time-limit ... the court shall ... inform the [Tax Administration] of the unpaid fine with a view to collecting the fine [through tax enforcement proceedings] ... ... (12)... If within a year of service of ... a decision referred to in paragraph 2 of this section [the Tax Administration] does not succeed in collecting the fine, [it] shall inform ... the court [thereof], whereupon the fine shall be converted into a prison sentence in accordance with the rules of criminal law on converting fines into prison sentences, on which the court that imposed the fine shall issue a decision ....” 21. Section 52(1) of the 2008 Amendments provided that they were applicable to all pending proceedings unless otherwise provided in that section. 22. Article 52(3) of the Criminal Code (Kazneni zakon, Official Gazette no. 110/97 with subsequent amendments) reads as follows: “A fine shall be converted into a prison sentence so that one [average] daily income is converted into one day of imprisonment, where the maximum duration of imprisonment into which the fine was converted shall not exceed twelve months.” 23. According to the practice of domestic courts, before taking a decision to convert the fine into a prison sentence a court has to summon and hear the person fined. An appeal always lies against such a decision.