CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 16 novembre 2006

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s61ED8A2B { width:14.36pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .sA36B60A1 { font-family:Arial; font-style:italic } .s84D0D60A { width:8.36pt; display:inline-block } .s76CF415B { page-break-before:always; clear:both } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s2DF49AA6 { width:24.54pt; display:inline-block } .sD79BB263 { width:196.1pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } FIRST SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 13587/03 by Zorica PODOREŠKI against Croatia The European Court of Human Rights (First Section), sitting on 16   November   2006 as a Chamber composed of:   Mr   C.L. Rozakis , President ,   Mr   L. Loucaides ,   Mrs   F. Tulkens ,   Mrs   N. Vajić ,   Mr   A. Kovler ,   Mrs   E. Steiner ,   Mr   K. Hajiyev, judges , and Mr S. Nielsen , Section Registrar , Having regard to the above application lodged on 21 March 2003, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Ms Zorica Podoreški, is a Croatian national who lives in Sisak. She is represented before the Court by Mr Z. Kostanjšek, a lawyer practising in Sisak. The respondent Government are represented by their Agent, Mrs   Š.   Stažnik. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. On 6 October 1989 the applicant concluded a life-long assistance contract ( ugovor o doživotnom uzdržavanju ; “the contract”) with Mrs   Z.   C. The contract stipulated that the applicant was to inherit Z.C.’s flat, movables and foreign currency savings, provided that she took care of her until her death. On 27 June 1996, after the death of Z.C., her husband and relatives (“the plaintiffs”), including her nephew Mr   B.H., instituted civil proceedings against the applicant in the Sisak Municipal Court ( Općinski sud u Sisku ) seeking annulment of the contract. They claimed that the applicant had not fulfilled her obligations arising out of the contract and that it should therefore be declared void. During the first-instance proceedings, the applicant requested withdrawal of all judges of the Sisak Municipal Court and of the Sisak County Court ( Županijski sud u Sisku ) claiming that the plaintiffs were close relatives of one of the Sisak County Court’s judges, Mrs   L.H. In particular, B.H. was the husband of L.H., who was at that time the acting president of the Sisak County Court. The applicant claimed that the president of a court personally distributed files to the judges within the court and that L.H. inevitably had an influence on the appointment of the judge in her case. Moreover, she argued that the Sisak County Court was a small court, where all judges knew each other and that this would certainly undermine the impartiality of the judge assigned to hear the case. The applicant therefore requested her case to be transferred to another court outside the Sisak County Court’s territorial jurisdiction. On 6 March 1997 the Sisak Municipal Court forwarded the applicant’s request to the Supreme Court ( Vrhovni sud Republike Hrvatske ), interpreting it as a request for transfer of jurisdiction ( svrsishodna delegacija nadležnosti ) pursuant to section 68 of the Civil Procedure Act. On 17 April 1997 the Supreme Court dismissed the applicant’s request in respect of the first-instance court. It found no indication that this court might be biased “... because in her request the respondent does not identify concrete circumstances which would give rise to a reasonable doubt as to the first-instance court judges’ impartiality due to the existing family relations. The doubt expressed as to the partiality of the Sisak County Court, as the second-instance court, is not for the time being, a relevant reason for transfer of jurisdiction, because the proceedings... have not yet reached the stage to be decided by the County Court.” On 1 July 1999 the Sisak Municipal Court gave judgment in favour of the plaintiffs and declared the contract void. It concluded that the late Z.C. had married after having concluded the contract and that her husband had taken over the duty of supporting her. The court also deemed that the applicant had failed to respect her obligations arising out of the contract. On 8 November 2001 judge L.H. ceased to perform the duties of the acting president of the Sisak County Court. She remained the president of the civil division of that court, a position which she had held since 1 May 1998. Under the legislation in force at the material time, the president of a court having several divisions has the administrative duty to assign cases to judges within the division. The first-instance judgment appears to have been served on the applicant only in late 2001. On 23 October 2001 the applicant lodged an appeal with the Sisak County Court. In her appeal, the applicant wrote: “The respondent requests at the outset that the Sisak County Court and all its judges withdraw from dealing with this appeal and that the case be assigned to another County Court for decision. I therefore request that the Supreme Court of the Republic of Croatia assign for purposes of the second-instance proceedings another court instead of the Sisak County Court.” The applicant repeated her request for withdrawal by a submission dated 23 November 2001. The Sisak County Court did not forward the applicant’s renewed request to the Supreme Court. Instead, on 25 April 2002 that court ruled on the merits of her case, dismissing the applicant’s appeal and upholding the first-instance judgment. Judge L.H. was not a member of the panel of three judges deciding on the appeal. In its judgment, the court held that: “[...] the appellant again unjustifiably raises the issue of withdrawal of the Sisak County Court judges whereas this request has already been decided by the Supreme Court [on 17 April 1997], which held that there were no justified reasons for the withdrawal of the [Sisak] Municipal Court or the [Sisak] County Court ...” The applicant did not lodge an appeal on points of law ( revizija ) with the Supreme Court, as she deemed that the value of the subject-matter in dispute did not reach the threshold required by section 382 of the Civil Procedure Act. Instead, on 24 June 2002, the applicant filed a constitutional complaint in which she wrote: “...In the instant case the Sisak County Court’s judgment... violated sections 73-75 of the Civil Procedure Act, which relate to the withdrawal of judges. Section 73 (3) provides that a request for withdrawal of a higher court judge may be submitted in an appeal or a reply thereto. The respondent in this matter, in her appeal included a request for withdrawal of the Sisak County Court judges and proposed that the Supreme Court assign another court to decide her case... The respondent identified circumstances on which she founded her request for withdrawal (the same which she unsuccessfully raised during the first-instance proceedings, when the Supreme Court dismissed her request as premature...). However, the second-instance court failed to decide the respondent’s request made in her appeal. In its judgment, the second-instance court simply stated that [the appellant unjustifiably repeated her request, as it had already been decided]. In this way, the second-instance court violated the Civil Procedure Act because this request had to be decided.... The foregoing indicates the existence of a reasonable doubt as to the impartiality of the judges deciding the appeal, which is a very important reason for their withdrawal in this matter. Furthermore, it is to be pointed out that the first request for withdrawal had been made in 1997 and the second one only in 2001..., and it is clear that meanwhile new circumstances could have arisen which could indicate the court’s partiality...” On 24 October 2002 the Constitutional Court ( Ustavni sud Republike Hrvatske ) dismissed the applicant’s complaint. The relevant parts of its decision read: “...In her constitutional complaint, the complainant essentially repeats the reasons stated during the civil proceedings. She considers that the impugned judgments, due to factual shortcomings and erroneous application of procedural and substantive law violated her constitutional right guaranteed in Article 29 § 1 of the Constitution, which provides that everyone has the right to a hearing by an independent and impartial tribunal within a reasonable time in determination of his rights and obligations... ...On the basis of the facts established during the civil proceedings, as well as on the basis of the provisions of procedural and material law applied in the case, during the constitutional proceedings it is established that there has been no violation of the constitutional right relied on in the complaint. This court has not established the existence of facts or a situation which would indicate a violation of the right to a fair hearing. The case was decided by lawfully established tribunals within their jurisdiction provided by law. The documents obtained in relation to the civil proceedings show that the first-instance court took thorough evidence, in line with the parties’ proposals, whereas the second-instance court addressed the merits and replied in full to the arguments advanced in the complainant’s appeal. It is also clear that the complainant was able to follow the proceedings and participate in them, personally or through her representative. Furthermore, the complainant was able to undertake all procedural steps provided for by the domestic legislation and lodge an appeal, whereas the impugned judgments are well reasoned and in line with the applicable provisions of procedural and substantive law. In the light of the foregoing, and finding that the impugned judgments had not violated the complainant’s constitutional right guaranteed under Article 29 § 1 of the Constitution, it was so decided.” B.     Relevant domestic law and practice The relevant provisions of the Civil Procedure Act ( Zakon o parničnom postupku , Official Gazette nos. 53/91, 91/92 and 112/99 – “the Civil Procedure Act”) as in force at the material time read as follows: Section 68 “The highest court of a certain type in the Republic of Croatia may, following a proposal by the party or the competent court, assign another court from its territory to decide a certain case if this would obviously facilitate the proceedings or for another important reason. Section 71 A judge ... shall be disqualified from exercising his functions: ... 6) if other circumstances exist to cast doubt on his or her impartiality. Section 73 1.     Parties may also request withdrawal [of a judge]... 3.     A party may request withdrawal of a judge of a higher court in the appeal or a reply thereto... Section 74 1.     The party’s request for withdrawal of a judge shall be decided by the president of the court. 2.     Should the party request withdrawal of the president of the court, such request shall be decided by the president of the immediately higher court. Section 382 provided for an appeal on points of law ( revizija ) against the second-instance judgment which was admissible ratione valoris if the value of the subject-matter in dispute exceeded 100,000 Croatian kunas. The relevant provisions of the Courts’ Rules ( Sudski poslovnik , Official Gazette nos. 80/97, 20/98 and 118/01) as in force at the material time, read as follows: Section 8 1.     The president of the court supervises the correct and timely discharge of all duties in the court. 2.     Supervision of the work is effectuated through insight in the work of the court chambers, single judges..., insight in files, decision and decisions of higher courts..., inspection of the registration books..., supervision of the work of the court central office... Section 33 ...2.     Cases are assigned to judges by the president of the court or by the president of a division, in courts which have several divisions. 3.     Before assigning cases to judges, cases are listed in a chronological order... 4.     Cases are then assigned in alphabetical order of judges within the court or a division, taking into account the equal division of cases during the year, the type and difficulty of cases... 5.     Should certain cases not be assigned to judges immediately, due to a backlog of cases or excessive work-load of judges, the president of the court or a division shall... assign those cases to judges... Section 43 ...2.     The yearly holiday plan is determined by the president of the court on proposals by the... divisions, bearing in mind the needs of the service and the wishes of the employees... Section 162 Submissions in which a request for withdrawal of a judge... is made... shall be forwarded to the president of the court for decision. The relevant part of section 62 of the Constitutional Act on the Constitutional Court ( Ustavni zakon o Ustavnom sudu Republike Hrvatske , Official Gazette no. 49/2002, of 3 May 2002; “the Constitutional Court Act”) reads as follows: Section 62 “1. Everyone 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, which decided about his or her rights and obligations, or about suspicion or accusation for a criminal act, has violated his or her human rights or fundamental freedoms guaranteed by the Constitution, or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: constitutional right)... 2. If another legal remedy is allowed against 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 are allowed, remedies are exhausted only after the decision on these legal remedies has been given.” In its decision no. Gr1-459/02-2 of 25 February 2003 the Supreme Court held: “In the case of the plaintiff M.K. from Z. against the respondent [company]...., the plaintiff within the time-limit for the appeal filed a request for transfer of jurisdiction of another competent court then County Court in Z.... In his request, the plaintiff submits that the respondent appealed against the Municipal Court’s judgment..., which is to be decided by the County Court in Z. in respect of which he express a doubt as to its impartiality because the wife of the manager of the respondent [company] is employed with the County Court in Z. as the head of its Central Office, and moreover that the president of the County Court in Z. is the best man of the manager of the respondent [company]... The request is well-founded... The relationship between the president of the County Court in Z. with the family of the manager of the respondent [company] in this case, coupled with the fact that the wife of the manager of the respondent works as the head of the Central Office of the County Court in Z. is an important reason to transfer jurisdiction to another court [under section 68 of the Civil Procedure Act]...” In its decision Gr1-356/02-2 of 25 April 2002 the Supreme Court held: “...This court considers that the fact that the spouse of the owner of the respondent [company] is employed with the Municipal Court in V... as a court clerk, and that she used to be employed as a judge, in the present case is a reason under section 68 of the Civil Procedure Act to assign another competent court to hear the case. These circumstances in the present case may as such cast doubts as to the impartiality of the court with the counterparty even when there would be no reasons therefore. Such a situation may give rise to unnecessary complications in the proceedings and possible objections, which would lead to further difficulties...” COMPLAINTS The applicant complained under Article 6   §   1 of the Convention about the fairness of the proceedings. In particular, she complained about their outcome and about the partiality of the second-instance court, claiming that judge L.H. influenced the decision of that court. THE LAW The applicant complained that she was not afforded a fair trial by an impartial tribunal as guaranteed by Article 6   §   1 of the Convention, which insofar as relevant, provides as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.” The Government invited the Court to declare the application inadmissible for non-exhaustion of domestic remedies. They submitted that the applicant failed to lodge an appeal on points of law ( revizija ) with the Supreme Court against the Sisak County Court’s judgment of 25 April 2002, raising the same complaint as the one made before the Court. In support of their argument, the Government submitted case-law of the Supreme Court where in a similar case that court found it unacceptable that a sitting judge had never forwarded the request for his withdrawal to the competent authority. The applicant submitted that an appeal on points of law in her case would have been inadmissible ratione valoris under section 382 of the Civil Procedure Act as the value of the subject-matter in dispute did not allow for such an appeal. Had an appeal on points of law to the Supreme Court been possible, the Constitutional Court would not have taken her constitutional complaint into consideration, but would have declared it inadmissible for non-exhaustion of legal remedies (cf. section 62   (3) of the Constitutional Court Act). As to the non-exhaustion argument raised by the Government, the Court observes that an appeal on points of law can only be lodged in cases where the value of the subject-matter in dispute exceeds a certain statutory threshold. If such an appeal is allowed, it must be pursued in order for all remedies to be exhausted prior to lodging a constitutional complaint (see also Debelić v. Croatia , no. 2448/03, §   21, 26   May 2005). If this remedy is not exhausted, the Constitutional Court declares a subsequent constitutional complaint inadmissible. In the present case, following the Sisak County Court’s judgment, the applicant filed a constitutional complaint, which was not declared inadmissible. Instead, the Constitutional Court gave a decision on the merits of that complaint, thereby implicitly acknowledging that the applicant had not previously had to file an appeal on points of law so as to exhaust all available remedies. In these circumstances, the Court finds it established that the available domestic remedies were in fact exhausted. The Government’s objection must therefore be dismissed. As to the merits of the applicant’s complaints concerning the outcome of the proceedings, the Court recalls that according to Article 19 of the Convention its duty is to ensure the observance of the engagement undertaken by the Contracting States in the Convention. In particular, it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no.   30544/96, § 28, ECHR 1999 ‑ I). It is true that in the present case the applicant also complained about the partiality of the Sisak County Court and relied on Article 6   §   1 of the Convention. In this respect, the Government argued that judge L.H. was never involved in deciding the applicant’s case. Moreover, the applicant never raised suspicions that any of the judges who were actually deciding her case might have been biased. At the time when the applicant lodged her appeal with the Sisak Court Court, judge L.H. was no longer the acting president of that court. Furthermore, the applicant’s doubts as to the possible influence judge L.H. may have exercised on her colleagues deciding the case are speculative and, in any event, unsubstantiated. The applicant admitted that judge L.H. ceased to be the acting president of the Sisak County Court approximately one month before the lodging of her appeal, but she was then appointed president of the civil division of the same court, thereby preserving some influence over her colleagues. In this connection, the applicant pointed out the failure of the Sisak County Court to forward her request for transfer of jurisdiction to the Supreme Court. The applicant further submitted that during the first-instance proceedings judge L.H. had a strong personal interest in the case conducted by her husband and other relatives and that she had even drafted many of the plaintiffs’ submissions. Lastly, the applicant argued that the Constitutional Court did not remedy the violation of her rights allegedly committed by the Sisak County Court, because it did not address that part of her constitutional complaint. The Court considers, in the light of the parties’ submissions, that the present case raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that the application is not manifestly ill-founded within the meaning of Article 35   §   3 of the Convention. No other ground for declaring it inadmissible has been established. For these reasons, the Court unanimously Declares the application admissible, without prejudging the merits.   Søren Nielsen   Christos Rozakis   Registrar   President