CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 2 octobre 2012

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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. A.     The circumstances of the case 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 First ‑ Instance 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 ill ‑ founded 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. B.     Relevant domestic law 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: Article 29 “(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: Section 110 Disciplinary action shall be taken against police officers responsible for breaches of work discipline.” Section 112 “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...” COMPLAINTS 19.     The applicant complained under Article 6 § 1 of the Convention about the outcome and the lack of fairness of the disciplinary proceedings. 20.     He also complained under Article 13 of the Convention that he did not have an effective remedy in respect of his Article 6 complaint. THE LAW 21.     As regards his complaint related to the disciplinary proceedings as such, the applicant relied on Article 6 of the Convention which, in so far as relevant, reads as follows:   “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 22.     In addition to his objection to the outcome of the proceedings, the applicant complained that the witness statements on which the disciplinary court had based its decision had been made only to the police, and that these witnesses had not been heard by the disciplinary court, nor had he been afforded the opportunity to cross-examine them. 23.     The Government argued that the applicant had not raised the same issues as those he was raising before the Court in his constitutional complaint. They stressed furthermore that the disciplinary proceedings had been conducted fairly and that the applicant had been given an adequate opportunity to participate in the proceedings and to present his evidence, which had been duly taken into consideration by the disciplinary bodies. The Government pointed out that the applicant had never requested that the witnesses be heard during the disciplinary proceedings, nor had he raised any objection when their statements given to the police had been read out during the hearing. 24.     The Court finds that it is not necessary to address the Government’s objection as regards the exhaustion of domestic remedies since the application is in any event inadmissible for the following reasons . 25.     With regard to the outcome of the proceedings of which the applicant complained, the Court reiterates that, in accordance with Article   19 of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties to the Convention. In particular, the Court is not competent to deal with an application alleging that errors of law or fact have been committed by the domestic courts, except when it considers that such error might have involved a possible violation of any of the rights and freedoms set out in the Convention (see Schenk v.   Switzerland , 12 July 1988, § 45, Series A no. 140). 26.     The applicant also complained, under the above provision, that the disciplinary proceedings had not been fair in that the written statements used in the proceedings had been made only to the police without him having had a possibility to cross-examine the witnesses. The Court will examine this complaint under the civil head of Article 6 of the Convention (see Melek Sima Yılmaz v.   Turkey , no.   37829/05, § 19, 30 September 2008; Olujić v. Croatia , no.   22330/05, §§ 34 and 44, 5 February 2009; Bayer v.   Germany , no. 8453/04, § 39, 16 July 2009; and Vanjak v. Croatia , no.   29889/04, § 33, 14 January 2010). 27.     In this respect the Court reiterates that the requirements inherent in the concept of a fair hearing are not necessarily the same in cases concerning the determination of civil rights and obligations as they are in cases concerning the determination of a criminal charge. This is borne out by the absence of detailed provisions such as paragraphs 2 and 3 of Article 6 applying to cases in the former category. Thus, although these provisions have a certain relevance outside the strict confines of criminal law (see, mutatis mutandis , Albert and Le Compte v. Belgium , 10 February 1983, Series A no. 58, § 39), the Contracting States have greater latitude when dealing with civil cases concerning civil rights and obligations than they have when dealing with criminal cases (see Pitkänen v. Finland , no.   30508/96, § 59, 9 March 2004). 28.     Nevertheless, certain principles of the motion of a fair hearing in cases concerning the civil rights and obligations emerge from the Court’s case-law. Most significantly for the present case, it is clear that the requirement of equality of arms, in the sense of a fair balance between the parties, applies in principle to such cases as well as to criminal cases (see Dombo Beheer B.V. v. the Netherlands , 27 October 1993, § 33, Series A no.   274). 29.     In the present case the Court notes that the finding of the applicant’s responsibility for a disciplinary offence relied on a number of statements given to the police. The persons who had given those statements, other than the applicant, were not heard by the disciplinary courts. In this connection the Court has held, in the context of criminal proceedings, that all evidence must normally be produced in the presence of the accused. This does not mean, however, that a statement of a witness must always be made in court if it is to be admitted in evidence, but what is essential in order to secure the right to a fair hearing in civil proceedings is an opportunity for the person concerned to acquaint himself with the documents and to challenge and comment on them. 30.     In this respect the Court notes that at the hearing before the disciplinary court the applicant, who was represented by a lawyer, was duly informed of all the evidence against him and given an adequate opportunity to comment on the evidence adduced (see, a contrario , Vanjak, cited above, § 56). After the evidence had been read out, including the written records of the witness statements, the applicant and his lawyer made no objection in relation to the manner in which the evidence had been taken and made no request for the hearing of witnesses. Defence counsel, however, asked the disciplinary court that the written statements of further witnesses, namely the police officers T.P., Đ.J. and S.B., be admitted in evidence, without asking that they give oral evidence. 31.     In these circumstances the Court considers that the applicant was provided with sufficient information enabling him to participate properly in the proceedings. He was afforded an opportunity to comment on all available material and during the disciplinary proceedings made no objections as to the procedure in which the evidence was taken. 32.     Thus, the applicant failed to use the opportunity to submit his comments on and objections to the evidence submitted at the trial stage of the proceedings. Owing to that failure, his further arguments before the Administrative Court and the Constitutional Court as to the alleged unfairness of the proceedings (see paragraphs 11 and 14) bear no significance as to his right to a fair trial (see Ferenčić-Stoilova v. Croatia (dec.), no. 33277/06, 13 March 2008). 33.     Against this background, the Court considers that the applicant’s complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 34.     The applicant further complained, under Article 13 of the Convention, that he had had no effective remedy at his disposal in respect of his Article 6 complaints. Article 13 of the Convention reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 35.     The Court notes that the applicant lodged an appeal against the first ‑ instance decision and also an administrative action with the Administrative Court against the decisions of the disciplinary bodies, as well as a constitutional complaint with the Constitutional Court, which duly examined all the applicant’s complaints. Therefore, the applicant’s complaints in this respect are unfounded. 36.     It follows that the applicant’s complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   Søren Nielsen   Anatoly Kovler   Registrar   President