SECOND SECTION

DECISION

Application no 77707/13 Jasmin SMAILAGIĆ against Croatia

The European Court of Human Rights (Second Section), sitting on 10 November 2015 as a Chamber composed of:

Işıl Karakaş, President, Julia Laffranque, Nebojša Vučinić, Valeriu Griţco, Ksenija Turković, Jon Fridrik Kjølbro, Stéphanie Mourou-Vikström, judges, and Abel Campos , Deputy Section Registrar ,

Having regard to the above application lodged on 29 November 2013 ,

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

1 . The applicant, Mr Jasmin Smailagić, is a Croatian national, who was born in 1951 and lives in Rijeka. He was represented before the Court by Mr V. Margan, a lawyer practising in Rijeka.

2 . The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

A. The circumstances of the case

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

4 . On 29 March 2001 an investigating judge of the Zagreb County Court ( Ž upanijski sud u Zagrebu ) opened an investigation in respect of the applicant and another person in connection with a suspicion of economic crime.

5 . The applicant appealed against that decision on 9 April 2001, arguing that it had not been sufficiently established that he had committed the alleged offences at issue.

6 . On 26 April 2001 a three-judge panel of the Zagreb County Court, composed of Judges S.P.L., T.I.T. and S.B.B., dismissed his appeal and upheld the decision of the investigating judge on the grounds that a sufficient degree of reasonable suspicion existed to warrant the opening of an investigation.

7 . Following the investigation, on 21 February 2002 the Zagreb Municipal State Attorney ’ s Office ( Op ć insko državno odvjetni š tvo u Zagrebu ) indicted the applicant and another person in the Zagreb Municipal Criminal Court ( Op ć inski kazneni sud u Zagrebu ) on charges of misfeasance in business.

8 . On 31 May 2007 the applicant was found guilty as charged and sentenced to ten months ’ imprisonment, suspended for three years.

9 . The Zagreb Municipal State Attorney ’ s Office challenged this judgment, with an appeal lodged before the Zagreb County Court on 17 July 2007, arguing that the sentence was too lenient.

10 . On 31 July 2007 the applicant also lodged an appeal against the judgment, alleging numerous substantive and procedural flaws.

11 . An appeal hearing before a panel of judges of the Zagreb County Court, composed of Judges S.B.B., L.S. and T.I.T., was held on 29 January 2008. The applicant and his lawyer were present at the hearing. They did not object to the composition of the appeal panel.

12 . On the same day the Zagreb County Court quashed the first-instance judgment and remitted the case on the grounds of insufficient reasoning in the judgment.

13 . Following a retrial, on 13 November 2008 the Zagreb Municipal Criminal Court found the applicant guilty as charged and sentenced him to ten months ’ imprisonment, suspended for two years.

14 . The applicant appealed to the Zagreb County Court on 2 January 2009, alleging numerous substantive and procedural flaws in the first-instance judgment.

15 . At an appeal hearing held on 17 November 2009 before a panel of judges of the Zagreb County Court, composed of Judges S.B.B., L.S. and T.I.T., the applicant and his lawyer reiterated the appeal arguments. They did not object to the composition of the appeal panel.

16 . On the same day the Zagreb County Court dismissed the applicant ’ s appeal as ill-founded and upheld the first-instance judgment.

17 . On 26 February 2010 the applicant lodged a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ) complaining, inter alia , that the appeal court had not been impartial owing to the fact that Judges S.B.B. and T.I.T. had sat on the panel which had dismissed his appeal, and the same judges had previously upheld the decision to open an investigation against him in connection with the same offences.

18 . On 9 May 2013 the Constitutional Court dismissed the applicant ’ s constitutional complaint as ill-founded on the grounds that the questions which Judges S.B.B. and T.I.T. had had to answer when deciding on the opening of an investigation against him differed from those questions which they had examined upon his appeal against the first-instance judgment adopted after a hearing on the merits of the charges held against him. The Constitutional Court therefore considered that there was nothing to warrant calling into question the impartiality of these particular judges.

19 . The decision of the Constitutional Court was sent to the applicant ’ s representative on 10 June 2013.

B. Relevant domestic law and practice

1. Relevant domestic law

20 . The relevant provision of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske , Official Gazette nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum), 76/2010, 85/2010 and 05/2014) reads:

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.”

21 . At the material time, the relevant provisions of the Code of Criminal Procedure ( Zakon o kaznenom postupku , Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/02, 62/2003 and 115/2006) provided:

Article 36

“(1) A judge or lay judge shall be excluded from sitting in a case:

1. if he has been injured by the offence;

2. if he is the spouse, a relative by blood, either lineal, descending or ascending, or collateral to the fourth degree, or related by affinity to the second degree, to the defendant, his counsel, the prosecutor, the injured person, their legal guardian or legal representative;

3. if he is a legal guardian, ward, adopted child or adoptive parent, foster parent or foster child of the defendant, his counsel, the prosecutor or the injured person;

4. if in the same criminal case he has carried out investigative actions, or has taken part in deciding on an objection to the indictment, or if he has taken part in the proceedings as a prosecutor, defence counsel, legal guardian or legal representative of the injured person or the prosecutor, or if he has testified as a witness or as an expert witness;

5. if in the same case he has taken part in adopting the decision of a lower court or in adopting a decision of the same court being challenged by means of an appeal or extraordinary remedy.

(2) A judge or lay judge may be removed or remove himself from a particular case if it has been argued and proved that there are circumstances other than those listed in the previous paragraph which call his impartiality into doubt.”

Article 37

“(1) A judge or lay judge, as soon as he discovers a ground for exclusion referred to in Article 36, paragraph 1, of this Code, shall discontinue all activity on the case and report the matter to the president of the court, who shall appoint a substitute judge ...

(2) If a judge or lay judge holds that other circumstances exist which would justify his standing down (Article 36, paragraph 2), he shall inform the president of the court thereof.”

Article 38

“(1) Disqualification of a judge may also be requested by one of the parties ...

(2) A party may seek the disqualification of a judge of a higher court in the appeal or reply to the appeal [of the other party]. In any event, it must be at the latest before the commencement of the hearing of that court.

... ”

2. Relevant practice

22 . In the decision no. U-III-3116/2002 of 17 September 2004 the Constitutional Court examined whether the previous involvement of a judge, who dismissed an appeal against the investigating judge ’ s decision opening an investigation, required exclusion of the judge from the subsequent participation in the proceedings under Article 36 § 1 of the Code of Criminal Procedure. The relevant part of the decision reads:

“With regard to the arguments from the constitutional complaint that there has been a fundamental error of the proceedings because a judge participating in the main hearing should have been excluded from the case, the Constitutional Court notes as follows:

Under Article 36 § 1(4) of the Code of Criminal Procedure (Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002 and 62/2003 – consolidated text) a judge or a lay judge shall be excluded from sitting in a case if in the same criminal case he has carried out investigative actions, or has taken part in deciding on an objection to the indictment, or if he has taken part in the proceedings as a prosecutor, defence counsel, legal guardian or legal representative of the injured person or the prosecutor, or if he has testified as a witness or as an expert witness.

Under Article 367 § 1(2) of the Code of Criminal Procedure a fundamental procedural error exists if a judge or a lay judge who should have been excluded (Article 36 § 1) sat in the case during the main hearing.

The County Court ’ s case file shows that the investigation, that is to say investigative actions, had been carried out by Judge M.B., an investigating judge of the Split County Court, and that Judge J.Č., who presided the trial panel of the first-instance court, as a member of a three-judge panel, had decided upon the appeals against the decision of the investigating judge opening the investigation and ordering pre-trial detention ...

In view of the provisions of the Code of Criminal Procedure, and having regard to the above findings ... the [Constitutional] Court finds that an alleged fundamental error in the proceedings at issue has not occurred, which could lead to a violation of the constitutional right to a fair trial.”

23 . In the case no. Kž-211/11-9, on 29 January 2015, the Supreme Court also explained:

“ ... Article 36 § 1 of the Code of Criminal Procedure concerns instances in which a judge is excluded from sitting in a case if in the same criminal case he has carried out investigative actions, or has taken part in deciding on an objection to the indictment, or if he has taken part in the proceedings as a prosecutor, defence counsel, legal guardian or legal representative of the injured person or the prosecutor, or if he has testified as a witness or as an expert witness.

The reasons referred to in Article 36 § 1(4) of the Code of Criminal Procedure are exhaustive, and those reasons do not include participation of a judge in the decision on appeal against a decision opening an investigation.”

24 . On 22 February 2008, in case no. Su-IV-187/08, the Supreme Court ( Vrhovni sud Republike Hrvatske ) examined on the merits a request for the disqualification of two of its judges lodged by the defence under Article 36 § 2 of the Code of Criminal Procedure just before the commencement of an appeal hearing before that court.

25 . In case no. Su-1174/10, on 22 November 2010 the Zagreb County Court examined on the merits a request for the disqualification of a judge submitted just before the commencement of an appeal hearing before that court.

COMPLAINT

26 . The applicant complained, under Article 6 § 1 of the Convention, about the lack of impartiality of the appeal court due to Judges S.B.B. and T.I.T. ’ s previous involvement in the case.

THE LAW

27 . Complaining of a lack of impartiality of the appeal court the applicant relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

A. The parties ’ arguments

28 . The Government pointed out in particular that the applicant had never requested the disqualification of Judges S.B.B. and T.I.T., although he had had every opportunity to do so, which meant that he did not properly exhaust the domestic remedies. Specifically, the applicant and his lawyer had been well aware of the composition of the appeal panel, in which the two judges had sat, given that they had been informed of the appeal hearings held on 29 January 2008 and 17 November 2009 and they had duly availed themselves of the opportunity to appear before the Zagreb County Court on both occasions. However, they had not made any objection to the composition of the appeal panel nor had they requested the disqualification of the judges in question. The Government therefore, relying on the case-law in Zahirović v. Croatia (no. 58590/11 , § 35, 25 April 2013), considered that the applicant ’ s complaint concerning the lack of impartiality of Judges S.B.B. and T.I.T. should be declared inadmissible.

29 . The applicant maintained that the appeal panel of the Zagreb County Court, on which Judges S.B.B. and T.I.T. had sat, had lacked the requisite impartiality given that both of these judges, at an earlier stage of the proceedings dealing with the question of opening an investigation against him, had examined all evidence central to the case and decided that the investigation could be opened. The applicant therefore considered that the judges in question should not have sat on the panel deciding his appeal against the first-instance judgment which had found him guilty of the same offence in respect of which the investigation had been conducted.

B. The Court ’ s assessment

30 . The Court considers that it is not necessary to address all the Government ’ s objections since this complaint is in any event inadmissible for the following reasons.

33 . The Court notes in the case at hand that, similar to what was observed in the Zahirović case, the applicant was well aware of the previous involvement of Judges S.B.B. and T.I.T. in his case yet he did not make a complaint or objection on the composition of the panel either during the appeal hearing of 29 January 2008 (see paragraph 11 above) or at the appeal hearing of 17 November 2009 (see paragraph 15 above). He in fact raised the matter for the first time in his constitutional complaint against the second decision adopted by these judges on 17 November 2009, which was not favourable to him (see paragraph 17 above).

34 . At the same time, there was no reason under the relevant domestic law for the judges to be automatically excluded ( isklju č enje ) from the case (see paragraph 21, Article 36 § 1 of the Code of Criminal Procedure; and paragraphs 22 and 23 above), but it was for the applicant to raise his arguable concerns concerning their alleged lack of impartiality by asking for their removal ( otklon ) from the case (see paragraph 21 above, Articles 36 § 2 and 38 § 2 of the Code of Criminal Procedure; and paragraphs 24 and 25 above). This is particularly true given that he has had every opportunity during the hearings before the Zagreb County Court in which he and his lawyer duly participated to seek for their removal (see paragraphs 11 and 15 above).

35 . Moreover, as the Court has constantly held, the previous involvement of a judge in the case is not in itself sufficient to give rise to a conclusion as to the lack of impartiality of the judge or court concerned. Whether the possible misgivings on the part of the accused as to the impartiality of the judge related to his or her previous involvement in the case should be treated as objectively justified depends on the circumstances of each particular case (see Hauschildt v. Denmark , 24 May 1989, § 49, Series A no. 154; and Garrido Guerrero v. Spain (dec.), no. 43715/98, ECHR 2000 III). In this connection the existence of national procedures for ensuring impartiality, namely rules regulating the withdrawal of judges, should be taken into account as relevant factor (see Zahirović , cited above, § 35). Such rules manifest the national legislature ’ s concern to remove all reasonable doubts as to the impartiality of the judge or court concerned and constitute an attempt to ensure impartiality by eliminating the causes for such concerns (see Mežnarić v. Croatia , no. 71615/01, § 27, 15 July 2005; and Micallef v. Malta [GC], no. 17056/06, § 99, ECHR 2009).

37 . Consequently, the Court rejects the applicant ’ s complaint as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 3 December 2015 .

Abel C a mpos Işıl Karakaş Deputy Registrar President