FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 71615/01 by Ivan MEŽNARIĆ against Croatia

The European Court of Human Rights (First Section), sitting on 11 December 2003 as a Chamber composed of

Mr C.L. Rozakis , President , Mr P. Lorenzen , Mr G. Bonello , Mrs F. Tulkens , Mrs N. Vajić , Mrs E. Steiner , Mr K. Hajiyev , judges , and Mr S. N IELSEN , Deputy Section Registrar ,

Having regard to the above application lodged on 25 June 2001,

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, Mr Ivan Mežnarić , is a Croatian citizen, who was born in 1954 and lives in Zagreb. He is represented before the Court by Ms Slađana Rajačić , a lawyer practising in Zagreb. The respondent Government are represented by their Agent, Ms Lidija Lukina-Karajković .

A. The circumstances of the case

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

On 10 July 1991 M.T. and H.T. filed an action in the Zagreb Municipal Court ( Općinski sud u Zagrebu ) against the applicant seeking damages flowing from a contract to perform some construction work.

From 27 November 1991 until 27 January 1992 the plaintiffs were represented by their legal counsel, M.V. and thereafter by his daughter, S.T.

On 28 April 1992 the court granted the plaintiffs’ claim. However, upon the applicant’s appeal the judgment was quashed on 9 February 1993 by the Zagreb County Court ( Okružni sud Zagreb ) and the case was remitted for re-trial.

The applicant alleges that at this stage of the proceedings he filed an application with the Zagreb Municipal Court challenging the trial judge for bias and incompetence and requesting her to withdraw from the case. He also alleges that this application was never dealt with.

On 6 July 1993 the Zagreb Municipal Court with the same presiding judge again granted the plaintiffs’ claim.

In his subsequent appeal the applicant submitted, inter alia , that his application requesting the trial judge to vacate her seat was never dealt with.

On 27 September 1994 the Zagreb County Court revised the first instance judgment granting the plaintiffs’ claim in part. As to the applicant’s request that the trial judge should have withdrawn, the court found that the case-file contained no such request.

The applicant then filed a request for revision in the Supreme Court maintaining, inter alia , that he was unable to present his case before the trial court.

On 8 December 1999 the Supreme Court rejected the applicant’s request for revision.

On 28 July 2000 the applicant filed a constitutional complaint. He argued that it was contrary to the provisions of the Civil Procedure Code ( Zakon o parničnom postupku ) and thus contrary to his constitutional right to a fair trial that the lower courts had not examined his request that the presiding judge of the Municipal Court should withdraw.

On 24 August 2000 the plaintiffs’ counsel S.T. informed the Zagreb Municipal Court that she had ceased to represent the plaintiffs some four years earlier.

On 18 December 2000 the Constitutional Court rejected the applicant’s complaint. It found that the right complained of by the applicant was not a constitutional right. One of the judges of the Constitutional Court was M.V., who had previously represented the applicant’s opponents from 27 November 1991 until 27 January 1992 during the proceedings before the Zagreb Municipal Court.

B. Relevant domestic law

The relevant parts of the 1999 Constitutional Act on the Constitutional Court (the Official Gazette no. 99 of 29 September 1999 - Ustavni zakon o Ustavnom sudu Republike Hrvatske ) provide as follows:

Article 26 § 6

“ A judge of the Constitutional Court may not abstain from voting, save where he has participated in the adoption of a law or decision upon which the Court is required to rule. ”

Article 72 provides that in the event of a successful outcome of the constitutional complaint the Constitutional Court quashes the impugned decisions and refers the matter back to the competent body.

COMPLAINT

The applicant complains under Article 6 § 1 of the Convention that he was deprived of his right to fair hearing by an impartial tribunal due to the fact that his constitutional complaint was decided upon by a panel of judges which included M.V.

THE LAW

The applicant complains that judge M.V. who sat in the Constitutional Court’s panel which rejected his constitutional complaint had prior to that represented his opponents in the proceedings the constitutionality of which the Constitutional Court was called upon to determine. He complains also that subsequently the opponents were represented by M.V.’s daughter. The applicant, therefore, challenges the impartiality of the judge. He relies on Article 6 § 1 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 an independent and impartial tribunal established by law.”

1. The Government firstly submit that the applicant has not complied with the six months rule set out in Article 35 §§ 1 and 4 of the Convention. They submit that the applicant introduced his application with the Court on 12 November 2001 whereas the final domestic decision was served on his counsel on 5 January 2001.

The applicant contests the Government’s arguments.

The Court notes that, contrary to the Government’s assertion, the applicant’s application was submitted on 25 June 2001 and received by the Court on 3 July 2001. Thus, the applicant complied with the time limit prescribed by Article 35 § 1 of the Convention.

It follows that the Government’s objection must be rejected.

2. In the alternative the Government invite the Court to find the application manifestly ill-founded.

As to the question of the independence of the Constitutional Court, they assert that in determining whether a body can be considered to be independent regard must be taken of the manner of appointment of its members and the duration of their term of office, the existence of guarantees against outside pressures, and the question whether the body presents an appearance of independence. Furthermore, a national court has to be independent of the executive and of the parties to the case.

In this respect they argue that the Constitutional Court is independent from the executive and that the judges of the court reach their decisions impartially. The judges of the Constitutional Court are elected by Parliament for a period of eight years and during their mandate may not carry out any other public and/or professional duty. They are not allowed to be members of any political party and they enjoy immunity.

As to the impartiality of judge M.V. the Government maintain that, although he had represented the applicant’s opponents at an earlier stage in the proceedings, this engagement did not influence his impartiality because his legal representation in the case had lasted for a very short period of time and had taken place many years before the Constitutional Court was called upon to decide the applicant’s case. Furthermore, at the stage when he represented the applicant’s opponents no procedural decision or decision on the merits was taken.

The Government argue that judge M.V. was not obliged under domestic law to withdraw from the case.

In the Government’s opinion there were no elements to indicate either subjective or objective impartiality on behalf of judge M.V.

The applicant argues that the judge who previously represented his opponents cannot appear to be impartial.

The Court considers, in the light of the parties’ submissions, that the application 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 of the case.

Søren N IELSEN Christos Rozakis              Deputy Registrar President