SECOND SECTION

DECISION

Application no. 47453/17 Davor GJURAÅ IN against Croatia

The European Court of Human Rights (Second Section), sitting on 16 January 2024 as a Committee composed of:

Pauliine Koskelo , President , Lorraine Schembri Orland, Davor Derenčinović , judges , and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 47453/17) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 30 June 2017 by a Croatian national, Mr Davor Gjurašin (“the applicant”), who was born in 1957 and lives in Zagreb and who was granted leave to represent himself in the proceedings before the Court;

the decision to give notice of the complaint concerning the lack of impartiality of the Supreme Court to the Croatian Government (“the Government”), represented by their Agent, Ms Š. Stažnik, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The application mainly concerns the alleged lack of impartiality of the Supreme Court in three sets of proceedings which ended in 2010 and 2014, respectively, and in which that court dismissed the applicant’s appeals against three decisions of the Croatian Bar Association. By those decisions he had been temporarily suspended from practicing law as an advocate, pending the outcome of the concurrent disciplinary proceedings instituted against him before the Bar Association because of unpaid membership fees.

2 . Specifically, by a judgment of 25 February 2010 the Supreme Court dismissed the applicant’s appeal against the Bar Association’s decision of 17 October 2009. By two judgments adopted on 11 December 2014 that court dismissed the applicant’s appeals against the two Bar Association’s decisions of 14 December 2013. In each of the three cases the Supreme Court sat in a panel composed of three judges and two advocates (members of the Bar), as provided in the Advocates Act ( Zakon o odvjetništvu ).

3 . The applicant lodged constitutional complaints against the Supreme Court’s judgments. He complained, inter alia , that the Supreme Court could not have been considered impartial because its panel had been composed of two advocates, that is, of two members of the Bar Association the decisions of which he had challenged before that court.

4 . By a decision of 8 April 2014, the Constitutional Court dismissed the applicant’s constitutional complaint against the Supreme Court’s judgment of 25 February 2010 and notified the applicant of its decision on 6 May 2014. By two decisions of 19 February 2015, it declared inadmissible his constitutional complaints against the two Supreme Court’s judgments of 11 December 2014 and notified the applicant of those decision on 5 March 2015.

5 . On 18 April 2016 and 10 January 2017, respectively, the applicant requested the National Judicial Council to provide him with assets declarations of two of the three professional judges who had sat in the Supreme Court’s panel in the above cases, namely of Judge D.L.I. and Judge J.J. He did so because, after hearing some rumours, he had started suspecting that those judges had been paid by the Bar Association for some services they had rendered for it.

6 . The National Judicial Council had initially refused his request. However, after its decisions had been three times quashed by the Information Commissioner following the applicant’s appeals, it eventually provided the applicant with the requested documents. He received them in the period between 26 May and 6 July 2017. From those documents the applicant learned that the two judges in question had indeed been remunerated by the Bar Association for lectures given there. Specifically, Judge D.L.I. had received such remuneration in 2013 and 2014, which she reported to the National Judicial Council in February 2014 and February 2015 respectively. Judge J.J. had received such remuneration in 2014, 2015 and 2016, which he reported in February 2015, 2016 and 2017.

7 . Before the Court the applicant complained, under Article 6 § 1 of the Convention, that the Supreme Court had not been impartial because its panel had not only included two advocates, members of the Bar, but also two judges who had at the relevant time been paid by the Bar Association, the decisions of which he had challenged before that court.

8 . In his observations of 27 August 2019, the applicant for the first time complained, also under Article 6 § 1 of the Convention, of the impartiality of the Constitutional Court in the first proceedings which ended with that court’s decision of 8 April 2014 (see paragraph 4 above). In particular, he complained that Judge M.B., who was a former advocate and thus a former member of the Bar, had sat in a panel which had adopted that decision.

THE COURT’S ASSESSMENT

9 . The Court emphasises at the outset that in his application the applicant did not maintain the argument he had raised before domestic courts, namely that the mere fact that the two advocates had sat in the Supreme Court’s panel was in itself sufficient to call into question that court’s impartiality (see paragraph 3 above). Rather, before the Court he complained that the combination of that element together with the participation of the two professional judges who had received remuneration from the Bar Association had rendered the Supreme Court’s impartiality open to doubt (see paragraph 7 above).

10. The Court nevertheless reiterates that, from the viewpoint of objective impartiality, participation of members of certain professions in the panel of a tribunal deciding on disciplinary matters raises no issue under the Convention as long as such members, like in the present case, act in a personal capacity (see Albert and Le Compte v. Belgium , 10 February 1983, § 32, Series A no. 58).

11. The Government disputed the admissibility of this part of the application, arguing that the applicant had not exhausted domestic remedies, inter alia , because he had not requested the reopening of the proceedings before the Supreme Court. In the alternative, they argued that the applicant had not complied with the six-month time-limit and that these complains were, in any event, manifestly ill-founded.

12. The Court notes that the assets declarations obtained by the applicant in respect of the two judges whose impartiality he was calling into question suggest that they had received remuneration from the Bar Association in the period between 2013 and 2016 (see paragraph 6 above) for the lectures given there. This means that, in so far as the applicant complains of those judges’ participation in the adoption of the Supreme Court’s judgment of 25 February 2010 (see paragraph 2 above), their impartiality cannot be called into question on that account.

13. It follows that this complaint is, in any event, inadmissible under Article 35 § 3 (a) of the Convention for being manifestly ill-founded and that it must therefore be rejected pursuant to Article 35 § 4 thereof.

14. The Court reiterates that a request for the reopening of proceedings does not, as a rule, constitute an effective remedy for the purposes of Article 35 § 1 of the Convention (see, for example, Hrdalo v. Croatia , no. 23272/07, § 45, 27 September 2011, and the cases cited therein). However, in cases like the present one the Court has, exceptionally, found similar remedies effective (see, for example, Kiiskinen and Kovalainen v. Finland (dec.), no. 26323/95, 1 June 1999; Nikula v. Finland (dec.), no. 31611/96, 30 November 2000; and K.S. and K.S. AG v. Switzerland , no. 19117/91, Commission decision of 12 January 1994).

15 . In particular, under the relevant domestic law, namely the 2010 Administrative Disputes Act, which was also applicable at the material time, the participation in the adoption of the contested judgment of a judge who had had to withdraw is listed among the grounds for reopening of a case (compare Kiiskinen and Kovalainen , cited above, and Nikula , cited above). The absolute time-limit after which reopening could no longer be sought is one year from the finality of the contested judgment. In the present case that time-limit started to run from the date of the adoption of the two Supreme Court’s judgments of 11 December 2014 (see paragraph 2 above), which means that the applicant could have requested the reopening of the second and the third set of proceedings until 11 December 2015.

16. Unlike a constitutional complaint, of which the applicant availed himself (see paragraph 3 above), the request for reopening was the only effective remedy in the circumstances as it left him enough time to obtain information which, in his view, called into question the impartiality of the two judges in question. That is so because the thirty-day time-limit for lodging a constitutional complaint was too short to obtain that information, it being understood that after the expiry of that time-limit a constitutional complaint could no longer be amended or supplemented.

17. The applicant averred that he had not lodged a request for reopening because it was only in 2016 that he had started having doubts about the impartiality of the two judges in question on account of their links with the Bar Association (see paragraph 5 above).

18. In this connection the Court observes that the information on which the applicant could have based a request for reopening (the remuneration the two judges had received in 2014 from the Bar Association) had been available from February 2015 (see paragraphs 6 above). That was nine and a half months before the expiry of the time-limit for lodging that remedy (see paragraph 15 above). However, the applicant did not request that information until April 2016 (see paragraph 5 above), that is, a year and almost two months after the relevant information had become available.

19. That being so, and having regard to its case-law (see Tabak v. Croatia , no. 24315/13, §§ 78-80, 13 January 2022), the Court considers that this delay cannot be considered justified. The applicant, who was a former advocate, failed to act with the necessary diligence in obtaining the information on which he could have based a request for reopening.

20. Given that in the present case the delay in obtaining the relevant information was mainly and objectively imputable to the applicant, the adverse consequences of that delay, namely the expiry of the one-year time ‑ limit for lodging a request for reopening, rest on the applicant (compare also Tabak , cited above, § 80).

21. It follows that this complaint is inadmissible under Article 35 § 1 of the Convention for non-exhaustion of domestic remedies and that it must therefore be rejected pursuant to Article 35 § 4 thereof.

22. The Court notes that the applicant had been notified of the Constitutional Court’s decision of 8 April 2014 involving Judge M.B. on 6 May 2014 whereas he raised this complaint for the first time in his observations of 27 August 2019 (see paragraphs 4 and 8 above), that is, more than six months later.

23. It follows that this complaint is inadmissible under Article 35 § 1 of the Convention for non-compliance with the six‑month rule and that it must therefore be rejected pursuant to Article 35 § 4 thereof.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 8 February 2024.

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Dorothee von Arnim Pauliine Koskelo Deputy Registrar President