FIRST SECTION
CASE OF MLINAREVIĆ v. CROATIA
(Application no. 24406/21)
 
 
 
JUDGMENT
Art 6 § 1 (criminal) • Impartial tribunal • Lack of objective impartiality of Constitutional Court in criminal proceedings (the “Planinska” case) against, inter alia, the applicant and the former Prime Minister of Croatia • Son of one of the judges – the panel’s acting President and rapporteur in the case – was employed at the law firm of the lawyer representing one of the applicant’s co-defendants and thus in a position of dependence and subordination to that lawyer • Former law office of judge in question was, upon his appointment to the Constitutional Court, “taken over” by lawyers from the same law firm • Judge did not inform the Constitutional Court’s President of those circumstances nor attempted to recuse himself • Applicant’s doubts as regards lack of impartiality objectively justified
 
Prepared by the Registry. Does not bind the Court. STRASBOURG
30 April 2026
 
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Mlinarević v. Croatia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
 Ivana Jelić, President,
 Erik Wennerström,
 Raffaele Sabato,
 Frédéric Krenc,
 Mykola Gnatovskyy,
 Artūrs Kučs,
 Anna Adamska-Gallant, judges,
and Liv Tigerstedt, Deputy Section Registrar,
Having regard to:
the application (no. 24406/21) 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”) by a Croatian national, Mr Mladen Mlinarević (“the applicant”), on 23 April 2021;
the decision to give notice to the Croatian Government (“the Government”) of the complaint concerning the impartiality of a tribunal and to declare the remainder of the application inadmissible;
the withdrawal of Mr Davor Derenčinović, the judge elected in respect of Croatia, from sitting in the case (Rule 28 § 3 of the Rules of Court);
the decision of the President of the Section under Rule 29 § 2 (b) that less than three of the persons indicated in the list of ad hoc judges submitted in advance by the Government in accordance with Article 26 § 4 of the Convention and Rule 29 § 1 (a) satisfied the conditions set out in paragraph 1 (c) of this Rule;
the decision of the President of the Section to appoint Judge Mykola Gnatovskyy to sit as ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 2 (b)) in place of Mr Derenčinović;
the parties’ observations;
Having deliberated in private on 24 March 2026,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the alleged lack of impartiality of the Constitutional Court in criminal proceedings conducted against, inter alia, the applicant and Mr I. Sanader (the former Prime Minister of Croatia). The proceedings were widely referred to by the national media as the “Planinska” case. THE FACTS
2. The applicant was born in 1954 and lives in Zagreb. He was represented by Ms S. Marković, a lawyer practising in Zagreb. 3. The Government were represented by their Agent, Ms Š. Stažnik. 4. The facts of the case may be summarised as follows. 5. On 31 August 2012 the Office for the Suppression of Corruption and Organised Crime (Ured za suzbijanje korupcije i organiziranog kriminaliteta) indicted the applicant, Mr Sanader, S.F., P.Č., and the M. and C. companies before the Zagreb County Court for the criminal offences of abuse of power and authority or for instigating or aiding and abetting abuse of power and authority. The charges concerned the sale to the government of a property co-owned by the M. and C. companies and located on Planinska Street in Zagreb. 6. On 13 December 2012 a three-judge panel of the Zagreb County Court confirmed the indictment and sent the case for trial. Shortly thereafter, the proceedings were separated in respect of P.Č. 7. In the course of the proceedings against the remaining accused, S.F. and the two companies pleaded guilty, whereas the applicant and Mr Sanader denied the charges against them. 8. By a final judgment of 4 April 2019, the Supreme Court found all the accused guilty, partly upholding and partly overturning the judgment of the Zagreb County Court of 7 April 2017. The applicant was found guilty of aiding and abetting the abuse of power and authority and sentenced to one year’s imprisonment, which was replaced by community service. He was also ordered, jointly and severally with his co-accused, to pay compensation to the State in the amount of 14,919,196.05 Croatian kunas (roughly 1,980,100 euros (EUR)). 9. On 27 June 2019 the applicant lodged a constitutional complaint against the Supreme Court’s judgment, in which he complained of the unfairness of the criminal proceedings against him. The Constitutional Court examined his constitutional complaint jointly with one lodged by Mr Sanader. It dismissed both constitutional complaints by a decision of 26 November 2020, which was served on the applicant’s representatives on 7 December 2020. 10. The Constitutional Court sat as a panel of six judges, presided over by Judge R.M. Judge I.A.M., who usually acted as the panel’s president, and Judge M.Š. recused themselves from the case. According to the Government, Judge R.M. also acted as rapporteur in the case. 11. Prior to his appointment to the Constitutional Court on 7 June 2016, Judge R.M. had been a practising lawyer with his own law office. According to the parties’ submissions, upon R.M.’s appointment, his law office, that is, the representation in cases (unrelated to the proceedings in question in the present case) in which R.M. had been lead counsel, was “taken over” by lawyers from the law firm representing one of the applicant’s co‑defendants in the proceedings, namely the M. company. According to the applicant, that law firm also represented the co-defendant S.F. It further appears from the parties’ submissions that, in the period overlapping with the proceedings, Judge R.M.’s son was employed in the law firm in question as a trainee lawyer. RELEVANT LEGAL FRAMEWORK
12. The relevant Article of the Croatian Constitution (Ustav Republike Hrvatske, Official Gazette no. 56/1990, with subsequent amendments) reads as follows:
Article 122
“The Constitutional Court of the Republic of Croatia shall consist of 13 judges elected by the Croatian Parliament ...”
13. The relevant provisions of the Constitutional Court Act (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette nos. 99/1999 and 29/2002) read as follows:
Section 27(6)
“A judge of the Constitutional Court may not abstain from voting, unless he or she has participated in the enactment of a statute or subordinate legislation or the adoption of a decision upon which the Constitutional Court is required to rule.”
Section 34
“Unless provided otherwise by this Constitutional Act, in the proceedings before it the Constitutional Court shall apply mutatis mutandis the provisions of the relevant procedural laws of the Republic of Croatia as ancillary rules.”
Section 68
“(1) A panel composed of six judges shall decide on a constitutional complaint. (2) A panel composed of three judges shall decide on constitutional complaints which do not meet procedural requirements (belated, lodged by unauthorised persons or [otherwise] inadmissible). (3) The panel may only decide unanimously and with all its members present. (4) If the panel does not reach a unanimous decision, or if the panel considers that the issue [raised in] the constitutional complaint is of wider importance, the constitutional complaint shall be decided by the [plenary] session of the Constitutional Court.”
14. The relevant provisions of the Rules of Procedure of the Constitutional Court of the Republic of Croatia (Poslovnik Ustavnog suda Republike Hrvatske, Official Gazette no. 181/2003, with subsequent amendments) read as follows:
Section 23(3)
“If, owing to the nature of a given task, it is necessary to hold a session of a panel, and the absence of a particular judge who is a member of that panel is certain, or if a judge who is a member of that panel announces that he or she would abstain from voting in a case on the agenda, the President of the Constitutional Court shall designate a judge who is to replace at the session of the panel the absent judge or the judge who has announced that he or she would abstain from voting in a specific case.”
Section 53
“(1) A judge may not abstain from voting, unless he or she has participated in the enactment of a statute or subordinate legislation or in the adoption of a decision upon which the Constitutional Court is required to rule (section 27(6) of the Constitutional Court Act). (2) If the requirements for abstention from voting referred to in the previous subsection are met, the judge shall be obliged to inform the President of the Constitutional Court prior to the holding of the [plenary] session of the Constitutional Court or the session of the relevant panel. (3) If a decision ... is to be taken by a panel ... unanimously, and a judge who is a member of the panel announces his or her abstention from voting in a particular case on the agenda of the session of the panel, the President of the Constitutional Court shall act in accordance with section 23(3) of these Rules.”
15. The relevant Articles of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 152/2008, 76/2009, 80/2011, 91/2012, 143/2012, 56/2013, 145/2013, 152/2014, 70/2017 and 126/2019), as in force at the material time, read as follows:
Article 32
“(1) A judge or lay judge shall be excluded from sitting in a case:
...
2. if he or she is related to the defendant, his or her counsel, the prosecutor, the victim, the injured person, or the legal guardian or legal representative [of one of these persons through being a] spouse, a relative by blood (either lineal, descending or ascending, or collateral to the fourth degree), or a relative by affinity to the second degree;
...
4. if, in the case at issue, he or she ... has taken part in the proceedings as ... a lawyer of the defendant [or] a legal representative ...
... (2) A judge or lay judge may be recused in 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 or her impartiality into doubt.”
Article 33
“(1) A judge or lay judge, as soon as he or she discovers [the existence of] a ground for exclusion referred to in Article 32 § 1 of this Code, shall discontinue all activity in the case and inform the president of the court, who shall appoint a substitute judge ... (2) If a judge or lay judge considers that other circumstances exist which justify his or her recusal (Article 32 § 2), he or she shall inform the president of the court.”
Article 69 § 1
“Multiple defendants may have a joint defence lawyer if the criminal proceedings against them do not concern the same criminal offence or if this is not contrary to the interests of their defence.”
THE LAW
         ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
16. The applicant complained that the Constitutional Court had not been impartial, owing to the participation of Judge R.M. He submitted that, following Judge R.M.’s appointment to that court, his law office had been “taken over” by lawyers from the law firm representing two of the applicant’s co‑defendants in the proceedings in question. Furthermore, Judge R.M.’s son had been employed as a trainee lawyer at that law firm. The applicant relied on Article 6 § 1 of the Convention, which 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.”
   Admissibility
17. The Government argued that the applicant had failed to exhaust the available domestic legal remedies for his complaint. In particular, the applicant should already have known, when lodging his constitutional complaint, that Judge R.M. might take part in the Constitutional Court proceedings. He should therefore have lodged a request for the withdrawal of Judge R.M. in his constitutional complaint or during the proceedings before the Constitutional Court. 18. The applicant submitted that he had not been required to request Judge R.M.’s withdrawal. Rather, it had been incumbent on Judge R.M. to recuse himself from the case, which in accordance with the Constitutional Court’s long-standing practice he could have done regardless of whether the applicant had so requested. 19. The Court notes that there is no indication in the facts of the case or the parties’ submissions that the applicant knew or could have known before 7 December 2020 (when the Constitutional Court’s decision was served on his representatives – see paragraph 9 above) that his case would be decided by a panel of that court including Judge R.M. 20. In particular, in the period after the applicant had lodged his constitutional complaint and before the Constitutional Court adopted its decision, there was no oral and public hearing or other decision in the applicant’s case on the basis of which he could have anticipated the composition of the panel deciding it. The present case should thus be distinguished from Juričić v. Croatia, no. 58222/09, §§ 61-64, 26 July 2011, where the Court held that the applicant could have expected that the Constitutional Court would decide her case in a plenary session, inter alia, because it had in the same composition previously decided on the interim measure in the same case (ibid., §§ 62-63). 21. Furthermore, the Court observes that the Constitutional Court, which is composed of 13 judges (see paragraph 12 above), decides on constitutional complaints as a panel of six judges – as it did in the applicant’s case – unless a complaint is inadmissible, when it decides as a panel of three judges (see paragraph 13 above). Accordingly, and in contrast to the situation in Juričić (cited above, § 63), where the inclusion of a certain judge was not only possible but very likely, or Pirtskhalava and Y v. Georgia ((dec.), nos. 11025/22 and 11032/22, §§ 62‑64, 4 November 2025), where the inclusion of a certain judge in a panel deciding on the applicants’ appeals on points of law was more likely than not, in the present case it cannot be said that the likelihood of the applicant’s constitutional complaint being decided by a panel of the Constitutional Court including Judge R.M. was such that the applicant should have anticipated that possibility. The Court has already held that, in such circumstances, applicants are not obliged to pre-emptively request the withdrawal of judges whose impartiality could be open to doubt (see Croatian Golf Federation v. Croatia, no. 66994/14, §§ 110‑21, 17 December 2020). It sees no reason to hold otherwise in the present case and therefore dismisses the Government’s objection. 22. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. Merits     The parties’ submissions

23. The applicant contended that it had not been in the interests of his co‑defendants S.F. and the M. company – who had been represented by lawyers from the law firm which had “taken over” Judge R.M.’s law office and in which his son had been employed – that he be acquitted, since they had all been ordered jointly to pay damages to the State. Furthermore, while acknowledging that he had no information as to who had been the judge rapporteur in his case, he noted that, had it indeed been Judge R.M. as the Government had stated (see paragraph 10 above), that would additionally speak in favour of that judge’s bias. He moreover argued that, in any event, the fact that Judge R.M. had been one of the six judges comprising the panel which had unanimously decided on his constitutional complaint had not been decisive in examining the issue of objective impartiality since, in view of secrecy of deliberations, it had been impossible to determine the influence of a judge on the decision-making process. 24. The Government maintained that the applicant had failed to credibly show that Judge R.M. had lacked impartiality. 25. In particular, the Government pointed out that Judge R.M.’s son could not have represented, either personally or as a replacement, the applicant’s co‑defendants at any stage of the criminal proceedings, since at that time he had been a trainee lawyer who had not yet passed the bar examination. Furthermore, the existence of the link in question could also be interpreted as indicating that Judge R.M. had been “favourably inclined towards” all the defendants, including the applicant. The Government added, however, that such an interpretation would be as speculative as the one put forward by the applicant. Lastly, in view of the fact that the Constitutional Court, sitting as a six‑judge panel, had unanimously dismissed the applicant’s constitutional complaint, the Government maintained that the applicant’s claims that Judge R.M. could have influenced the entire panel were unfounded. The Court’s assessment   General principles

26. The Court reiterates that impartiality normally denotes the absence of prejudice or bias and its existence or otherwise can be tested in various ways. According to the Court’s settled case-law, the existence of impartiality for the purposes of Article 6 § 1 must be determined according to a subjective test where regard must be had to the personal conviction and behaviour of a particular judge, that is, whether the judge held any personal prejudice or bias in a given case; and also according to an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality (see, for example, Kyprianou v. Cyprus [GC], no. 73797/01, § 118, ECHR 2005-XIII; Micallef v. Malta [GC], no. 17056/06, § 93, ECHR 2009; Morice v. France [GC], no. 29369/10, § 73, ECHR 2015; and Ilnseher v. Germany [GC], nos. 10211/12 and 27505/14, § 287, 4 December 2018). 27. As to the subjective test, the principle that a tribunal must be presumed to be free of personal prejudice or partiality is long-established in the case-law of the Court (see Kyprianou, § 119; Micallef, § 94; and Morice, § 74, all cited above). The personal impartiality of a judge must be presumed until there is proof to the contrary (see Hauschildt v. Denmark, 24 May 1989, § 47, Series A no. 154). As regards the type of proof required, the Court has, for example, sought to ascertain whether a judge has displayed hostility or ill will for personal reasons (see De Cubber v. Belgium, 26 October 1984, § 25, Series A no. 86, and Morice, cited above, § 74). 28. In the vast majority of cases raising impartiality issues the Court has focused on the objective test (see Micallef, cited above, § 95). However, there is no watertight division between subjective and objective impartiality since the conduct of a judge may not only prompt objectively held misgivings as to impartiality from the point of view of the external observer (objective test) but may also go to the issue of his or her personal conviction (subjective test) (see Kyprianou, cited above, § 119). Thus, in some cases where it may be difficult to procure evidence with which to rebut the presumption of the judge’s subjective impartiality, the requirement of objective impartiality provides a further important guarantee (see Pullar v. the United Kingdom, 10 June 1996, § 32, Reports of Judgments and Decisions 1996‑III, and Morice, cited above, § 75). 29. As to the objective test, it must be determined whether, quite apart from the judge’s conduct, there are ascertainable facts which may raise doubts as to his or her impartiality. This implies that, in deciding whether in a given case there is a legitimate reason to fear that a particular judge or a body sitting as a bench lacks impartiality, the standpoint of the person concerned is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see Micallef, cited above, § 96). 30. The objective test mostly concerns hierarchical or other links between the judge and other protagonists in the proceedings. It must therefore be decided in each individual case whether the relationship in question is of such a nature and degree as to indicate a lack of impartiality on the part of the tribunal (see Morice, cited above, § 77). 31. In this connection even appearances may be of a certain importance or, in other words, “justice must not only be done, it must also be seen to be done” (see De Cubber, cited above, § 26). What is at stake is the confidence which the courts in a democratic society must inspire in the public. Thus, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw (see Castillo Algar v. Spain, 28 October 1998, § 45, Reports 1998-VIII; Micallef, cited above, § 98; and Morice, cited above, § 78). 32. Moreover, in order that the courts may inspire in the public the confidence which is indispensable, account must also be taken of questions of internal organisation (see Piersack v. Belgium, 1 October 1982, § 30 (d), Series A no. 53). The existence of national procedures for ensuring impartiality, namely rules regulating the withdrawal of judges, is a relevant factor. 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 of such concerns (see Zahirović v. Croatia, no. 58590/11, § 35, 25 April 2013). In addition to ensuring the absence of actual bias, they are directed at removing any appearance of partiality and so serve to promote the confidence which the courts in a democratic society must inspire in the public. The Court will take such rules into account when making its own assessment as to whether a tribunal was impartial and, in particular, whether the applicant’s fears can be held to be objectively justified (see Micallef, cited above, § 99). 33. Lastly, the Court finds it important to reiterate that the right to be tried by an impartial tribunal is of essential importance, and that the exercise of that right cannot depend on the parties alone (see Pfeifer and Plankl v. Austria, no. 10802/84, § 38, 25 January 1992, and Mamić and Others v. Croatia (dec.), nos. 21714/22 and 2 others, § 128, 9 July 2024). Judges should maintain and enforce high standards of conduct and should personally observe those standards so as to maintain the integrity of the judiciary. Any breach of such standards diminishes the public confidence which the courts in a democratic society must inspire in the public (see Morice, cited above, § 78, and Škrlj v. Croatia, no. 32953/13, § 43, 11 July 2019). Application of these principles to the present case
34. The Court notes that the applicant did not adduce any argument to call into question the personal impartiality of Judge R.M. The case must therefore be examined from the perspective of objective impartiality. More specifically, the Court must address the question whether the applicant’s doubts as to the impartiality of the Constitutional Court panel deciding on his constitutional complaint – doubts which stemmed from the specific circumstances regarding Judge R.M. – may be regarded as objectively justified. 35. The Court observes in this respect that the circumstances cited by the applicant concerned links between Judge R.M. and lawyers from the law firm representing the applicant’s co‑defendants in the proceedings (S.F. and the M. company). In particular, upon R.M.’s appointment as a judge to the Constitutional Court, those lawyers had taken over representation in cases (unrelated to the proceedings in question) in which R.M. had been lead counsel. Furthermore, R.M.’s son had been employed at that law firm. 36. The Court notes that it is unclear from the parties’ submissions whether S.F. was indeed represented by a lawyer from the law firm in question, and if so, at which point. Be that as it may, it is undisputed that, in the criminal proceedings in issue, the M. company was represented by T.G., a lawyer from that law firm. 37. The Court reiterates that, while an automatic disqualification of all judges at national level who have blood ties with the employees of legal offices representing the parties in given proceedings is not always called for (see Ramljak v. Croatia, no. 5856/13, § 29, 27 June 2017), the nature of those personal links is of importance when determining whether an applicant’s fears were objectively justified (see Mitrov v. the former Yugoslav Republic of Macedonia, no. 45959/09, § 54, 2 June 2016, and Ramljak, cited above, § 31). The Court has made clear that where there is a legitimate reason to fear that a judge lacks impartiality, then that judge must withdraw (see Ramljak, cited above, § 31). 38. In that connection, the Court firstly notes the close personal link between Judge R.M. and his son. There is nothing in the case file to indicate that Judge R.M. was not aware of the fact that his son was employed at the law firm representing one of the defendants in the proceedings at issue. However, nothing in the file shows that he informed the President of the Constitutional Court of those circumstances, as he should have done pursuant to Article 33 of the Code of Criminal Procedure, which was to be applied mutatis mutandis as an ancillary rule in the proceedings before the Constitutional Court (see paragraphs 12-15 above, and Mežnarić v. Croatia, no. 71615/01, §§ 21 and 28, 15 July 2005). Nor does it appear that he attempted to recuse himself from the case, as Judges I.A.M. and M.Š. had done (see paragraph 10 above). 39. As to the involvement of Judge R.M.’s son, the Court accepts the Government’s argument that he could not, either personally or as a replacement, have represented the M. company at any stage of the impugned criminal proceedings, since he was a trainee lawyer who had not yet passed the bar examination. However, while the exact period of his employment at the law firm remains unclear, it is apparent from the parties’ submissions that it overlapped with those proceedings (see paragraph 11 above, and compare Ramljak, cited above, § 35). In his position as a trainee lawyer, R.M.’s son was subordinate to T.G., who was a principal lawyer and partner at the law firm, and he was thus dependent on T.G. and the law firm for employment and good references (compare Ramljak, cited above, § 37). 40. The Court further notes that the Constitutional Court sat as a panel of six judges in the applicant’s case and that Judge R.M. was the acting president of that panel and, according to the Government, the judge acting as rapporteur in the case (see paragraph 10 above). Thus, while it is not possible to ascertain the exact influence of Judge R.M. on the outcome of the proceedings before the Constitutional Court since that court reached its decision in closed session, the situation could raise questions as to the court’s impartiality (compare Morice, cited above, § 89). The Court also notes that there was no indication of any practical difficulties in finding a substitute for Judge R.M. among the remaining five judges of the Constitutional Court (compare Golubović v. Croatia, no. 43947/10, § 58, 27 November 2012). 41. In view of the above, and given the importance of appearances in cases of this kind (see Drago Tadić v. Croatia, no. 25551/18, § 60, 28 November 2023, and the case-law cited therein), the Court considers that the impartiality of the Constitutional Court could have been open to genuine doubt on account of Judge R.M.’s son having been in a position of dependence and subordination to a lawyer representing the M. company – that is, one of the applicant’s co-defendants in the criminal proceedings complained of (compare Ramljak, cited above, § 38). This conclusion is reinforced by the fact that after R.M. became a judge at the Constitutional Court, the law firm representing the applicant’s co‑defendant “took over” his law office and the representation in the majority of cases in which he had been lead counsel (see paragraph 11 above). 42. In this connection, the Court is not convinced by the Government’s argument that the existence of the link in question could also be interpreted as indicating that Judge R.M. had been “favourably inclined towards” all the defendants. Firstly, domestic law takes into account the fact that co‑defendants in joint criminal proceedings may have opposing defence interests, in which case, pursuant to Article 69 of the Code of Criminal Procedure, they may not be represented by the same defence lawyer (see paragraph 15 above). Secondly, the Government did not rely on any specific circumstance indicating that the interests of the applicant in the present case might have converged with those of the M. company, nor is the Court able to discern any such circumstance on its own. In that connection, it notes that the M. company pleaded guilty whereas the applicant denied the charges against him (see paragraph 7 above). Be that as it may, what is decisive in the present case is the fact that the applicant’s doubts as to the impartiality of Judge R.M. could be held to be objectively justified. 43. The foregoing considerations are sufficient to enable the Court to conclude that the composition of the Constitutional Court was not such as to guarantee its impartiality and that it failed to meet the Convention standard under the objective test. 44. APPLICATION OF ARTICLE 41 OF THE CONVENTION
45.

Outcome for Article 41: violation