SECOND SECTION
CASE OF KALČIĆEK v. CROATIA
(Application no. 22458/18)
 
 
 
 
 
 
JUDGMENT
 
STRASBOURG
25 June 2024
 
This judgment is final but it may be subject to editorial revision. In the case of Kalčićek v. Croatia,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
 Lorraine Schembri Orland, President,
 Frédéric Krenc,
 Davor Derenčinović, judges,
and Dorothee von Arnim, Deputy Section Registrar,
Having regard to:
the application (no. 22458/18) 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 4 May 2018 by a Croatian national, Ms Štefica Kalčićek (“the applicant”), who was born in 1946 and lived in Zaprešić and who was represented by Mr K. Čurin, a lawyer practising in Zagreb;
the decision to give notice of the complaint concerning the lack of impartiality to the Croatian Government (“the Government”), represented by their Agent, Ms Š. Stažnik, and to declare the remainder of the application inadmissible;
the parties’ observations;
Having deliberated in private on 4 June 2024,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The case concerns the alleged lack of impartiality of the Constitutional Court in the criminal proceedings against the applicant. 2. By a judgment of 14 September 2011, the first-instance court acquitted the applicant of charges of aiding her son, Mr Nenad Kalčićek, in the commission of the criminal offences of abuse of office and official authority and of tampering with evidence. Her son, who was a co-accused in the proceedings in question, was also acquitted. 3. Following an appeal by the State Attorney, by a decision of 9 July 2013, the Supreme Court quashed the first-instance judgment for incomplete facts and remitted the case for fresh examination. In particular, it held that the arguments which the applicant had put forward in her defence were illogical and not supported by evidence. Judge B.B. was one of the three members of the panel deciding the appeal. 4. In the resumed proceedings, the applicant and her son were found guilty as charged by a judgment of the Zagreb Municipal Criminal Court of 22 January 2015. By a decision of 22 September 2015, the Zagreb County Court quashed that judgment and, once again, remitted the case for fresh examination. 5. On 22 April 2016 the Novi Zagreb Municipal Court found the applicant and her son guilty as charged, sentenced her to nine months’ imprisonment, suspended for two years, and ordered that the proceeds of the crime be confiscated from her. In particular, it found the applicant’s defence unconvincing, relying, inter alia, on the circumstances previously pointed out by the Supreme Court (see paragraph 3 above). By a judgment of 9 May 2017, the Zagreb County Court upheld the first-instance judgment. 6. The applicant then lodged a constitutional complaint challenging, inter alia, the domestic courts’ findings as to the credibility of her defence. By a decision of 29 November 2017, served on the applicant’s representative on 12 December 2017, the Constitutional Court examined her constitutional complaint on the merits, but formally declared it inadmissible finding that the case did not raise a constitutional issue. It had done so in a panel composed of three judges, one of whom was Judge B.B. 7. Before the Court the applicant complained, relying on Article 6 § 1 of the Convention, about the lack of impartiality of the Constitutional Court in the criminal proceedings against her. In particular, she complained that Judge B.B., who had been one of the judges who had declared inadmissible her constitutional complaint, had previously been a member of the second‑instance panel which had overturned the judgment on her acquittal (see paragraph 3 above). 8. By a letter of 16 July 2019, the Government informed the Court that the applicant had died on 8 September 2018 and proposed that the application be struck out of the Court’s list of cases. In response, the applicant’s representative notified the Court on 14 August 2019 that the applicant’s son (see paragraph 2 above), who had been declared her sole heir, wished to pursue the application in his late mother’s stead. The applicant’s representative also submitted an authority form whereby the applicant’s son had authorised the applicant’s representative to represent him before the Court.

Outcome for Article 6: violation