CASE OF ŠKRLJ v. CROATIA

1. The case originated in an application (no. 32953/13) 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 Matko Škrlj (“the applicant”), on 6 May 2013.
2. The applicant was represented by Mr I. Milanović, a lawyer practising in Umag. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.
3. The applicant alleged that in minor - offence proceedings against him he had not been tried by an impartial tribunal as required by Article 6 § 1 of the Convention, because a judge involved in the case had agreed, in another set of proceedings, to be removed from the case because of his animosity towards the applicant ’ s mother.
4. On 8 September 2015 notice of the application was given to the Government.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1991 and lives in Rijeka.
A. First set of minor - offence proceedings against the applicant
6. On 29 February 2012 Buzet police station ( Policijska uprava istarska, Policijska postaja Buzet ) issued a penalty notice, having found the applicant guilty of two minor road traffic offences: not stopping his vehicle in order to let a pedestrian cross at a pedestrian crossing, and not wearing a seat belt, offences proscribed by sections 134(4) and 163(8) of the of the Road Traffic Safety Act ( Zakon o sigurnosti prometa na cestama, Official Gazette nos. 67/2008 and 74/2011, see paragraph 20 below).
7. The applicant challenged that penalty notice before the Pazin Minor Offences Court ( Prekršajni sud u Pazinu, Stalna Služba u Buzetu ). The case was assigned to Judge B.L.V.
8. On 13 June 2012 Judge B.L.V. issued a decision setting aside the penalty notice and ordering that summary minor-offence proceedings be conducted.
9. On the same day Judge B.L.V. summoned the applicant to a hearing scheduled for 6 July 2012. The summons, which contained a warning that the hearing could be held in the defendant ’ s absence in the event that his questioning was not necessary and relevant for lawfully and correctly deciding the case, was served on the applicant on 20 June 2012.
10. According to the applicant, on 28 June 2012 his lawyer, I.M., sent a fax to the Pazin Minor Offences Court, asking the president of that court to disqualify Judge B.L.V. from dealing with the case. The application stated that Judge B.L.V. had worked with the applicant ’ s mother, who was also a judge, and in order to remove any doubt as to Judge B .L. V. ’ s impartiality, he should be removed from the case.
11. According to the Government, such a fax was never received by the Pazin Minor Offences Court. The domestic case file does not contain any application by the applicant to disqualify Judge B.L.V. from dealing with the case.
12. Although duly summoned, neither the applicant nor his lawyer appeared before the Pazin Minor Offences Court on 6 July 2012. The competent prosecutor in the case did not appear either. Judge B.L.V. decided to hold the hearing in the absence of the parties. He found that the applicant ’ s questioning was not relevant for correctly establishing the facts of the case. He then examined a written report from the police officer who had directly observed the applicant committing the minor road traffic offences.
13. On the same day, concluding that there were no reasons to doubt the police officer ’ s written report, Judge B.L.V. found the applicant guilty of the charges listed in the penalty notice of 29 February 2012. He fined him 1,000 Croatian kunas ( HRK – approximately 130 euros (EUR) ) and ordered a term of imprisonment in default of payment.
14. As there was no possibility for the applicant to appeal to a higher court in the summary minor-offence proceedings, he lodged a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ). He submitted that Judge B.L.V. had decided his case even though he had asked for the judge to be disqualified. He further submitted that he had also asked for Judge B.L.V. ’ s removal in another set of minor-offence proceedings before the same court, and on that occasion the judge had accepted to recuse himself, citing animosity between himself and the applicant ’ s mother (see paragraph 18 below). Pursuant to section 104(3) of the Minor Offences Act ( Prekršajni zakon, Official Gazette no. 107/2007, see paragraph 21 below), Judge B.L.V. should therefore have immediately informed the president of the court that there were circumstances justifying his recusal. As Judge B.L.V. had failed to do so, the applicant had not been tried by an impartial court.
15. On 17 October 2012 the Constitutional Court declared the applicant ’ s constitutional complaint inadmissible as manifestly ill-founded. That decision was served on the applicant on 9 November 2012.
16. Upon request of the Government Agent, on 22 October 2015 the Registry of the Constitutional Court confirmed that the Pazin Minor Offences Court ’ s case file did not contain the applicant ’ s application for Judge B.L.V. to be disqualified from dealing with the case.
B. Second set of minor - offence proceedings against the applicant
17. On 6 June 2012, in another set of minor - offence proceedings against the applicant before the Pazin Minor Offences Court, the applicant requested, through his lawyer, I.M., that Judge B.L.V. be disqualified from dealing with the case. In his application, he stated that Judge B.L.V. had worked with his mother, who was also a judge, and in order to remove any doubt as to Judge B. L. V. ’ s impartiality, he should be removed from the case.
18. After learning of the application for his disqualification, Judge B.L.V. discontinued all activity on the case and proposed that the application be accepted. In a statement to the President of the Pazin Minor Offences Court, he said that he had been in continuous conflict with the applicant ’ s mother, who had been president of the court where he had worked, and that they did not communicate with each other.
19. On 14 June 2012 the President of the Pazin Minor Offences Court disqualified Judge B.L.V. from dealing with the case, finding that there were circumstances which called his impartiality into doubt. That decision was served on the applicant on 23 June 2012.
20. The relevant provisions of the Road Traffic Safety Act read:
“(1) If traffic at a marked pedestrian crossing is not controlled by traffic lights or by an authorised person, a driver is obliged to approach the pedestrian crossing at a speed which does not jeopardise pedestrians, so that he or she may stop his or her vehicle and let pedestrians who have already stepped onto the pedestrian crossing pass.
(4) Drivers who do not comply with subsections 1 and 2 of this section shall be fined HRK 500 for a minor offence.
“ (1) When travelling in a motor vehicle in seats installed with safety belts, drivers and passengers are obliged to use the seat belt [s] in the way designated by the seat belt manufacturer.
(8) Drivers and other persons who do not comply with the provisions in this section shall be fined HRK 500 for a minor offence.”
21. The relevant provisions of the Minor Offences Act, as in force at the time, provided:
DISQUALIFICATIONExclusion and recusal
“(1) A judge shall be excluded from a case:
1. if he or she has been injured by the minor offence [in question];
2. if he or she is the spouse, a relative by blood – either lineal, descending or ascending in any degree, or collateral [sharing the same ancestor] to the fourth degree – or related by affinity to the second degree to the defendant, his or her counsel, the prosecutor, the injured person, their legal guardian or legal representative, or the representative of a legal person;
3. if he or she is a legal guardian, ward, adoptive parent or adopted child, foster parent or foster child to the defendant, his or her counsel, the defendant ’ s spouse, the prosecutor, the injured person or the representative of a legal person;
4. if he or she has conducted the first-instance proceedings in the same case or has taken part in the first-instance proceedings as a decision - maker, prosecutor, defence counsel, legal guardian or legal representative of the injured person or the prosecutor, or if he or she has testified as a witness or as an expert witness, or has taken part in the inspection or other operation on whose basis the minor offence proceedings were initiated.
(2) A judge may be removed from a particular case if it has been argued and proved that there are circumstances other than those listed in the previous subsection which call his or her impartiality into doubt.
(3) A judge, as soon as he or she discovers grounds for [his or her] exclusion as referred to in subsection 1, or circumstances that justify his or her removal ( subsection 2), shall immediately inform the president of the court, who shall appoint a substitute judge. ...
(4) When a judge learns that an application for his or her removal has been lodged, he or she shall immediately discontinue all activity on the case, and in the event of a removal referred to in subsection 2, he or she may, before the ruling on the application, carry out only those procedural actions where there is a risk of delay.”
Parties ’ application for disqualificationSection 105
“(1) Parties may ask for the disqualification of a judge.
(2) Parties may lodge their application for disqualification up until the start of proceedings ..., and if they learn of a reason for the judge ’ s exclusion ( section 104, subsection 1) at a later stage, they shall submit their application immediately after learning of that reason.
Requirements for holding a hearingSection 167 (3)
“ A hearing can be held and a judgment can be rendered if parties and other persons participating in proceedings, although duly summoned, do not appear. The hearing can be held in the defendant ’ s absence if his or her questioning is not necessary and relevant for lawfully and correctly rendering the judgment. ”
“By means of a judgment, a charge against a defendant is dismissed, or the defendant is acquitted or found guilty.”
22. The other relevant provisions of the Minor Offences Act are set out in the case of Marčan v. Croatia ( no. 40820/12, §§ 21-22, 10 July 2014).
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
23. The applicant complained that, owing to Judge B.L.V. ’ s involvement in the minor - offence proceedings against him, he had not been tried by an impartial tribunal. He relied on Article 6 § 1 of the Convention, the relevant part of which reads:
“ In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an ... impartial tribunal ...”
24. The Government argued that the applicant had failed to exhaust the available and effective domestic remedies, in that, in the proceedings complained of, although early on he had been made aware of the fact that his case had been assigned to Judge B.L.V., he had never sought that judge ’ s disqualification. His application of 28 June 2012, by which he had allegedly sought the disqualification of that judge, had never been received by the Pazin Minor Offences Court. This had been confirmed by the Constitutional Court, whereas the applicant had never submitted any proof to the contrary.
25. The Government further submitted that had the applicant submitted an application for disqualification, Judge B.L.V. would have adjourned the hearing and immediately informed the president of the court, just as he had done in another case against the applicant. The Government lastly noted that in the instant case there had been no grounds as set out in section 104(1) of the Minor Offences Act for Judge B.L.V. to be automatically excluded from dealing with the case.
26. The applicant submitted that he had sought Judge B.L.V. ’ s disqualification in the proceedings complained of. On 28 June 2012 his lawyer had submitted the application to the Pazin Minor Offences Court by fax. He had received confirmation of delivery of the fax and had never been informed otherwise. Judge B.L.V. had not forwarded his application to the president of the court, but had instead decided to deal with his case.
27. The applicant further contended that at the same time, in another set of minor - offence proceedings against him before the same court, Judge B.L.V. had agreed to be removed from the case, admitting that there was animosity between himself and the applicant ’ s mother. Therefore, the judge had been well aware of the circumstances justifying his recusal, and pursuant to section 1 04(3) of the Minor Offences Act, he ought to have informed the president of the court and asked to be removed from the case.
28. The Court considers that the question related to the exhaustion of domestic remedies is closely linked to the substance of the applicant ’ s complaint that he was not tried by an impartial tribunal. The Court therefore finds that the Government ’ s objection should be joined to the merits.
29. The Court notes that the applicant ’ s complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on other grounds. It must therefore be declared admissible.
30. The applicant submitted that only several days before convicting him in the minor - offence proceedings, Judge B.L.V., in another set of proceedings against him before the same court, had agreed to be removed from the case, admitting that there was animosity between himself and the applicant ’ s mother. The judge had therefore been aware of the circumstances justifying his recusal. Consequently, as soon as the judge had learned that another case against the applicant had been assigned to him, pursuant to section 1 04(3) of the Minor Offences Act, he should have informed the president of the court and asked to be removed from the case. The applicant had believed that Judge B.L.V. would do precisely that, which was why he had not appeared at the hearing of 6 July 2012.
31. The applicant contended that the fact that he had been tried by a judge who had himself admitted that there were circumstances justifying his recusal undermined the appearance of a fair trial. The Constitutional Court had not remedied the defect in question.
32. The Government submitted that in the proceedings in question the applicant, who had been represented by a lawyer, had had the benefit of all the guarantees of Article 6 of the Convention. He had had sufficient time to prepare his defence and had been afforded the opportunity to effectively participate in the proceedings. The judgment against him had been based on lawfully obtained evidence and had not been arbitrary.
33. The Government contended that the applicant had been tried by an impartial tribunal. First of all, there had been no grounds for Judge B.L.V. ’ s automatic exclusion from the case (see paragraph 21 above, section 104(1) of the Minor Offences Act). Further to this, it could not be speculated as to whether the circumstances which had justified the judge ’ s recusal in the previous case against the applicant had still existed in the proceedings complained of. According to the Government, given that Judge B.L.V. had not asked to be removed from the case, those circumstances must have ceased to exist. Moreover, unlike in the previous case where the applicant had sought Judge B.L.V ’ s disqualification, in the proceedings complained of he had not submitted such an application. This was obviously because, at the material time, the applicant himself had had no doubts regarding that judge ’ s impartiality.
34. The Government lastly submitted that the applicant had been tried in a summary procedure, where the trial judge had only assessed whether, in the light of the defendant ’ s objections, the police penalty notice could be upheld or not. In the present case, the applicant had not submitted any kind of arguments or evidence in his favour. In the objection by which he had challenged the penalty notice the applicant had merely cited the notice in question, had denied having committed the offences, and had asked the court to acquit him. He had not attended the hearing. Thus, Judge B.L.V. had not had a significant role in the proceedings and his alleged partiality had been of no relevance to the adjudication of the case. He had based his judgment on the written report of the police, the credibility of which had never been put to doubt. Lastly, the trial judge had had no opportunity to order that the applicant should receive a higher or lower fine, because the fine had been fixed by the Road Traffic Safety Act.
35. The general principles relating to the requirements of an impartial tribunal were summarised as follows in the case of Denisov v. Ukraine ( [GC], no. 76639/11, 25 September 2018 ) :
“61. As a rule, impartiality denotes the absence of prejudice or bias. According to the Court ’ s settled case-law, the existence of impartiality for the purposes of Article 6 § 1 must be determined according to ( i ) 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 (ii) an objective test, that is to say, by ascertaining whether, quite apart from the personal conduct of any of its members, the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality (see, among other authorities, Micallef v. Malta [GC], no. 17056/06, § 93, ECHR 2009, with further references).
62. However, there is no watertight division between subjective and objective impartiality, as the conduct of a judge may not only prompt objectively held misgivings as to the tribunal ’ s impartiality from the point of view of the external observer (the objective test) but may also go to the issue of the judges ’ personal conviction (the subjective test) (see Kyprianou v. Cyprus [GC], no. 73797/01, § 119, ECHR 2005 ‑ XIII). 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 1996 ‑ III).
63. In this respect, 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 ’. What is at stake is the confidence which the courts in a democratic society must inspire in the public (see Morice v. France [GC], no. 29369/10, § 78, ECHR 2015). ”
(b ) Application of these principles to the present case
36. The Court observes at the outset that the minor road traffic offences of which the applicant was convicted do not belong to the traditional categories of criminal law (see, amongst others, Marčan, cited above, § 37 ).
37. The Court reiterates that while entrusting the prosecution and punishment of minor offences to administrative authorities is not inconsistent with the Convention, the person concerned must have an opportunity to challenge any decision made against him or her before a tribunal that offers the guarantees of Article 6 (see, amongst many others, Lauko v. Slovakia, 2 September 1998, § 64, Reports of Judgments and Decisions 1998 ‑ VI).
38. The Court notes that Judge B.L.V., who conducted the minor ‑ offence proceedings against the applicant in a single-judge formation, had only several days earlier agreed to be removed from another case against the applicant for the very same reason related to his impartiality (see paragraph 17-19 above).
39. In that other case, the applicant sought Judge B.L.V. ’ s disqualification on the grounds that he had worked with his mother, who was also a judge (see paragraph 17 above). In replying to the applicant ’ s application, Judge B.L.V. accepted that he had worked with the applicant ’ s mother and, in addition, admitted that there was animosity between himself and the applicant ’ s mother, although this was not mentioned by the applicant. Specifically, Judge B.L.V. said that he had been in continuous conflict with her and that they did not communicate with each other (see paragraph 18 above).
40. Contrary to the Government ’ s above argument (see paragraph 33 ), the Court considers it unlikely that Judge B.L.V. ’ s situation could have changed only several days after he had agreed to be removed from the applicant ’ s case. Thus, when he was assigned the minor - offence proceedings complained of, Judge B.L.V. must have been aware of the circumstances justifying his withdrawal (see paragraphs 8, 17 and 18 above).
41. In the Court ’ s view, this created a situation which was capable of raising legitimate doubts as to Judge B.L.V. ’ s impartiality, doubts which were not without objective justification, and was also of such a nature as to raise an issue under the subjective test, even disclosing personal bias motivated by the judge ’ s animosity towards the applicant ’ s mother (compare Filyutkin v. Russia [Committee], no. 39234/08, §§ 37-38, 24 July 2018).
42. The present situation differs in particular from that examined by the Court in the case of Dragojević v. Croatia (application no. 68955/11, §§ 111-123, 15 January 2015), where a judge had refrained from sitting in a judicial formation as a “precautionary measure ”, without there being any particular reason to doubt his personal impartiality (§§ 120-121 in fine ).
43. The Court reiterates that 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; Morice, cited above, § 78; and Ramljak v. Croatia, no. 5856/13, § 31, 27 June 2017 ). Indeed, 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 public confidence which the courts in a democratic society must inspire in the public (see Morice, cited above, § 78).
44. The present case should be distinguished from cases in which the only issue at stake was the previous functional involvement of judges in the proceedings (see Zahirović v. Croatia, no. 58590/11, § § 31-36, 25 April 2013; Sgaibă v. Romania ( dec. ), no. 6005/05, §§ 30-38, 27 January 2015; and Smailagić v. Croatia ( dec. ), no. 77707/13, §§ 31-36, 10 November 2015 ), where the Court held that functional involvement was not in itself sufficient to give rise to a conclusion as to the lack of impartiality of the judge or court concerned. In such cases, the Court deemed that it was for the applicants to raise their arguable concerns concerning the judges ’ alleged lack of impartiality by asking for their removal from the case.
45. Turning to the particular circumstances of the present case, where the trial judge was aware of the circumstances justifying his withdrawal before the hearing leading to the applicant ’ s conviction, the Court does not find it necessary to rule on whether the applicant, as he claimed, had actually lodged an application for the judge ’ s disqualification or, as the Government seemed to suggest, no such application had apparently been made. What in this specific context the Court considers relevant is the fact that an obligation on the part of a judge sitting in a case to inform immediately the president of the court of the circumstances justifying his removal is expressly set out in the national law (see paragraph 21 above, section 104(3) of the Minor Offences Act). Consequently, it was primarily for Judge B.L.V., who was aware of the circumstances, to ask the President of the Pazin Minor Offences Court to be removed from the case.
46. Furthermore, the Court does not accept the Government ’ s argument that Judge B.L.V. did not have a significant role in the proceedings and therefore his partiality was of no relevance to the adjudication of the case (see paragraph 34 above). Indeed, regardless of the extent to which the applicant used his procedural rights to prove his defence, the Court is of the view that the very fact that he was tried by a judge who had himself admitted that there were circumstances justifying his withdrawal undermined the appearance of a fair trial.
47. Lastly, the Court notes that the Constitutional Court did not remedy the defect in question. It is certainly possible that a higher or the highest court might, in some circumstances, make reparation for defects in the proceedings before lower courts (see Ramljak, cited above, § 40). In the present case, although the Constitutional Court had the power to quash the relevant decision on the grounds that it appeared that the trial judge had not been impartial, it declined to do so and upheld the impugned judgment. As a consequence, it did not cure the failing in question (see Kyprianou v. Cyprus [GC], no. 73797/01, § 134, ECHR 2005 ‑ XIII).
48. In view of the foregoing, the Court rejects the Government ’ s objection of non-exhaustion of domestic remedies that it has previously joined to the merits (see paragraph 28 above) and finds that there has been a violation of Article 6 § 1 of the Convention as regards the requirement of an impartial tribunal.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
49. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
50. The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account.
1. Joins, unanimously, to the merits the Government ’ s objection of non ‑ exhaustion of domestic remedies and dismisses it;