FIRST SECTION
DECISION
Application no. 31383/13
Larisa SMILJAN PERVAN
against Croatia
The European Court of Human Rights (First Section), sitting on
4 March 2014 as a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Paulo Pinto de Albuquerque,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković,
Dmitry Dedov, judges,
and André Wampach, Deputy Section Registrar,
Having regard to the above application lodged on 24 April 2013,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Larisa Smiljan Pervan, is a Croatian national, who
was born in 1973 and lives in Čavle. She was represented before the Court
by Mr D. Smolić-Ročak, a lawyer practising in Rijeka.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be
summarised as follows.
3. The applicant works as a judge in the civil division of the Rijeka
Municipal Court (Općinski sud u Rijeci).
4. As a result of the internal assignment of cases at the Rijeka Municipal
Court, the applicant was assuming responsibility, as a trial judge, for cases
nos. P-878/2008 and P-114/2011. The former concerned a property action
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brought by a local municipal council against an individual, represented by a
lawyer, D.H., and the latter concerned a property dispute between two
private parties in which the same lawyer, D.H., was representing the
plaintiff.
1. Proceedings in case no. P-878/2008
5. On 4 January 2012 D.H. asked the President of the Rijeka Municipal
Court to exclude the applicant from the case. D.H. argued that in the case at
issue and several other cases in which she was acting as a lawyer, the
applicant had displayed hostility towards her. In particular, at a hearing on
3 January 2012 the applicant had told D.H.’s client that she was not doing
her job properly and in the client’s best interest.
6. On 1 March 2012 the President of the Rijeka Municipal Court, after
examining a report submitted by the applicant, accepted the request and
excluded the applicant from the case on the grounds that the requisite
objectivity in the assessment of D.H.’s particular complaints required that
the applicant be excluded from the case as the trial judge. The applicant was
informed that she could not appeal against that decision.
7. On an unspecified date in 2012 the applicant lodged an appeal with
the President of the Rijeka County Court (Županijski sud u Rijeci) against
the above-mentioned decision.
8. On 26 April 2012 the President of the Rijeka County Court declared
the applicant’s appeal inadmissible on the grounds that the decision at issue
was not susceptible to appeal under the Civil Procedure Act, nor did it
represent an administrative measure which could be challenged under the
Administrative Procedure Act. The President pointed out that the rule on the
exclusion of judges had been envisaged for the protection of the rights and
interests of parties in the proceedings, and not for the promotion of the
interests of judges. The President considered that in any event, in a situation
in which a judge insisted on sitting in a case even though one of the parties’
representatives had reported a conflict with the judge, that in itself raised an
issue as to the judge’s impartiality.
9. The applicant lodged a constitutional complaint with the
Constitutional Court (Ustavni sud Republike Hrvatske), challenging the
decision of the President of the Rijeka County Court.
10. On 3 October 2012 the Constitutional Court declared the applicant’s
constitutional complaint inadmissible on the grounds that the impugned
decision concerned neither her civil rights or obligations, nor any criminal
charge against her. The decision of the Constitutional Court was served on
the applicant’s representatives on 25 October 2012.
SMILJAN PERVAN v. CROATIA DECISION
3
2. Proceedings in case no. P-114/2011
11. On 4 January 2012 D.H. asked the President of the Rijeka Municipal
Court to exclude the applicant from the case. D.H. argued that in the case at
issue the applicant had displayed hostility towards her, accusing her of not
having sufficient legal knowledge and of failing to provide the proper legal
instructions to her clients. As a result, the clients’ respect for DH had
diminished.
12. The President of the Rijeka Municipal Court, after examining a
report submitted by the applicant, accepted the request and on 1 March 2012
excluded the applicant from the case on the grounds that the requisite
objectivity in the assessment of D.H.’s particular complaints required that
the applicant be excluded from the case as the trial judge. The President
indicated that the decision was not susceptible to appeal.
13. On an unspecified date in 2012 the applicant appealed against the
above-mentioned decision to the President of the Rijeka County Court,
arguing that there had been various substantive and procedural flaws.
14. On 26 April 2012 the President of the Rijeka County Court declared
the applicant’s appeal inadmissible, reiterating the same reasons as it had
given in case no. P-878/2008 (see paragraph 8 above).
15. The applicant then lodged an administrative action before the Rijeka
Administrative Court (Upravni sud u Rijeci) and a constitutional complaint
before the Constitutional Court. She argued that the decision of the
President of the Rijeka County Court had affected her right to the normal
performance of judicial work in the given case, as well as her professional
dignity and the possibility of attaining her objectives.
16. On 29 June 2012 the Rijeka Administrative Court declared the
applicant’s administrative action inadmissible. The relevant part of the
decision reads:
“This court considers that the impugned decision does not concern any of the
plaintiff’s rights or interests. Therefore, one of the cumulative prerequisites in order
for an issue to be considered an administrative matter has not been met. The purpose
of the rules on the exclusion of judges is to ensure objectivity in the conduct of
proceedings. Objectivity is important for the protection of the parties’ rights and
legality, not for the subjective rights and interests of judges. ...
The exclusion of a judge does not affect his or her rights under [the law on the
courts organisation].There is no right of a judge to act in a particular case because the
assignment of cases is regulated under the provisions on the organisation of the courts.
The exclusion cannot be considered as an obstacle for a judge in reaching his or her
objectives because the judge can work on other cases which have been assigned to
him or her. ...
Furthermore, this court finds that the exclusion of a judge from a case does not
affect his or her professional dignity. The provisions on exclusion ensure the
impartiality of a judge in a given case, and it is a situation which every judge may
encounter, irrespective of his or her professional qualities. Moreover, a decision on
exclusion does not concern the professional qualities of a judge.
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SMILJAN PERVAN v. CROATIA DECISION
...
Lastly, against the above background, [this court finds that] the exclusion of a judge
is not an administrative matter and thus the decision on exclusion is not an
administrative act.”
17. The applicant lodged an appeal against the above decision with the
High Administrative Court (Visoki Upravni sud Republike Hrvatske),
reiterating her previous arguments.
18. On 27 September 2012 the High Administrative Court declared the
applicant’s appeal inadmissible on the grounds that an appeal against the
decision of the Rijeka Administrative Court was not allowed under the
relevant domestic law.
19. The applicant then lodged a constitutional complaint before the
Constitutional Court, challenging the decision of the High Administrative
Court.
20. On 3 October 2012 the Constitutional Court declared the applicant’s
constitutional complaint against the decision of the President of the Rijeka
County Court (see paragraph 15 above) inadmissible on the grounds that the
impugned decision concerned neither her civil rights or obligations, nor any
criminal charge against her.
21. On 31 January 2013 the Constitutional Court, relying on the same
reasons, declared the applicant’s constitutional complaint against the
decision of the High Administrative Court (see paragraph 19 above)
inadmissible. The decision of the Constitutional Court was served on the
applicant’s representatives on 19 February 2013.
B. Relevant domestic law
1. Constitution
22. The relevant provision of the Constitution of the Republic of Croatia
(Ustav Republike Hrvatske; Official Gazette nos. 56/1990, 135/1997,
8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010)
reads as follows:
Article 29
“In the determination of his rights and obligations or of any criminal charge against
him, everyone is entitled to a fair hearing within a reasonable time by an independent
and impartial court established by law.”
2. Constitutional Court Act
23. The relevant part of the Constitutional Court Act (Ustavni zakon o
Ustavnom sudu Republike Hrvatske; Official Gazette no. 49/2002) reads as
follows:
SMILJAN PERVAN v. CROATIA DECISION
5
Section 62
“1. Anyone may lodge a constitutional complaint with the Constitutional Court if he
or she deems that the individual act of a state body, a body of local and regional selfgovernment, or a legal person with public authority, concerning his or her rights and
obligations, or a suspicion or an accusation of a criminal act, has violated his or her
human rights or fundamental freedoms or his or her right to local and regional selfgovernment guaranteed by the Constitution (hereinafter: a constitutional right) ...
2. If another legal remedy exists in respect of the violation of the constitutional right
[complained of], a constitutional complaint may be lodged only after that remedy has
been used.”
3. Civil Procedure Act
24. The relevant provisions of the Civil Procedure Act (Zakon o
parničnom postupku; Official Gazette nos. 53/1991, 91/1992, 58/1993,
112/1999, 88/2001, 117/2003, 88/2005, 2/2007, 84/2008, 123/2008, and
57/2011) provide as follows:
Section 71
“A judge ... shall be disqualified from exercising his functions:
...
7. if other circumstances exist which cast doubt on his or her impartiality.”
Section 74
“(1) The President of the court shall decide on the party’s request for the exclusion,
unless otherwise provided under the law.
...
(4) When deciding on the request for exclusion [the President of the court] shall
obtain a statement from the judge concerned and, if necessary, further information.
(5) The decision by which the request for exclusion is accepted is not susceptible to
appeal and the decision rejecting or dismissing the request is not susceptible to special
appeal.”
4. Administrative Procedure Act
25. The relevant provision of the Administrative Procedure Act (Zakon o
općem upravnom postupku; Official Gazette no. 47/2009) provide as
follows:
Section 2
“(1) An administrative matter is any issue in which a public authority in
administrative proceedings decides on the rights, obligations and legal interests of a
physical or legal person or other entities (hereinafter: the parties) by immediate
application of the law, regulations and other general decisions relevant to a particular
administrative issue.
(2) An administrative matter is also any issue which is so designated under the law.”
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SMILJAN PERVAN v. CROATIA DECISION
5. Courts Act
26. The relevant provisions of the Courts Act (Zakon o sudovima;
Official Gazette nos. 150/2005, 16/2007, 113/2008, 153/2009, 116/2010,
122/2010, 27/2011, 57/2011, and 13/2011) provide:
Duties of judges
Section 92
“(1) The conduct of a judge must be governed with due respect for his or her dignity
and the dignity of the judiciary, and must not put into question his or her professional
impartiality and independence, or the independence of the judiciary.”
Rights of judges
Section 99
“A judge has the following rights:
- adequate remuneration,
- a bonus payable when he or she is transferred to another court,
- adequate compensation, instead of a salary, when he or she is unable to perform
his or her judicial function,
- pension, disability and health insurance, and all rights pertaining thereto, in
accordance with the relevant general regulations,
- leave granted to judicial staff and annual leave of 30 working days,
- compensation for the relevant expenses as provided for under the law,
- an allowance in the event of separation from his or her family, and travel expenses
to the place of residence of his or her family at weekends and during national
holidays,
- compensation for official journeys and expenses related to his or her judicial duty,
- continuing education and specialisation training from the funds allocated for that
purpose.
(2) The amount of bonus payable to a judge transferred to another court shall be
determined by ordinance of the Minister of Justice.”
6. Rules of Courts
27. The relevant provision of the Rules of Courts (Sudski poslovnik;
Official Gazette nos. 158/2009, 3/2011, 34/2011, 100/2011, 123/2011,
138/2011, and 38/2012) provides:
Section 8
“(1) Court administration issues are all those measures required to ensure adequate
working conditions and functioning of the courts.
(2) Those are, in particular:
SMILJAN PERVAN v. CROATIA DECISION
7
...
- professional measures for guaranteeing the rights and duties of civil servants and
judges in the courts, ...”
COMPLAINTS
The applicant complained, relying on Articles 6 § 1 and 13 of the
Convention, that she had not had access to a court concerning the request
for her exclusion as a trial judge.
THE LAW
28. The applicant relied on Articles 6 § 1 and 13 of the Convention
which, in so far as relevant, read as follows:
Article 6
“1. In the determination of his civil rights and obligations or of any criminal charge
against him, everyone is entitled to a fair and public hearing within a reasonable time
by an independent and impartial tribunal established by law. ...”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated
shall have an effective remedy before a national authority notwithstanding that the
violation has been committed by persons acting in an official capacity.”
29. The applicant considered that the domestic authorities had
unlawfully and unjustifiably denied her access to a court where she could
challenge the decisions on her exclusion as a trial judge from the two sets of
civil proceedings.
30. In view of the applicant’s arguments and the Court’s constant caselaw regarding the autonomous concept of a “criminal charge” within the
meaning of Article 6 § 1 (see, for example, Jussila v. Finland [GC],
no. 73053/01, § 30, ECHR 2006-XIV), the Court notes that the applicant’s
complaints clearly do not fall within the criminal head of that provision.
31. As to the applicability of the civil limb of Article 6 of the
Convention, the Court reiterates that, in principle, the same standards
concerning the applicability of Article 6 in the employment disputes of civil
servants are relevant to the proceedings concerning judges (see Olujić
v. Croatia, no. 22330/05, §§ 32-43, 5 February 2009; Tosti v. Italy (dec.),
no. 27791/06, 12 May 2009; Juričić v. Croatia, no. 58222/09, § 51-58,
26 July 2011; Harabin v. Slovakia, no. 58688/11, §§ 118-123, 20 November
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SMILJAN PERVAN v. CROATIA DECISION
2012; and Oleksandr Volkov v. Ukraine, no. 21722/11, §§ 87-91,
ECHR 2013).
32. In order to establish whether the civil head of Article 6 is applicable
in the present case, and, consequently, whether the applicant could rely on
the guarantees of that Article, the Court must examine first whether she had
a “right” which could arguably be said to be recognised under Croatian law
and, secondly, whether that right was a “civil” one (see Vilho Eskelinen and
Others v. Finland [GC], no. 63235/00, § 40, ECHR 2007-II; and Juričić;
cited above, § 52).
33. With regard to the first question, namely whether the applicant had a
“right” which could arguably be said to be recognised under Croatian law,
the Court reiterates that for Article 6 § 1 in its “civil” limb to be applicable,
there must be a dispute (“contestation” in the French text) over a “right”
which can be said, at least on arguable grounds, to be recognised under
domestic law, irrespective of whether it is protected under the Convention.
The dispute must be genuine and serious; it may relate not only to the actual
existence of a right but also to its scope and the manner in which it is
exercised. Lastly, the result of the proceedings must be directly decisive for
the right in question, mere tenuous connections or remote consequences not
being sufficient to bring Article 6 § 1 into play (see, among other
authorities, Micallef v. Malta [GC], no. 17056/06, § 74, 15 October 2009).
34. Article 6 § 1 does not guarantee any particular content for (civil)
“rights and obligations” in the substantive law of the Contracting States: the
Court may not create, by way of interpretation of Article 6 § 1, a substantive
right which has no legal basis in the State concerned (see, for example,
Fayed v. the United Kingdom, 21 September 1994, § 65, Series A
no. 294-B, and Roche v. the United Kingdom [GC], no. 32555/96, § 119,
ECHR 2005-X). The starting point must be the provisions of the relevant
domestic law and their interpretation by the domestic courts (see Masson
and Van Zon v. the Netherlands, 28 September 1995, § 49, Series A
no. 327-A). The Court would need strong reasons to differ from the
conclusions reached by the superior national courts by finding, contrary to
their view, that there was arguably a right recognised by domestic law (see
Boulois v. Luxembourg [GC], no. 37575/04, § 92, ECHR 2012).
35. Therefore, one of the criteria which may be taken into consideration
by the Court is the recognition of the alleged right in similar circumstances
by the domestic courts or the fact that the latter examined the merits of the
applicant’s request (see Vilho Eskelinen and Others, cited above, § 41; and
Boulois, cited above, §§ 94 and 100).
36. In the case at issue, the relevant domestic law providing for the
rights and duties of judges does not include the right to be a judge in a
particular case (see paragraph 26 above). The non-existence of such a right
was explained by the President of the Rijeka County Court, who held that
for a judge to assert such a right could raise an issue as to his or her
SMILJAN PERVAN v. CROATIA DECISION
9
impartiality in the case (see paragraphs 8 and 12 above), which is one of the
judge’s duties under the relevant domestic law (see paragraph 26 above).
37. Furthermore, the Court observes that the administrative courts
declined jurisdiction to examine the applicant’s request for judicial review
of the decision of the President of the Rijeka Municipal Court to exclude her
as a trial judge from the two civil cases at issue (compare Boulois, cited
above, §§ 94 and 100; and, by contrast, Vilho Eskelinen and Others, cited
above, § 41). They explained that the decision to exclude her did not
concern any of her legal rights or interests, but had been taken in the
interests of the good administration of justice (see paragraph 16 above).
That was also confirmed by the Constitutional Court, which considered that
the decisions on the applicant’s exclusion concerned neither her civil rights
or obligations, nor any criminal charge against her (see paragraphs 10, 20
and 21 above).
38. In this context, the Court has also held that the existence of national
procedures for ensuring impartiality, namely rules regulating the withdrawal
of judges, is a relevant factor in assessing 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 for such concerns. In addition to ensuring the absence of actual
bias, they are directed at removing any appearance of partiality. They
therefore serve to promote the confidence which the courts in a democratic
society must inspire in the public (see Mežnarić v. Croatia, no. 71615/01,
§ 27, 15 July 2005).
39. Furthermore, the Court notes that under the Convention and its
Protocols there is no right to hold a particular public post related to the
administration of justice (see Dzhidzheva-Trendafilova v. Bulgaria (dec.),
no. 12628/09, § 38, 9 October 2012), and thus it considers that the right to
be a judge in a particular case cannot be asserted under the Convention or its
Protocols.
40. Against the above background, the Court does not consider that the
applicant’s claims that her exclusion as a trial judge from the two civil cases
related to a “right” recognised in Croatian law or in the Convention.
Accordingly, it concludes that Article 6 of the Convention is not applicable,
and consequently Article 13, which applies only to claims which fall within
the scope of one of the substantive provisions of the Convention or its
Protocols (see, amongst many others, Dzhidzheva-Trendafilova, cited
above, § 39), is also not applicable.
41. The Court therefore finds that the applicant’s complaints are
incompatible ratione materiae with the provisions of the Convention within
the meaning of Article 35 § 3 (a) and must be rejected in accordance with
Article 35 § 4.
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SMILJAN PERVAN v. CROATIA DECISION
For these reasons, the Court unanimously
Declares the application inadmissible.
André Wampach
Deputy Registrar
Isabelle Berro-Lefèvre
President