EHRM, 27-09-2011, nr. 23272/07

Meanwhile, on 30 June 2002 the applicant's neighbour Mrs I.Š.-H. filed a criminal complaint against him with the police authorities in Dubrovnik. She alleged that on 29 June 2002 the applicant had demolished a separating wall erected between their backyards by her husband and broken one of the windows of her house. In her statement of 13 January 2003, Mrs I.Š.-H. added that during the incident of 29 June 2002 the applicant had also shouted that she and her family should come out so that he could kill them.

On 12 December 2003 the Metković Municipal State Attorney's Office (Općinsko državno odvjetništvo u Metkoviću) indicted the applicant before the Dubrovnik Municipal Court (Općinski sud u Dubrovniku) accusing him of the criminal offences of uttering threats and damaging another's property, and invited the court to issue a penal order in accordance with section 446 of the Criminal Procedure Act (see paragraph 21 below).

On 18 December 2003 a single judge of the Dubrovnik Municipal Court issued a penal order (kazneni nalog) against the applicant under section 446 of the Criminal Procedure Act, finding him guilty as charged and imposing a prison sentence of two months, suspended for two years. The applicant was not informed of, and did not participate in, those proceedings. The order was served on the applicant on 3 January 2004.

On 9 January 2004 the applicant lodged an objection (prigovor) against the penal order arguing that he had not committed the criminal offences for which he had been convicted, and that he had not been given an opportunity to defend himself and present evidence.

On 8 May 2006 the Dubrovnik Municipal Court set aside its penal order of 18 December 2003 and dropped the charges against the applicant under section 353 of the Criminal Procedure Act without any further explanation.

Meanwhile, by a decision of 17 March 2004 the Government of Croatia removed the applicant from his position as Head of the Dubrovnik-Neretva County State Administration Office on the grounds that he had been found guilty of a criminal offence by the judgment of the Dubrovnik Municipal Court of 18 December 2003. The decision reads as follows:

DECISION

The operative part of the decision was published in the Official Gazette of the Republic of Croatia no. 36/2004 of 22 March 2004.

On 18 March 2004 the daily newspaper Slobodna Dalmacija reporting from the Government's meeting of 17 March 2004, reported on the applicant's removal from office. A small article entitled ‘Removals and appointments [Razrješenja i imenovanja]’ in its relevant part read as follows:

On 31 March 2004 the same daily published an article entitled ‘Removed because of a non-existent ‘judgment’ [Smijenjen zbog nepostojeće presude]?’, which described the circumstances surrounding the applicant's removal from office and gave him the opportunity to present his view.

On 20 April 2004 the applicant brought an administrative action in Administrative Court against the Government of Croatia challenging the decision on his removal.

On 24 June 2004 the Government of Croatia submitted their reply to the applicant's action. That reply was not forwarded to the applicant. The relevant part of the Government of Croatia's reply read as follows:

On 15 September 2004 the Administrative Court dismissed the applicant's action finding that the contested decision of 17 March 2004 had been based on section 30(4) of the Government of Croatia Act (see paragraph 23 below) and section 52(3) of the State Administration System Act (see paragraph 22 below). The relevant part of the Administrative Court judgment reads as follows:

On 15 January 2005 the applicant lodged a constitutional complaint against the Administrative Court's judgment alleging violations of, inter alia, his constitutional rights to a fair hearing, presumption of innocence, and respect for his dignity, reputation and honour. He argued that he had been removed from office on the basis of a non-final conviction secured in criminal proceedings of which he had not been aware and in which he had not had the opportunity to participate.

On 12 October 2006 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant's complaint and served its decision on him on 29 November 2006. The relevant part of that decision reads as follows:

Section 428a

The Government averred that the proceedings had been fair. The applicant had been granted access to court as his case had been examined by both the Administrative Court and the Constitutional Court, which were both independent and impartial courts established by law. The Administrative Court had conducted the proceedings within a reasonable time and in accordance with the relevant procedural law. That court had addressed all the arguments presented by both the applicant and the Government of Croatia, and rendered a reasoned judgment based on the legislation in force. In particular, the Government argued that the principle of equality of arms had also been respected in the applicant's case and that he had had the opportunity to present his arguments to the Administrative Court under the same conditions as the opposing party.

The applicant maintained his position that he had not had an opportunity to respond to the arguments raised in the Government of Croatia's reply to his administrative action as that reply had never been served on him.

The Court reiterates that the principle of equality of arms, which is one of the elements of the broader concept of a fair hearing, requires each party to be given a reasonable opportunity to present its case under conditions that do not place it at a substantial disadvantage vis-à-vis its opponent (see, among many other authorities, Dombo Beheer B.V. v. the Netherlands, 27 October 1993, § 33, Series A no. 274, and Ankerl v. Switzerland, 23 October 1996, § 38, Reports of Judgments and Decisions 1996-V). Each party must be given the opportunity to have knowledge of and comment on the observations filed or evidence adduced by the other party (see, for example, Ruiz-Mateos v. Spain, 23 June 1993, § 63, Series A no. 262, and Wynen v. Belgium, no. 32576/96, § 32, ECHR 2002-VIII).

Turning to the present case, the Court first notes that on 24 June 2004 the Government of Croatia, being the opposing party (the defendant) in the administrative proceedings at issue, submitted a reply to the applicant's action in the Administrative Court of 20 April 2004, requesting that the action be dismissed (see paragraph 16 above). It is not contested that this reply was not forwarded to the applicant and that he had no opportunity to comment on it.

The Government of Croatia's reply contained a reasoned opinion on the merits of the applicant's action. The Court has repeatedly held that in such a situation the effect which the observations actually had on the judgment is of little consequence (see Steck-Risch and Others v. Liechtenstein, no. 63151/00, § 57, 19 May 2005) because it is for the parties to a dispute to state whether or not a document calls for their comments (see Ziegler v. Switzerland, no. 33499/96, § 38, 21 February 2002). What is particularly at stake here is the litigants' confidence in the workings of justice, which is based on, inter alia, the knowledge that they have had the opportunity to express their views on every document in the file (see, for example, Ziegler, cited above).

What is more, the Government of Croatia did not confine themselves in their reply to restating the reasons given in the decision the applicant was contesting by his action. Rather, they advanced new arguments in support of their decision, in reply to those raised by the applicant in his action. For example, the Government of Croatia argued that they had been entitled to remove the applicant from office at their own discretion and that in doing so they had been entitled to rely on the non-final judgment convicting him of a criminal offence since the case had not concerned the termination of his employment in the civil service but his removal from office (see paragraph 16 above). The Administrative Court relied on those (new) arguments raised by the Government of Croatia in their reply and even incorporated them in its judgment of 15 September 2004 dismissing the applicant's action (see paragraph 17 above). It was therefore all the more needful to give the applicant an opportunity to comment on them if he had wished to do so.

It follows that in the present case, respect for the right to a fair hearing, guaranteed by Article 6 § 1 of the Convention, required that the applicant be given an opportunity to have knowledge of and to comment on the reply submitted by the opposing party, namely the Government of Croatia (see Steck-Risch and Others, cited above, § 58). However, the applicant was not afforded this opportunity. This deficiency was not remedied by the fact that the applicant could and did complain to the Constitutional Court, as the latter does not carry out a full review of the case (see Steck-Risch and Others, cited above, § 56).

The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see, for example, Ziegler, cited above, §§ 33–40; Steck-Risch and Others, cited above, §§ 51–59; Bartenbach v. Austria, no. 39120/03, §§ 32–34, 20 March 2008; and Schaller-Bossert v. Switzerland, no. 41718/05, §§ 39–43, 28 October 2010). Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case.

There has accordingly been a violation of Article 6 § 1 of the Convention in the instant case on account of the breach of the principle of equality of arms.

The Government submitted that, after the Dubrovnik Municipal Court had on 8 May 2006 set aside its penal order of 18 December 2003 and dropped the charges against the applicant, he could have filed a petition for the reopening of the proceedings before the Administrative Court relying on section 52 of the Administrative Disputes Act.

The applicant replied that a petition for the reopening of proceedings was an extraordinary legal remedy which he had not been obliged to exhaust.

The Court reiterates that according to its established case-law, a petition 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 Riedl-Riedenstein and Others v. Germany (dec.), no. 48662/99, 22 January 2002; Babinsky v. Slovakia (dec.), no. 35833/97, 11 January 2000; and Uskela v. Sweden, no. 10537/83, Commission decision of 10 October 1985, Decisions and Reports (DR) 44, p. 98). Even though there are exceptions to that rule (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), the Court does not find it necessary to examine whether in the present case there were any special circumstances that would justify departure from the general rule. For the Court it is sufficient to note that in its judgment of 15 September 2004 the Administrative Court held that the mere institution of criminal proceedings and existence of a non-final judgment against the applicant were sufficient to justify his removal from office. That being so, the Court does not see how the fact that the Dubrovnik Municipal Court had on 8 May 2006 set aside its penal order of 18 December 2003 and dropped the charges against the applicant, would have lead to a different outcome of the proceedings before the Administrative Court.

It follows that the Government's objection of failure to exhaust domestic remedies must be dismissed.

The Court reiterates that the presumption of innocence will be violated if a judicial decision or a statement by a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law. It suffices, even in the absence of any formal finding, that there is some reasoning suggesting that the court or the official regards the accused as guilty (see, for example, Böhmer v. Germany, no. 37568/97, § 54, 3 October 2002). A fundamental distinction must be made between a statement that someone is merely suspected of having committed a crime and a clear declaration, in the absence of a final conviction, that an individual has committed the crime in question (see, for example, Peša v. Croatia, no. 40523/08, § 141, 8 April 2010).

The Court notes at the outset that on 12 December 2003 criminal proceedings were instituted against the applicant on counts of uttering threats and damaging another's property, and that on 18 December 2003 the Dubrovnik Municipal Court issued a penal order finding him guilty as charged and imposing a suspended prison sentence (see paragraphs 8 and 9 above). It further notes that on 8 May 2006 the same court set aside its penal order, dropped the charges against the applicant and discontinued the criminal proceedings against him (see paragraph 11 above). Therefore, for the purposes of Article 6 the applicant was charged with a criminal offence, which warrants the application of that provision in respect of those criminal proceedings.

The Court further reiterates that the scope of Article 6 § 2 is not limited to pending criminal proceedings, but may extend to judicial decisions taken after the discontinuation of such proceedings or following an acquittal, in so far as the issues raised in these cases are a consequence of and concomitant to the criminal proceedings concerned, in which the applicant was the ‘accused’ (see Moullet v. France (no. 2) (dec.), no. 27521/04, ECHR 2007-X, and the cases cited therein). The scope of Article 6 § 2 thus also extends to various administrative proceedings conducted simultaneously with the criminal proceedings against an applicant or after the conclusion of criminal proceedings ending without a decision finding the accused guilty in so far as there are such links between the criminal proceedings and the parallel administrative proceedings as to justify extending the scope of Article 6 § 2 to cover the latter (see Vassilios Stavropoulos v. Greece, no. 35522/04, 27 September 2007; Paraponiaris v. Greece, no. 42132/06, 25 September 2008, and Çelik (Bozkurt) v. Turkey, no. 34388/05, 12 April 2011).

The Court considers that in the present case the reliance of the domestic authorities in the above administrative proceedings on the pending criminal proceedings against the applicant and his non-final conviction as reasons justifying his removal from office created a ‘link’ between the criminal and the administrative proceedings, which justifies the extension of the scope of Article 6 § 2 to cover the latter (see, mutatis mutandis, Çelik (Bozkurt), cited above, § 34).

The further issue to be determined in the present case is whether in the above administrative proceedings the domestic authorities, by their conduct, the reasons given for their decisions or the language used in their reasoning, cast doubt on the applicant's innocence and thus undermined the principle of the presumption of innocence, as guaranteed by Article 6 § 2 of the Convention (see Vassilios Stavropoulos, cited above, § 37). The Court reiterates that one of the functions of Article 6 § 2 is to protect an acquitted person's reputation from statements or acts that follow an acquittal which would seem to undermine it (see Taliadorou and Stylianou v. Cyprus, nos. 39627/05 and 39631/05, § 26, 16 October 2008).

In this connection the Court notes that both the Government of Croatia and the Administrative Court justified the applicant's removal from office by arguing that the mere institution of criminal proceedings and the existence of a non-final conviction for a criminal offence could be viewed negatively in the eyes of the public and thus damage the probity of the civil service in general (see paragraphs 12, 16 and 17 above). The Court considers that there is nothing in the language used that would call his innocence into question. Neither the decision of 17 March 2004 nor the judgment of 15 September 2004 states or implies that the applicant was criminally liable for the offences with which he had been charged in the above criminal proceedings. Therefore, in the absence of any express or implied indication which could undermine the applicant's innocence, there is nothing to suggest that the decisions of the domestic authorities in the present case reflect the opinion that the applicant was guilty of those offences or of any other criminal offence.

It follows that this complaint is inadmissible under Article 35 § 3 (a) of the Convention as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 thereof.

The Government argued that the right to work and employment, let alone the right to hold a certain office, were not rights covered by Article 8 of the Convention. Nor did the Convention provide for the right to employment in the civil service.

The applicant did not comment on this issue.

The Court reiterates that ‘private life’ is a broad term not susceptible to exhaustive definition (see Niemietz v. Germany, 16 December 1992, § 29, Series A no. 251-B), and that individuals' right to reputation is an element of their ‘private life’ protected under Article 8 of the Convention (see, for example, Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004-VI; Pfeifer v. Austria, no. 12556/03, § 38, ECHR 2007-XII; and Petrina v. Romania, no. 78060/01, § 28, 14 October 2008).

For the Court, there is no doubt that, even if an accused person is acquitted, the fact of standing trial itself has serious implications for the accused and may cause damage to his or her reputation.

Furthermore, the Court has previously held that an administrative dismissal may, in certain circumstances (for example, in situations where the applicant was never convicted of the commission of the offences in relation to which he was dismissed), constitute an interference with the rights guaranteed by Article 8 of the Convention when it affects the enjoyment of an individual's ‘private life’ by effectively prejudicing his or her moral and psychological integrity and reputation (see Kyriakides v. Cyprus, no. 39058/05, § 52, 16 October 2008, and Taliadorou and Stylianou, cited above, § 56).

However, the Court also reiterates that in order for Article 8 to come into play, the attack on personal honour and reputation must attain a certain level of gravity and in a manner causing prejudice to personal enjoyment of the right to respect for private life (see A. v. Norway, no. 28070/06, § 64, 9 April 2009).

Nevertheless, the Court considers that in the present case it may leave open the issue whether the damage to the applicant's reputation, caused by the fact that the decision on his removal from office referred to his prior non-final conviction, was of such a gravity to bring Article 8 into play. This is so because this complaint is in any event inadmissible for the reasons set out below.

Even assuming that in the present case the applicant's removal from office on account of his non-final conviction harmed his reputation to such a degree that it constituted an interference with his right to respect for his private life, the Court considers that this interference was prescribed by law as it was based on section 52(3) of the State Administration System Act (see paragraph 22 above).

It further accepts that the interference in the present case pursued the legitimate aim as it intended to protect the reputation or rights of others, namely the probity of the civil service (see Pay v. the United Kingdom (dec.), no. 32792/05, 16 September 2008).

As to the proportionality of the interference, the Court agrees that persons appointed to a public office must enjoy public confidence, and that this confidence may be undermined by the mere suspicion that the person in question has committed a criminal offence. It further notes that under Croatian law the Government of Croatia have the power to appoint and remove heads of regional State administration offices at their own discretion. That being so, and given the fact that the applicant in the present case was not dismissed from, but transferred to another post within the civil service, the Court considers that his removal from his position as Head of the Dubrovnik-Neretva County State Administration Office on account of his non-final conviction of 18 December 2003 was not disproportionate to the legitimate aim pursued by that interference.

It follows that this complaint is inadmissible under Article 35 § 3 (a) of the Convention as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 thereof.