Application no. 50546/14
Marija VUKELIĆ and Ante VUKELIĆ
The European Court of Human Rights (First Section), sitting on 17 September 2019 as a Committee composed of:
Tim Eicke, President,
Raffaele Sabato, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 10 July 2014,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
1. The applicants, MrsMarijaVukelić and Mr Ante Vukelić, are Croatian nationals who were born in 1959 and live in KraljevecnaSutli. They were represented before the Court by Mrs K. StarčevićPavelka, a lawyer practising in Zagreb.
2. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. In 1987 the applicants brought a civil action against J.Č. in the Klanjec Municipal Court (Općinskisud u Klanjcu), seeking the establishment of the existence of the testament of the late I.K.. The defendant in that case, J.Č., brought a counter-action against the applicants in the same court seeking to have late I.K.’s will declared null and void.
5. After the judgment establishing the existence of late I.K.’s will became final on 21 February 2001, the single judge of the Klanjec Municipal Court, I.S., ruled in favour of J.Č. and declared the testament null and void.
6. The applicants’ lawyer lodged an appeal on 1 March 2004 and the file was sent to the Zlatar County Court (Županijskisud u Zlataru) for a decision on 16 March 2004.
7. On 30 June 2004 the applicants lodged a supplement to their appeal directly with the County Court, stating that they had meanwhile learned that Judge I.S. and the counterparty, J.Č., “… were related (the children of cousins).”
8. On 28 December 2005 the Zlatar County Court dismissed the applicants’ appeal as unfounded, while declaring the supplement to the appeal to have been lodged out of time.
9. In an appeal on points of law (revizija) of 3 March 2006 the applicants complained, inter alia, that Judge I.S. was a relative of J.Č.
10. On 23 July 2013 the Supreme Court dismissed the applicants’ appeal on points of law. As regards impartiality, it found that the degree of kinship between Judge I.S. and J.Č. fell outside the statutory grounds for the disqualification of a judge (they were not collateral relatives to the fourth degree).
11. A subsequent constitutional complaint lodged by the applicants was declared inadmissible by the Constitutional Court on 17 December 2013 and was served on the applicants on 13 January 2014.
12. Meanwhile, in April 2008 the applicants instituted another set of civil proceedings against J.Č. before the Klanjec Municipal Court, seeking to be declared the owners of certain property. Those proceedings were also heard by Judge I.S.; even so, the applicants never submitted a request for his disqualification, and nor did they indicate the existence of family ties between him and the defendant.
B. Relevant domestic law
13. The relevant domestic law is set out in the judgments in the cases of Ramljakv. Croatia, no. 5856/13, §§ 13-17, 27 June 2017 andParlov-Tkalčić v. Croatia, no. 24810/06, § 26, 22 December 2009.
14. The applicants complained under Article 6 § 1 of the Convention of the lack of impartiality of Judge I.S. because he was a relative of their opponent in the civil proceedings at issue.
15. The applicants relied on Article 6 § 1 of the Convention, the relevant part of 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.”
A. The parties’ arguments
1. The Government
16. The Government submitted that the applicants had failed to make use of an available and effective domestic remedy in that they had failed to lodge a request before the conclusion of the first-instance proceedings for the disqualification of Judge I.S. Even though they had been aware that their case had been assigned to Judge I.S. and they had had ample time in which to lodge a request for his disqualification, neither they nor their lawyer had ever objected to the composition of the court; nor had they expressed any doubt in the course of the first-instance proceedings as to Judge I.S.’s impartiality until the conclusion of the main hearing.
17. The Government argued that there had been no grounds under section 71(3) of the Civil Procedure Act for Judge I.S.’s disqualification since he was not a collateral relative of the counterparty to the fourth degree. Moreover, there had been no other circumstances that could have cast doubt on his impartiality under section 71(7) of the Civil Procedure Act, as the judge himself had stated that he had not been aware of his kinship with the counterparty, and norhad he ever had any personal contact with her.
18. The Government lastly noted that the applicants had not expressed any doubts as to the impartiality of Judge I.S. several years later, when he had again been assigned to hear another case between the same parties.
2. The applicants
19. The applicants argued that by the time they had found out about the kinship between Judge I.S. and their counterparty, they had no longer been able to lodge a request for his disqualification because the relevant time-limit – as provided in section 73(6) of the Civil Procedure Act – had expired. They had raised this issue before domestic courts as soon as they had learned of what they believed to be grounds for the judge’s disqualification. Moreover, Judge I.S., as a relative of the defendant, ought to have recused himself.
20. The applicants argued that the Klanjec Municipal Court was a small court with only two judges – namely Judge I.S. and that court’s president – who decided on requests for the disqualification of judges. Consequently, the applicants deemed that the latter would also not have been impartial if their case had been assigned to him.
B. The Court’s assessment
21. The Court considers that it is not necessary to address the Government’s non-exhaustion objection, given that this complaint is in any event inadmissible for the following reasons.
22. The relevant Convention principles concerning the impartiality of tribunals were summarised in Morice v. France [GC], no. 29369/10, §§ 73‑78, 23 April 2015, and restated in Ramljakv. Croatia, citedabove, § 26.
23. The Court observes at the outset that no evidence has been produced in the present case to indicate any personal bias on the part of Judge I.S. in the applicants’ case. The Court’s task is therefore to assess whether the applicants’ doubts as to Judge I.S.’s impartiality may be regarded as objectively justified.
24. The applicants’ main argument was that they had informed the domestic courts of the grounds for Judge I.S.’s disqualification as soon as they had learned of it. However, they did not provide any details before the domestic courts or before this Court by way of explaining how they had learned of the relevant fact or why they had done so only at such a late stage in the proceedings. Bearing in mind that the proceedings in question were lengthy and conducted before a small court in a small community, the Court considers that either the applicants should have known about the kinship between Judge I.S. and the defendant much earlier or (indeed, as the Government suggested) they were such distant relatives that the judge himself had not been aware of it.
25. The Court furthermore notes that the applicants did not offer ascertainable facts as to the nature or the degree of kinship between Judge I.S. and the defendant or point to any other circumstances that would have cast doubt on his impartiality. Nevertheless, even assuming that they were indeed the children of two cousins, the Court deems that this degree of kinship, in the absence of any other indication of bias, is too remote to raise in and of itself any doubt as regards Judge I.S.’s impartiality.
26. In this connection, the Court observes that the relevant provision of the domestic law, namely section 71(3) of the Civil Procedure Act, does not list such a remote degree of kinship as a reason for the automatic exclusion of a judge from a case. Moreover, this was the conclusion of the Supreme Court when reviewing and dismissing the applicant’s grievance concerning Judge I.S.’s alleged impartiality (see paragraph 10 above).
27. The Court furthermore attaches a certain weight to the fact that the applicants did not express any doubts as to Judge I.S.’s impartiality several years later, when he was again the trial judge in another set of proceeding between them and the same defendant (see paragraph 12 above). The Court finds unpersuasive the applicants’ argument that they could not have asked for the disqualification of Judge I.S. in the subsequent proceedings owing to the low number of judges at the Klanjec Municipal Court (see paragraph 20 above). There is no indication that another judge of that court would have been biased against the applicant, but in any event, if they had strongly believed so, they could have requested that jurisdiction be transferred to another court (svrsishodnadelegacija) (see paragraph 13 above).
28. Accordingly, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on10 October 2019.
Renata Degener Tim Eicke
Deputy Registrar President