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passage_843::199 | The Court observes, however, that this obligation does not oblige authorities to enter into collective agreements. According to the meaning attributed by the ECSR to Article 6 § 2 of the Charter, which in fact fully applies to public officials, States which impose restrictions on collective bargaining in the public sec... | passage_843 | 199 | 95,662 | 96,165 | |
passage_843::200 | As to the European Union’s Charter of Fundamental Rights, which is one of the most recent European instruments, it provides in Article 28 that workers and employers, or their respective organisations, have, in accordance with Community law and national laws and practices, the right to negotiate and conclude collective ... | passage_843 | 200 | 96,167 | 96,530 | |
passage_843::201 | As to the practice of European States, the Court reiterates that, in the vast majority of them, the right of civil servants to bargain collectively with the authorities has been recognised, subject to various exceptions so as to exclude certain areas regarded as sensitive or certain categories of civil servants who hol... | passage_843 | 201 | 96,532 | 97,245 | |
passage_843::202 | It is also appropriate to take into account the evolution in the Turkish situation since the application was lodged. Following its ratification of ILO Convention No. 87 on Freedom of Association and Protection of the Right to Organise, Turkey amended, in 1995, Article 53 of its Constitution by inserting a paragraph pro... | passage_843 | 202 | 97,247 | 97,863 | |
passage_843::203 | 153. In the light of these developments, the Court considers that its caselaw to the effect that the right to bargain collectively and to enter into collective agreements does not constitute an inherent element of Article 11 (see Swedish Engine Drivers’ Union, cited above, § 39, and Schmidt and Dahlström, cited above,... | passage_843 | 203 | 97,865 | 98,337 | |
passage_843::204 | While it is in the interests of legal certainty, foreseeability and equality before the law that the Court should not depart, without good reason, from precedents established in previous cases, a failure by the Court to maintain a dynamic and evolutive approach would risk rendering it a bar to reform or improvement (se... | passage_843 | 204 | 98,338 | 98,713 | |
passage_843::205 | Consequently, the Court considers that, having regard to the developments in labour law, both international and national, and to the practice of Contracting States in such matters, the right to bargain collectively with the employer has, in principle, become one of the essential elements of the “right to form and to jo... | passage_843 | 205 | 98,715 | 99,282 | |
passage_843::206 | Like other workers, civil servants, except in very specific cases, should enjoy such rights, but without prejudice to the effects of any “lawful restrictions” that may have to be imposed on “members of the administration of the State” within the meaning of Article 11 § 2 – a category to which the applicants in the pres... | passage_843 | 206 | 99,283 | 99,738 | |
passage_843::207 | In the light of the foregoing principles, the Court considers that the trade union Tüm Bel Sen, already at the material time, enjoyed the right to engage in collective bargaining with the employing authority, which had moreover not disputed that fact. This right constituted one of the inherent elements of the right to ... | passage_843 | 207 | 99,740 | 100,157 | |
passage_843::208 | As to the impugned collective agreement entered into after collective bargaining, the Grand Chamber, like the Chamber, takes note of the following facts:
“In the first place, the trade union Tüm Bel Sen persuaded the employer, Gaziantep Municipal Council, to engage in collective bargaining over questions that it regar... | passage_843 | 208 | 100,159 | 100,850 | |
passage_843::209 | Moreover, the collective agreement was implemented. For a period of two years, with the exception of certain financial provisions that were in dispute between the parties, the collective agreement governed all employer-employee relations within Gaziantep Municipal Council.”
157. Accordingly, the Court observes that t... | passage_843 | 209 | 100,852 | 101,370 | |
passage_843::210 | The absence of the legislation necessary to give effect to the provisions of the international labour conventions already ratified by Turkey, and the Court of Cassation judgment of 6 December 1995 based on that absence, with the resulting de facto annulment ex tunc of the collective agreement in question, constituted i... | passage_843 | 210 | 101,371 | 101,795 | |
passage_843::211 | As to the applicants’ arguments concerning the insufficiency of the new legislation with regard to the trade-union rights of civil servants, the Court points out that the object of the present application does not extend to the fact that the new Turkish legislation fails to impose on the authorities an obligation to en... | passage_843 | 211 | 101,797 | 102,370 | |
passage_843::212 | The Court considers that the interference in question, namely the annulment ex tunc of the collective agreement that the trade union Tüm Bel Sen had entered into following collective bargaining with the authority that employed the applicants, should be regarded as having breached Article 11, unless it can be shown that... | passage_843 | 212 | 102,372 | 102,894 | |
passage_843::213 | The Government and the applicants agreed with the Chamber’s finding that the interference in question was prescribed by law. For the purposes of the present case, the Grand Chamber can accept that the interference was prescribed by law, as interpreted by the combined civil divisions of the Court of Cassation, the highe... | passage_843 | 213 | 102,896 | 103,532 | |
passage_843::214 | As to the fact that the risk of such discrepancy was the result of the time taken by the legislature to adapt the legislation to Turkey’s international commitments in the field of international labour standards, the Court considers that its assessment must likewise relate to the question whether such a measure was nece... | passage_843 | 214 | 103,533 | 104,140 | |
passage_843::215 | As to the application of these principles to the present case, the Court notes that the Government have omitted to show how the impugned restriction was necessary in a democratic society, standing by their principal argument to the effect that the applicants, in their capacity as civil servants, did not have the right ... | passage_843 | 215 | 104,142 | 104,528 | |
passage_843::216 | The Court, performing its own examination, considers that at the material time a number of elements showed that the refusal to accept that the applicants, as municipal civil servants, enjoyed the right to bargain collectively and thus to persuade the authority to enter into a collective agreement, did not correspond to... | passage_843 | 216 | 104,530 | 105,109 | |
passage_843::217 | Moreover, an examination of European practice shows that this right was recognised in the majority of member States (see paragraphs 52 and 151 above).
166. Secondly, Turkey had in 1952 ratified ILO Convention No. 98, the principal instrument protecting, internationally, the right for workers to bargain collectively a... | passage_843 | 217 | 105,110 | 105,503 | |
passage_843::218 | There is no evidence in the case file to show that the applicants’ union represented “public servants engaged in the administration of the State”, that is to say, according to the interpretation of the ILO Committee of Experts, officials whose activities are specific to the administration of the State and who qualify f... | passage_843 | 218 | 105,504 | 105,898 | |
passage_843::219 | In these circumstances, the Grand Chamber shares the following consideration of the Chamber:
“The Court cannot accept that the argument based on an omission in the law – caused by a delay on the part of the legislature – was sufficient in itself to make the annulment of a collective agreement which had been applied fo... | passage_843 | 219 | 105,900 | 106,321 | |
passage_843::220 | Moreover, the Grand Chamber observes that the Government failed to adduce evidence of any specific circumstances that could have justified the exclusion of the applicants, as municipal civil servants, from the right, inherent in their trade-union freedom, to bargain collectively in order to enter into the agreement in ... | passage_843 | 220 | 106,323 | 106,808 | |
passage_843::221 | The Court thus finds that the impugned interference, namely the annulment ex tunc of the collective agreement entered into by the applicants’ union following collective bargaining with the authority was not “necessary in a democratic society”, within the meaning of Article 11 § 2 of the Convention.
170. There has the... | passage_843 | 221 | 106,810 | 107,346 | |
passage_843::222 | The applicants argued that the restrictions imposed on their freedom to form trade unions and enter into collective agreements constituted a discriminatory distinction for the purposes of Article 14 of the Convention taken in conjunction with Article 11.
172. However, in view of its findings under Article 11, the Cou... | passage_843 | 222 | 107,348 | 107,816 | |
passage_843::223 | 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.... | passage_843 | 223 | 107,818 | 108,411 | |
passage_843::224 | He also claimed EUR 14,880 in respect of non-pecuniary damage resulting from his disappointment at being deprived of the means to assert his rights.
175. Mrs Vicdan Baykara, on behalf of the trade union that she represented and of its members, claimed compensation for non-pecuniary damage in the sum of EUR 148,810.
... | passage_843 | 224 | 108,412 | 108,736 | |
passage_843::225 | The Chamber awarded EUR 20,000 in respect of non-pecuniary damage to Mrs Vicdan Baykara, in her capacity as representative of the trade union Tüm Bel Sen, to be shared between the members of the union, together with EUR 500 to Mr Kemal Demir for all heads of damage combined.
177. The applicants requested the Grand Ch... | passage_843 | 225 | 108,738 | 109,148 | |
passage_843::226 | They submitted that there was no causal link between the pecuniary damage alleged by the two applicants and the Court of Cassation judgment in question, which concerned the legal capacity of the trade union Tüm Bel Sen. Moreover, they indicated that no documentary evidence had been adduced in support of the claims subm... | passage_843 | 226 | 109,149 | 109,735 | |
passage_843::227 | As to the claim submitted by Mr Kemal Demir in respect of pecuniary damage, the Court considers that the sum which the applicant was obliged to pay back to the State following the annulment of the relevant collective agreement must be returned to him. Admittedly, the claim is not entirely supported by documentary evide... | passage_843 | 227 | 109,737 | 110,296 | |
passage_843::228 | As to the claim submitted in respect of non-pecuniary damage by Mrs Vicdan Baykara on behalf of the trade union she represented, the Court draws attention to its case-law to the effect that the frustration felt by members of an organ that has been dissolved or prevented from acting can be taken into account in this con... | passage_843 | 228 | 110,298 | 110,790 | |
passage_843::229 | 65659/01, § 37, 5 October 2004). The Court observes that at the material time the trade union Tüm Bel Sen was the principal union of municipal-council staff. Its dissolution and the annulment of its collective agreement with the Gaziantep Municipal Council must have caused deep feelings of frustration among its members... | passage_843 | 229 | 110,791 | 111,213 | |
passage_843::230 | Making its assessment on an equitable basis, the Court awards the sum of EUR 20,000 in respect of non-pecuniary damage to the trade union Tüm Bel Sen. This sum is to be paid to Mrs Vicdan Baykara, who will be responsible for making the sum available to the said trade union.
B. Costs and expenses
182. Before the Gra... | passage_843 | 230 | 111,215 | 111,744 | |
passage_843::231 | The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Joins to the merits the Government’s preliminary objections and dismisses them;
2... | passage_843 | 231 | 111,746 | 112,259 | |
passage_843::232 | Holds that there has been a violation of Article 11 of the Convention on account of the annulment ex tunc of the collective agreement entered into by the trade union Tüm Bel Sen following collective bargaining with the employing authority;
4. Holds that it is not necessary to examine separately the complaints submitt... | passage_843 | 232 | 112,261 | 112,623 | |
passage_843::233 | Holds
(a) that the respondent State is to pay, within three months, the following amounts, to be converted into new Turkish liras at the rate applicable at the date of settlement:
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a... | passage_843 | 233 | 112,625 | 113,147 | |
passage_843::234 | Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 12 November 2008.
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following opinions are annexed to this judgment:
(a) separate opinion of Judge Zagrebelsky;
(... | passage_843 | 234 | 113,149 | 113,560 | |
passage_843::235 | I would like to add to the reasoning in the judgment as regards the right of trade unions to bargain collectively by expounding a few considerations of my own on the subject of the Court’s departures from precedent.
1. On 6 February 1976 in the case of Swedish Engine Drivers’ Union v. Sweden (Series A no. | passage_843 | 235 | 113,562 | 113,870 | |
passage_843::236 | 20) the Court found in its judgment as follows (§ 39):
The Court went on to conclude (§ 40):
(see, also, a judgment of the same date, Schmidt and Dahlström v. Sweden, §§ 34-35, Series A no. 21, and National Union of Belgian Police v. Belgium, 27 October 1975, § 39, Series A no. 19). | passage_843 | 236 | 113,871 | 114,156 | |
passage_843::237 | This case-law was referred to more recently, without being called into question, in 1996 and 2002, in the Gustafsson v. Sweden judgment (25 April 1996, § 45, Reports of Judgments and Decisions 1996II) and in the Wilson, National Union of Journalists and Others v. the United Kingdom judgment of 2 July 2002 (nos. | passage_843 | 237 | 114,158 | 114,470 | |
passage_843::238 | 30668/96, 30671/96 and 30678/96, § 44, ECHR 2002V).
In the present judgment, by contrast, the Court has found that “the right to bargain collectively with the employer has, in principle, become one of the essential elements of the ‘right to form and to join trade unions for the protection of [one’s] interests’ set for... | passage_843 | 238 | 114,471 | 114,867 | |
passage_843::239 | The Court has thus expressly departed from its case-law, taking into account “the perceptible evolution in such matters, in both international law and domestic legal systems” (see paragraph 153 of the judgment). In reality, the new and recent fact that may be regarded as indicating an evolution internationally appears ... | passage_843 | 239 | 114,869 | 115,492 | |
passage_843::240 | I have the feeling that the Court’s departure from precedent represents a correction of its previous case-law rather than an adaptation of case-law to a real change, at European or domestic level, in the legislative framework (as was the case, for example, in its Stafford v. the United Kingdom judgment of 28 May 2002 (... | passage_843 | 240 | 115,494 | 115,823 | |
passage_843::241 | 46295/99, ECHR 2002IV)) or in the relevant social and cultural ethos (as, for example, in the Christine Goodwin v. the United Kingdom judgment of 11 July 2002 ([GC], no. 28957/95, ECHR 2002VI)). This departure is probably closer to the situation dealt with by the Court in the case of Pessino v. France (no. | passage_843 | 241 | 115,824 | 116,131 | |
passage_843::242 | 40403/02, 10 October 2006) than to the domestic case-law in the S.W. v. the United Kingdom judgment of 22 November 1995 (Series A no. 335B). In any event, the evolution of public opinion which rendered foreseeable the solution adopted by the domestic courts in the S.W. v. the United Kingdom case was already evident by ... | passage_843 | 242 | 116,132 | 116,517 | |
passage_843::243 | The Court, recognising that “it is in the interests of legal certainty, foreseeability and equality before the law that [it] should not depart, without good reason, from [its] precedents”, and being responsible for interpretation of the Convention (Article 32 of the Convention), has nevertheless proceeded with this dep... | passage_843 | 243 | 116,519 | 117,020 | |
passage_843::244 | This is all perfectly consistent with the practice of the Court, which, while in principle following its own previous rulings, does from time to time, very cautiously, develop its case-law by a reversal of precedent (see Christine Goodwin, cited above, §§ 74 and 93; Vilho Eskelinen and Others v. Finland [GC], no. 63235... | passage_843 | 244 | 117,022 | 117,413 | |
passage_843::245 | 46827/99 and 46951/99, §§ 109, 121 and 125, ECHR 2005I).
4. All courts have to interpret the law in order to clarify it and, if need be, to keep pace with the changes in the society which they are serving (see, among many other authorities, Kokkinakis v. Greece, 25 May 1993, § 40, Series A no. | passage_843 | 245 | 117,414 | 117,710 | |
passage_843::246 | 260A, and Cantoni v. France, 15 November 1996, § 31, Reports 1996V). For the purposes of the Convention, the term “law” covers both enactments and the interpretation thereof by the courts (see Kruslin v. France, 24 April 1990, § 29, Series A no. | passage_843 | 246 | 117,711 | 117,956 | |
passage_843::247 | 176A), such that divergences in case-law create uncertainty and a lack of foreseeability that are capable of raising doubt as to the legality of an interference with a Convention right (see Driha v. Romania, no. 29556/02, § 32, 21 February 2008, and Păduraru v. Romania, no. 63252/00, § 98, ECHR 2005XII). | passage_843 | 247 | 117,957 | 118,262 | |
passage_843::248 | Any judicial interpretation of the law is by nature retrospective, in the sense that it applies to a prior situation or conduct.
However, in my opinion, the act of departing from precedent raises a particular problem, because the interaction between the new interpretation and the law, as previously contemplated, will ... | passage_843 | 248 | 118,263 | 118,790 | |
passage_843::249 | I would compare this to the problems raised by the retrospective effect of an Act interpreting a previous Act, justifying a certain resistance on the part of the Court. The requirements in terms of the quality of the law, and particularly that of the foreseeability of its application, entail a need for a similar approa... | passage_843 | 249 | 118,791 | 119,282 | |
passage_843::250 | As regards the case-law of domestic courts, the Court has already shown that it is aware of the problem in cases where it has taken note of rulings affording new domestic remedies to applicants (see Di Sante v. Italy (dec.), no. 56079/00, 24 June 2004; Cocchiarella v. Italy [GC], no. 64886/01, § 44, ECHR 2006V; Giummar... | passage_843 | 250 | 119,284 | 119,639 | |
passage_843::251 | 61166/00, 12 June 2001; Mifsud v. France (dec.) [GC], no. 57220/00, ECHR 2002VIII; Broca and Texier-Micault v. France, nos. 27928/02 and 31694/02, § 20, 21 October 2003; and Paulino Tomas v. Portugal (dec.), no. | passage_843 | 251 | 119,640 | 119,851 | |
passage_843::252 | 58698/00, ECHR 2003VIII), while dealing with such situations as if they entailed the creation of a new law due to take effect (“enter into force”) after a certain period of time, in the manner of a vacatio legis. | passage_843 | 252 | 119,852 | 120,064 | |
passage_843::253 | The same awareness is reflected in certain judgments of the Court of Justice of the European Union and of certain domestic courts, which, adopting the principle of prospective overrulings, or addressing the consequences of a mistake of law caused by existing case-law, do not apply (retrospectively and automatically) th... | passage_843 | 253 | 120,066 | 120,610 | |
passage_843::254 | In this connection, a particularly clear and pointed argument, in respect of Article 6 of the Convention, was used by the French Court of Cassation in a plenary judgment of 21 December 2006 (Dalloz, 2007, pp. 835 et seq., with a note by P. Morvan, Le Sacre du Revirement Prospectif sur l’Autel de l’Équitable). | passage_843 | 254 | 120,611 | 120,921 | |
passage_843::255 | The opinion of Lord Nicholls of Birkenhead in the National Westminster Bank plc v. Spectrum Plus Limited and others and others judgment of the House of Lords of 30 June 2005 ([2005] UKHL 41) is also worthy of note.
6. In its Marckx v. Belgium judgment of 13 June 1979 (§ 58, Series A no. | passage_843 | 255 | 120,922 | 121,211 | |
passage_843::256 | 31), the Court, responding to the Government’s request for determination of the effects of its ruling on previous situations, and taking into account the slow evolution towards the equality of treatment at issue in that case, dispensed the Belgian State from reopening legal acts or situations that antedated the deliver... | passage_843 | 256 | 121,212 | 121,797 | |
passage_843::257 | However, that was an exceptional case, which could probably also be explained by the significance of the consequences that could otherwise have affected a large number of individuals.
The Court nevertheless applied its new case-law, finding that Belgium had breached the Convention in respect of the applicants. In the ... | passage_843 | 257 | 121,798 | 122,200 | |
passage_843::258 | 50278/99, ECHR 2006I) that there had been a violation of Article 34 of the Convention, dismissing the respondent Government’s argument to the effect that the applicant’s expulsion had taken place prior to the adoption by the Court, in its Mamatkulov and Askarov judgment of 4 February 2005 (cited above), of its new case... | passage_843 | 258 | 122,201 | 122,609 | |
passage_843::259 | The Court thus considered that Contracting States had already been required to fulfil their obligations arising from Article 34 of the Convention at the time of the expulsion in question (see Aoulmi, cited above, § 111). Rightly so, but in the meantime the “content” of the obligation had changed as a result of the Cour... | passage_843 | 259 | 122,610 | 123,181 | |
passage_843::260 | If the new case-law extends the scope of a Convention provision and thus imposes a new obligation on States, a retrospective effect that is automatic and not subject to directions by the Court would, in my view, be difficult to reconcile with the requirements of foreseeability and legal certainty, which are essential p... | passage_843 | 260 | 123,182 | 123,805 | |
passage_843::261 | In the light of the foregoing, I would have preferred it if the Court had stipulated the time from which the right in question “became” (see paragraph 154 of the judgment) one of the essential elements of the right set forth in Article 11. In my own opinion, it would seem legitimate to doubt that this could already hav... | passage_843 | 261 | 123,807 | 124,224 | |
passage_843::262 | Moreover, I find it regrettable that the Court has once again allowed the “natural” retrospectiveness of judicial interpretation to impugn an approach that, at the material time, was (probably) not in breach of the Convention.
I did, however, vote in favour of finding a violation on account of the annulment of the col... | passage_843 | 262 | 124,225 | 124,871 | |
passage_843::263 | I voted without hesitation for finding a violation of Article 11 of the Convention on account of the failure to recognise the right of the applicants, as municipal civil servants, to form a trade union.
2. In the following lines I wish to explain why I also voted with the majority in favour of finding a violation of ... | passage_843 | 263 | 124,873 | 125,438 | |
passage_843::264 | The emphasis is thus placed on the “right to bargain collectively with the employer”.
5. It would be erroneous to infer that, for those working in the public service, “bargaining” has only one possible outcome: the “collective agreement”. It should not be forgotten that, in many legal systems, the statutory situation... | passage_843 | 264 | 125,440 | 126,071 | |
passage_843::265 | The status of civil servant is based on the unification, organisation and efficiency of the public service.
6. The following comments have been made by Nicolas Valticos with regard to Convention No. 151 of the International Labour Organisation (ILO) and the Labour Relations (Public Service) Recommendation, 1978 (R159... | passage_843 | 265 | 126,072 | 126,690 | |
passage_843::266 | Such associations cannot be ignored by the State as employer, or more generally by public authorities.
8. Even though the right to bargain collectively can no longer be called into question as such (see paragraphs 42-44 and 49-52 of the judgment), certain exceptions or limits must nevertheless always be possible in t... | passage_843 | 266 | 126,691 | 127,320 | |
passage_843::267 | 151, quoted at paragraph 44 of the judgment:
This provision thus authorises a certain flexibility in the choice of procedures for determining conditions of employment with the participation of civil servants (see also J. Llobera, “La Fonction Publique et la Liberté Syndicale dans les Normes Internationales du Travail”... | passage_843 | 267 | 127,321 | 127,872 | |
passage_843::268 | The authorising of public officials to make their voices heard certainly implies that they have a right to engage in social dialogue with their employer, but not necessarily the right to enter into collective agreements or that States have a corresponding obligation to enable the existence of such agreements. States mu... | passage_843 | 268 | 127,873 | 128,444 | |
passage_843::269 | The annulment ex tunc of the collective agreement entered into following collective bargaining with the authority had therefore entailed a violation of Article 11 of the Convention.
10. In the present case, however, the right to bargain collectively at issue had been rendered totally meaningless by the obstacles plac... | passage_843 | 269 | 128,445 | 128,984 | |
passage_665::0 | INTRODUCTION
1. The application concerns the alleged failure of the Constitutional Court to examine all of the three timely appeals lodged by the applicant, a former judge, in the disciplinary proceedings which resulted in his removal from office.
THE FACTS
2. The applicant was born in 1962 and lives in Krapina. H... | passage_665 | 0 | 0 | 551 | |
passage_665::1 | On 23 January 2010 police officers in Krapina noticed a vehicle swerving from one side of the road to the other and pulled it over. The vehicle was being driven by the applicant, who was a judge of the Krapina Municipal Court at the time. The test conducted on the spot and subsequent tests showed that his blood alcohol... | passage_665 | 1 | 553 | 1,149 | |
passage_665::2 | On 31 May 2010 the President of the Krapina Municipal Court instituted disciplinary proceedings against the applicant before the National Judicial Council, proposing that he be reprimanded. He was charged with the disciplinary offence of damaging the reputation of the court and judicial office.
7. By a decision of 8 ... | passage_665 | 2 | 1,151 | 1,760 | |
passage_665::3 | The first appeal was eleven pages long, was not dated and, even though it had the applicant’s advocate’s stamp on it, seemed to have been prepared by the applicant himself (“the first appeal”). The second appeal was seven pages long, was dated 6 July 2012, had the applicant’s advocate’s stamp on it and seemed to have b... | passage_665 | 3 | 1,761 | 2,263 | |
passage_665::4 | By a letter of 24 September 2012, the National Judicial Council forwarded those two appeals to the Constitutional Court and in so doing mistakenly referred to case file no. U-IX-2253/2012, which was the number that had been assigned to one of the applicant’s appeals lodged in the concurrent suspension proceedings (see ... | passage_665 | 4 | 2,265 | 2,771 | |
passage_665::5 | On 19 February 2013 the applicant lodged another appeal (“the third appeal”) which was four pages long, prepared by the applicant himself and dated 19 February 2013. The National Judicial Council received it on 21 February 2013 and then forwarded it to the Constitutional Court, which registered it under case file no. U... | passage_665 | 5 | 2,773 | 3,250 | |
passage_665::6 | However, in the third appeal he also added a new argument, stating that prosecution of the disciplinary offence in question had become time-barred.
11. According to the Government, the mention of the previous two appeals in the third appeal prompted the judge rapporteur and the law clerk assigned to the applicant’s c... | passage_665 | 6 | 3,251 | 3,827 | |
passage_665::7 | They considered that in his first appeal the applicant had raised the same arguments as in the third appeal, save for the argument concerning the statutory limitation period (see paragraphs 8 and 10 above). They therefore concluded that only the second appeal had to be taken out of the case file concerning the applican... | passage_665 | 7 | 3,828 | 4,317 | |
passage_665::8 | In a letter of 7 November 2013, the Constitutional Court invited the National Judicial Council to reply to the applicant’s argument concerning the expiry of the statutory limitation period. The letter indicated that copies of the applicant’s appeals of 6 July 2012 (the second appeal, see paragraph 8 above) and of 19 Fe... | passage_665 | 8 | 4,319 | 4,719 | |
passage_665::9 | By a decision of 18 December 2013, the Constitutional Court dismissed the applicant’s appeals against the National Judicial Council’s decision of 8 March 2012. The relevant parts of that decision read as follows:
DECISION
“The appeal is dismissed.
Reasons
I. PROCEEDINGS BEFORE THE CONSTITUTIONAL COURT
1. R.K., ... | passage_665 | 9 | 4,721 | 5,191 | |
passage_665::10 | By that decision, the NJC found the appellant guilty of damaging the reputation of the court and of judicial office – conduct contrary to the main principles of the Code of Judicial Ethics – thereby committing a disciplinary offence defined in subparagraph 6 of section 20(1) of the National Judicial Council Act ...
As... | passage_665 | 10 | 5,193 | 5,876 | |
passage_665::11 | THE APPELLANT’S SUBMISSIONS
5. The appellant opposes the NJC’s view that his conduct damaged the reputation of the court and judicial office, stating in essence that such a conclusion did not follow from either the documents in the case file or the police record describing the appellant’s conduct on the date in ques... | passage_665 | 11 | 5,878 | 6,549 | |
passage_665::12 | In the very extensive presentation of his arguments, the appellant does not adduce constitutionally relevant arguments, but aims instead to argue against the reasons and conclusions in the NJC’s decision, the manner in which it was adopted, the manner in which the witnesses gave their statements, and the conduct of the... | passage_665 | 12 | 6,551 | 7,001 | |
passage_665::13 | He finds it significant that by a judgment of 20 December 2011 of the Krapina Minor Offences Court he was acquitted, for lack of evidence, of [having committed a traffic offence] on 20 December 2011 by swerving on the road with his car. The appellant considers that this fact calls into question the authenticity and rel... | passage_665 | 13 | 7,003 | 7,406 | |
passage_665::14 | Lastly, he states:
‘It is also submitted that on 23 January 2013 the statutory limitation period [for prosecution of the offence] expired, given that three years had passed since commission of the disciplinary offence ...’
The appellant proposes that the appeal be allowed, the NJC’s decision quashed and the case remi... | passage_665 | 14 | 7,408 | 7,904 | |
passage_665::15 | ... the Constitutional Court considers that the NJC conducted the proceedings for determining the appellant’s disciplinary liability impartially and gave clear and valid reasons in its decision as regards the extent of liability found. The NJC’s reasons for the particular disciplinary sanction, imposed in accordance wi... | passage_665 | 15 | 7,906 | 8,465 | |
passage_665::16 | In these circumstances it is of no relevance that the appellant was acquitted by a final judgment [adopted] in the minor-offence proceedings of the charge of ‘swerving on the road with his car’. In particular, the assessment of the appellant’s disciplinary liability and of the gravity of the disciplinary offence does n... | passage_665 | 16 | 8,467 | 9,148 | |
passage_665::17 | As regards the appellant’s argument concerning the statute of limitations for instituting the disciplinary proceedings, the Constitutional Court considers the reasons given by the NJC to be constitutionally acceptable. Certain procedural delays operated in the appellant’s favour, and therefore their effects did not res... | passage_665 | 17 | 9,150 | 9,557 | |
passage_665::18 | U-IX-3911/2009 of 24 September 2009 ... the Constitutional Court reiterated the basic principles of judicial office:
...
The proper exercise of judicial office entails following the highest standards of professional behaviour and etiquette in general, even in the judge’s free time (the events in the appellant’s case ... | passage_665 | 18 | 9,558 | 10,095 | |
passage_665::19 | In no way can the appellant’s physical and verbal conduct towards the police officers, described in greater detail in the reasoning of the NJC’s decision, be considered acceptable. This is all the more so because Krapina is a relatively small town, and it can thus be objectively assumed that most of its inhabitants kno... | passage_665 | 19 | 10,096 | 10,446 | |
passage_665::20 | The appellant took flagrant advantage of this fact ... by making threats against the police officers as regards their job security ...
This portrays the appellant in a particular light, as a person who wants to ‘dispense justice’ with his aggressive behaviour, which in a democratic society is absolutely incompatible w... | passage_665 | 20 | 10,448 | 11,017 | |
passage_665::21 | Meanwhile, following the National Judicial Council’s decision of 8 March 2012 imposing the disciplinary measure of removal from office (see paragraph 7 above), in a decision of 16 March 2012 the President of the Krapina Municipal Court suspended the applicant for a period of three months until the Constitutional Court ... | passage_665 | 21 | 11,019 | 11,425 | |
passage_665::22 | That suspension was subsequently extended by the National Judicial Council in decisions of 14 June, 6 September and 16 November 2012 and 28 February, 6 June and 5 September 2013.
16. The applicant appealed to the Constitutional Court against each of those decisions. The first of those seven appeals was registered at ... | passage_665 | 22 | 11,426 | 11,936 | |
passage_665::23 | Other relevant proceedings
17. By a judgment of 20 December 2011, the Krapina Minor Offences Court, owing to a lack of sufficient evidence, acquitted the applicant of the minor offence of endangering road traffic by swerving with his car on the road on 23 January 2010 (see paragraph 5 above).
18. | passage_665 | 23 | 11,938 | 12,238 | |
passage_665::24 | By a decision of 20 November 2013, the same court acquitted the applicant of the minor offence of driving under the influence of alcohol because it was not clear whether the test results concerning his blood alcohol content referred to the time of the commission of the offence or to the time when the test had been carr... | passage_665 | 24 | 12,240 | 12,832 | |
passage_665::25 | That judgment was overturned, following an appeal by the applicant, by a judgment of 13 February 2014 of the High Minor Offences Court acquitting him because prosecution of the offence had become time-barred.
RELEVANT LEGAL FRAMEWORK
20. Under Croatian criminal procedure law, both the accused and his or her advocate... | passage_665 | 25 | 12,833 | 13,320 | |
passage_665::26 | 58/93 with further amendments), which was in force from 26 June 1993 until 20 October 2010, stipulated that the provisions of the relevant criminal procedure legislation applied in disciplinary proceedings before the National Judicial Council, mutatis mutandis, and as subsidiary rules. Section 29 provided that the judg... | passage_665 | 26 | 13,321 | 13,795 | |
passage_665::27 | Identical provisions are contained in sections 71(1) and 72(1) of the 2010 National Judicial Council Act (Zakon o državnom sudbenom vijeću, Official Gazette no. 116/10 with further amendments). Section 94(2) provides that the ongoing proceedings before the Council are to be conducted and concluded under the rules set o... | passage_665 | 27 | 13,797 | 14,230 | |
passage_665::28 | The applicant complained that the failure of the Constitutional Court to rule on two out of three of his appeals against the decision of the National Judicial Council of 8 March 2012 had rendered the proceedings against him unfair. He relied on Article 6 § 1 and Article 13 of the Convention.
24. | passage_665 | 28 | 14,232 | 14,529 |
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