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On 29 August 2024, the Chamber of the European Court of Human Rights rendered a landmark inadmissibility decision in Mamić and Others v. Croatia.
The case concerns Mr. Zoran Mamić and Mr. Zdravko Mamić (former managers of the Dinamo Zagreb Football Club), and Mr. Milan Pernar (tax inspector) who were allegedly involved in financial misconduct regarding players' transfers and bribery of judges in a subsequent criminal proceeding in Croatia.
Although the case fell under the jurisdiction of the Zagreb courts, the case was transferred to the city of Osijek because of the connections that the defendants might have had with judges in Zagreb and the risk of undermining judicial impartiality.
In 2018, following witness testimonies and the presentation of evidence, the Osijek District Court convicted the defendants, imposing prison sentences and ordering asset confiscation.
Later, Mr. Zdravko Mamić revealed that judges in Osijek demanded money from him and that he granted them money and other benefits. This led to further investigations.
In 2021, the Croatian Supreme Court partially upheld the decision of the Osijek District Court, while constitutional complaints alleging judicial bias and procedural violations were dismissed by the Constitutional Court later that year.
In 2023, Mr. Zoran Mamić and Mr. Zdravko Mamić, along with others, faced fresh charges of bribery and corruption, including payments, gifts, and luxury trips offered to judges for favorable rulings. The implicated judges were later dismissed or resigned from their posts.
The case was brought before the European Court of Human Rights (ECtHR or the Court) after the applicants filed separate petitions alleging violations of their right to a fair trial under Article 6 of the European Convention on Human Rights. The petitions were combined for joint consideration by the Court.
Key complaints and the Court’s findings
The applicants alleged that proceedings before domestic courts violated their right to an impartial tribunal as guaranteed by Article 6 of the Convention. They alleged that corruption within the Croatian judiciary had affected the fairness of their proceedings.
The Croatian Government, on the other hand, argued that the applicants had abused their rights under the Convention prohibited under Article 17 and Article 35 of the Convention, through bribery, thereby undermining their right to judicial impartiality, and requested the Court to declare parts of the petitions inadmissible under Articles 17 and 35(3)(a) of the Convention.
The ECtHR declared the applications inadmissible, concluding that the applicants had acted in a deliberately manipulative manner in order to influence the outcome of the proceedings. It ruled that their actions constituted an abuse of the right of appeal and declared the petitions inadmissible under Article 35(3)(a).
The Court also applied Article 17. The Court emphasized that the applicants had exploited the judicial system by creating a situation in which they could claim bias if their manipulation failed. Their admissions that they had bribed judges and given gifts during their trials, as well as their attempts to reopen the proceedings, underscored the abuse of the judicial system.
In this analysis, we argue that the Court’s application of Articles 35 and 17 of the Convention in the present case is inconsistent with previous applications of the same provisions, and thus the Court has departed from its established case law.
Abuse of the right to petition according to the jurisprudence and the standards of the European Court of Human Rights
The Court’s position of rejecting the applicants’ petition on the basis of Article 35(3)(a) and Article 17 of the Convention appears problematic, regardless of whether these provisions are applied independently or together.
In paragraphs 114-119 of the decision, the Court set out general principles for the application of Article 35(3)(a) of the Convention, which gives it the right to reject the application if it considers that there has been an abuse of the right to lodge the application.
Under Article 35(3)(a) of the Convention, the Court declares an individual application inadmissible if it considers that the application is incompatible with the provisions of the Convention or the Protocol to the Convention, is manifestly ill-founded or constitutes an abuse of the right to lodge an application.
However, it pointed out that this is an "exceptional procedural measure" which is only applied in the event of a "harmful" use of rights by the applicant for purposes for which this legal institution was not created.
The Court referred to its decisions on four different situations, namely: the petitions were based on untrue facts (Varbanov v. Bulgaria); the petitions in which an improper form of communication with the court was used because the language was provocative, impertinent, contemptuous or threatening (Rehak v. Czech Republic); breach of confidentiality of the amicable settlement negotiations (Deceuninck v. France); and the applicants have submitted manifestly unfounded claims similar to those already submitted and declared inadmissible (Anibal Vieira e Filhos, Lda. v. Portugal). It turns out that none of the above decisions referred to by the Court in the Mamić decision are in any way applicable to this particular case.
The parallel with the Varbanov case could be drawn if the application was based on untrue facts. In the Mamić case, not only was this not the case, but it was not alleged by any of the parties.
In Rehak case, the applicant insulted the judges and the Registrar of the ECtHR and the Court considered that “by trying to spread his allegations and insults as widely as possible, the applicant demonstrated his determination to damage and tarnish the reputation of the institution of the European Court of Human Rights, its members and staff”. No false vocabulary was used in the communication with the Court in the Mamić case.
The other cases mentioned above are also not comparable to the Mamić et alia case. There were no attempts at settlement that could even lead to a situation in which the confidentiality of the negotiations would be jeopardized, and this or a similar application was not previously filed by the applicants.
The Court mentioned in paragraph 117 of the Mamić decision that the concept of abuse of the right to application is not limited to the situations mentioned above and that any behavior of the applicant may fall under the concept of abuse of the right if it is manifestly contrary to the purpose of the application. It should be emphasized that all the above cases in which Article 35 (3) (a) was applied referred to the abuse of the procedure before the ECtHR and none to the actions before the national courts.
In paras. 118 and 119, the Court clarified that the abuse of domestic remedies and the conduct of an applicant before the national authorities are relevant factors in assessing whether an application is to be regarded as an abuse of right. The decisions referred to are: Bock v. Germany; Dudek (VIII) v. Germany; and Ferrara and Others v. Italy.
The case of Bock v. Germany concerns the duration of domestic proceedings concerning the reimbursement of a minor expense rejected as abusive. Mr. Bock applied for reimbursement of part of the costs, namely 7.99 euros (EUR). The Court invoked Article 35(3) and declared the application inadmissible because the right of application had been abused. There was a disproportion between the insignificance of the amount in question on the one hand and the extensive recourse to legal proceedings, including recourse to an international court, on the other.
The criteria established in the Bock case for an abuse of the right of individual appeal are: first, the case did not involve important questions of principle; second, the plaintiff’s conduct of the proceedings was not beyond reproach (he tended to conduct proceedings in parallel, to file extensive pleadings late, and to make wholly disproportionate claims); and finally, the issue of the length of proceedings had already been addressed by the Court in numerous cases, including against the defendant government. None of the three Bock criteria were met in the Mamić case.
In the Dudek case, the Court recalled its decision in Bock v. Germany. The Court pointed out that, in adopting Protocol No. 14, the High Contracting Parties had clearly expressed a desire for the Court to devote more time to cases that warranted consideration on the merits and to promote the principle of de minimis non curat praetor.
In Ferrara, the application was declared inadmissible because the plaintiffs, using the same technique as before the national courts and continuing their conduct at the national level before the Court, had unnecessarily filed separate actions and had falsely and intentionally multiplied their requests for an award of just compensation, including costs, attorneys' fees and expenses.
The circumstances of the Mamić case simply do not fit with the abuses we saw in Bock, Ferrara or Dudek.
The Mamić case deals with much more complex and serious issues of how a defendant facing serious charges and a long prison sentence can be deprived of the right to a fair trial. It concerns the allegation that the judges demanded money and benefits from the defendant who complied with these demands. It was not a situation that was originally intended for abuse of the application, nor was the application wrongly made. This also raised the question of whether the state can be relieved of the duty to ensure a fair trial when professional judges, as state employees, are involved in turning a criminal case into a sham trial.
If the High Contracting Parties really wanted the Court to spend more time examining the merits and not deal with pointlessly small and repetitive cases, then this is an argument for dealing with the Mamic case on the merits.
Apart from the judgments referred to by the Court in this decision, we could not find any judgment in the case law of the ECtHR that decisively limits the right of the accused to a fair trial (regardless of how the accused defended himself/herself against the charges before the national courts).
Has Article 17 gone astray in this case?
Article 17 states that no provision of the Convention may be interpreted as conferring on any State, group or person the right to engage in any activity or perform any act aimed at nullifying the said rights and freedoms or restricting them more than is provided for in the Convention.
The main purpose of this provision is to prevent totalitarian or extremist groups from justifying their activities by invoking the Convention, for example by invoking Article 10 to advocate violent racist programs (Harris et al., Law of the ECHR, Oxford College Press, 2014, p. 852).
Article 17 is linked to the concept of a „defensible democracy“ (Vogt v. Germany, paras 51 and 59).
Article 17 sphere of application potentially covers the protection of the fundamental values of democracy and human rights, the case law mainly concerning Articles 10 and 11, with Article 17 being of potential relevance to extremist material or groups identified by the Court with an agenda that is ‘contrary to the text and spirit of the Convention’ (Paksas v. Lithuania. para. 88). Cases have concerned communism, groups with profoundly anti-democratic ambitions, holocaust denial, justification for Nazi-like policies, and hate speech (racial, religious, and ethnic) (Harris, p. 853).
In Bîrsan v. Romania the Court pointed out that Article 17 has a double effect. First, it prevents signatory states from relying on any of the Convention’s provisions to undermine the rights and freedoms it protects. Secondly, it prevents signatory states from relying on a particular provision of the Convention in order to restrict the rights and freedoms guaranteed by that provision to a greater extent than is provided for in the Convention.
In Mozer v. Republic of Moldova and Russia, the Court concluded that Article 17 cannot be interpreted a contrario as depriving a person of the individual fundamental rights guaranteed by Articles 5, 6 and 7 of the Convention.
In Lawless v. Ireland (no. 3) the applicant was a member of the Irish Republican Army, which committed acts of violence in order to abolish British sovereignty over Northern Ireland. He spent several months in detention without charge or trial under the Offenses Against the State Act. Neither the Commission nor the Court supported the State’s contention that no State, group or person engaged in activities falling within the provisions of Article 17 can invoke any of the provisions of the Convention. The Convention bodies held instead that Article 17 does not prevent the applicant from seeking protection under Articles 5 and 6.
The Guide to Article 17 of the European Convention on Human Rights – Prohibition of abuse of rights (Serbian language version of April 30, 2021) only lists cases in which the Court took the view that Article 17 could not be applied to the right to a fair trial, i.e. not a single case was listed in which the application of Article 17 was allowed in conjunction with Article 6 of the Convention.
All of the above convincingly demonstrate the impossibility of applying Article 17 in conjunction with Article 6 of the Convention.
In the Mamić decision, the Court did not refer to any of the aforementioned decisions and did not provide any explanation for the deviation from the previous practice. Perhaps the explanation could be that in the Lawless the Court did not completely close the door to the application of Article 17 in conjunction with Article 6, that the number of rights to which Article 17 has been applied is increasing and that there are no rights to which its application would be prohibited a priori in exceptional circumstances. However, the Court did not do so.
It is important to point out that in the applications and further submissions of Zoran and Zdravko Mamić in the proceedings before the ECtHR, arguments were put forward that Article 35 of the Convention, and in particular Article 17 of the Convention, cannot be applied.
The first applicant claimed that Article 17 of the Convention cannot be applied in this case, adding that the European Court has never before had recourse to Article 17 when dealing with issues arising under Article 6 of the Convention. He also argued that even if the second applicant’s actions showed disrespect for the domestic court, this did not relieve the State of its duty to ensure a fair trial for such an accused. Should it be proven that the second applicant bribed the judges of the County Court in Osijek, then he would certainly be punished for such acts in a lawfully conducted criminal trial. However, the state must ensure that the defendant is convicted by an independent and impartial court in any trial, which would certainly not have been the case if he had been convicted by a judge whom he is alleged to have bribed.
The second applicant alleged that the judges of the Osijek District Court had bribed him and that the corruption prevailing in the Croatian judiciary had occurred mainly because he had uncovered it. Zdravko Mamić also argued that the defendant could not waive his right to be tried by an impartial court and that Article 17 of the Convention could not be applied in this case.
The aforementioned arguments of Zoran and Zdravko Mamić were not without merit, and the least they deserved was a response from the court. However, the court did not address these claims of the applicants with a single word. As a rule, this behavior of the courts is extremely frustrating for the applicants and their lawyers.
The Challenges of Implementing Article 17
We consider that the provisions of Article 17 should not be applied in the Mamić case.
We recall that, in theory, the main aim of this provision is to prevent totalitarian or extremist groups from justifying their activities by invoking the Convention, and that it is clear from the Court’s practice that the application of Article 17 is only possible in situations where there are incidents which involve a threat to the constitutional order or the promotion of totalitarian ideologies or incitement to violence and the like, and that the Court itself stated very clearly in the Vogt decision that Article 17 of the Convention is closely linked to the concept of „defensible democracy“. This is, in popular terms, desperate cuts must have desperate cures, and this desperate cuts represents situations where fundamental values – democracy, the rule of law and human rights – are under threat.
The defendants in the Mamić case, with all due respect, do not, on the face of it, have the power to diminish the rule of law and seriously threaten the judicial system in Croatia. The Court’s statement that the behavior of the Mamić brothers was aimed at manipulating and seriously obstructing the judicial system seems like a platitude without any real substance. After all, it was a single criminal case. How can serious obstruction of justice be carried out in one trial? None of the applicants is a member of a totalitarian or extremist group calling for a violent change to the democratic order and the abolition of the rule of law. Why was Article 17 of the Convention invoked at the end?
Article 17 is a rather tempting instrument that the Court has used (until the Mamić case) mainly in cases concerning alleged violations of Articles 10 and/or 11 of the Convention. In this context, it is of particular importance to point out that the governments’ invocation of Article 17 has not been automatically accepted by the Court for Articles 9, 10 and 11 of the Convention either (see Vona v. Hungary).
And while some justification for the application of Article 17 in relation of Articles 9, 10 and 11 of the Convention can be found for, we consider the application of Article 17 to be completely excluded in the case of Article 6. How can anyone be deprived of the right to a fair trial within the meaning of the Convention? What interest would justify not even preliminary examining allegations of violations of a fair trial rights?
Conclusion
The right to a fair trial must apply to all, including those accused of heinous crimes.
Historical debates such as Churchill’s proposal to summarily execute Nazi leaders highlight the tension between justice and expediency. However, the decision to hold the Nuremberg trials strengthened the rule of law.
In the case of Mamić v. Croatia, the defendants face financial charges rather than heinous crimes, making the implicit denial of the right to a fair trial all the more perplexing. Such actions risk establishing a dangerous precedent. Will future cases conclude that defendants who lie in court are waiving their right to a fair trial? Could this logic extend to suspects who exercise their right to remain silent during interrogation?
The Court’s decision in the Mamić does not affect the Osijek District Court's judgment, which sentenced the applicants to prison. This judgment was issued by a judge who was later dismissed for misconduct in the case, yet it remains final and unreviewable. In our view, this approach is deeply flawed.
The circumstances in the Mamić case were exceptional. It is not usual for a defendant to admit to bribing judges or for judges to admit to accepting bribes. Also unusual was the prosecution’s request for transfer of jurisdiction, in which it invoked the defendant’s familiarity with judges in Zagreb, while later overlooking the fact that a judge from Osijek met the defendant in a public setting and accepted a valuable gift. Such incidents, while extravagant, are not the type of behavior targeted by Article 17. Even if the defendants have committed misconduct, they do not appear to pose a threat to democracy, the rule of law or fundamental human rights.
By applying Articles 35 and 17, the Court declared the applications inadmissible and avoided dealing with the merits of the case. It would have been more appropriate to examine whether the applicants’ right to a fair trial had been violated. Should such a violation be found, Croatia would be obliged to retry the case according to fair trial standards and at the same time independently prosecute the bribery allegations concerning both the defendants and the judges.
There are strong arguments supporting the claim that Croatia failed to ensure a fair trial for the Mamić brothers. Had the case been pursued on the merits, it is highly likely that the Court would have found a violation of their right to a fair trial.
Unlike the 1961 Lawless decision, which upheld fair trial protections during national security crises, the Mamić ruling weakens fair trial guarantees and introduces further uncertainty into the Court’s jurisprudence. It is crucial that this decision remains an isolated case and does not represent a broader undermining of the Court’s commitment to the protection of fundamental rights.
