By
Dušan Ignjatović and
Mihailo Pavlović, attorneys at law from Belgrade, Serbia
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.
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