DRAGOJEVIĆ v. CROATIA JUDGMENT
30
(see, amongst many other authorities, Erkapić v. Croatia, no. 51198/08,
§ 78, 25 April 2013).
108. The Court therefore rejects the Government’s objection. It also
notes that this complaint is not manifestly ill-founded within the meaning of
Article 35 § 3 (a) of the Convention. It further notes that it is not
inadmissible on any other grounds. It must therefore be declared admissible.
2. Merits
(a) The parties’ submissions
109. The applicant pointed out that during the proceedings the president
of the trial bench, Judge Z.Č., had, of his own motion, expressed concerns
about the appearance of his impartiality as he had previously taken part in
the proceedings extending the applicant’s pre-trial detention. Referring to
the case-law of the Court and the relevant domestic practices, he had
submitted that there were ascertainable facts raising doubts as to his
impartiality. In the applicant’s view, this meant that the judge had lacked
impartiality in terms of the subjective aspect of the Court’s relevant test and,
in any event, that the trial bench had lacked objective impartiality as this
had been sufficient evidence to raise legitimate doubts as to the lack of
Judge Z.Č.’s impartiality. Moreover, the President of the Dubrovnik County
Court had shared the concerns expressed by Judge Z.Č. and had therefore
requested the Supreme Court to transfer the proceedings to another court,
but the Supreme Court had dismissed that request.
110. The Government submitted that the applicant had failed to rebut the
presumption of Judge Z.Č.’s impartiality in terms of the subjective aspect of
the Court’s relevant test as the judge had never expressed any personal bias
or prejudice in the applicant’s case. As to the objective test of impartiality,
the Government considered that the mere participation of a judge at
previous stages of the proceedings could not in itself raise any doubts as to
his or her lack of impartiality. It was true that during the proceedings Judge
Z.Č. had asked to withdraw from the case, but he had merely relied on his
interpretation of the relevant domestic requirements without providing
concrete grounds for the possible appearance of a lack of impartiality on his
part. The final decision concerning his request had been given by the
Supreme Court, which had examined the request for transfer of the
proceedings to another court submitted by the President of the Dubrovnik
County Court. The Supreme Court had explained that the fact that a judge
had ordered pre-trial detention could not affect his or her impartiality as
such a decision did not concern the same issues that the judge had to decide
when examining the case on the merits. In the Government’s view, this
interpretation had followed the relevant practice of the Court and the
Constitutional Court. The applicant had thus misconstrued the request of
Judge Z.Č. to withdraw from the case as that request had merely referred to
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