FIRST SECTION
DECISION
Application no. 79580/12
Zdravko BOSANAC
against Croatia
The European Court of Human Rights (First Section), sitting on 20 February 2018 as a Committee composed of:
Aleš Pejchal, President,
Armen Harutyunyan,
Jovan Ilievski, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 2 November 2012,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Zdravko Bosanac, is a Croatian national who was born in 1954 and lives in Kutina. He was represented before the Court by Mr B. Posavčić, a lawyer practising in Kutina.
2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Minor offences proceedings
4. On 7 September 2009 the Novska Minor Offences Court, in its judgment no. P-1630/08, found that on 20 November 2008 the applicant had driven a vehicle while under the influence of alcohol, incorrectly overtaken another vehicle, and caused a road accident in which two persons had suffered serious bodily injuries and another person had suffered less serious bodily injuries. He was fined 6,000 Croatian kunas (HRK) and a six-month driving ban was imposed.
5. On 23 September 2009 the applicant lodged an appeal, but he withdrew it on 24 September 2010. On 18 October 2011 the High Minor Offences Court rejected the appeal as inadmissible because it had been withdrawn, and the judgment of 7 September 2009 became final.
2. Proceedings on indictment
6. On 27 February 2009 the Kutina Municipal State Attorney’s Office indicted the applicant before the Kutina Municipal Court on charges of drink-driving on 20 November 2008 and causing serious bodily injuries to two persons. On 14 October 2010 the applicant was found guilty as charged and he received a suspended sentence of 10 months’ imprisonment with three years’ probation, as well as a two-year driving ban.
7. On 18 November 2010 the applicant lodged an appeal in which he argued, inter alia, that he had already been convicted of the same offence by the Novska Minor Offences Court in its judgment no. Ip-1298/08. The applicant appended the cited judgment to his appeal. However, the cited judgment referred to his conviction by the Novska Minor Offences Court for drink-driving on 24 October 2008 and not to the event of 20 November 2008 for which he was put on trial in the criminal proceedings at issue.
8. On 5 April 2012 the Sisak County Court upheld the applicant’s conviction. As to his allegation concerning the ne bis in idem rule, it held that his conviction in the minor offences proceedings referred to drink‑driving only, whereas in the criminal proceedings he had been found guilty of causing serious bodily injuries to two persons while driving under the influence of alcohol. In that court’s view, those had not been the same offences.
9. On 16 May 2012 the applicant lodged a request for extraordinary review of a final judgment by the Supreme Court. It was declared inadmissible by that court on 14 June 2012, since such a request was only allowed where the accused was sentenced to a prison term, and not when he received a suspended sentence.
10. On 21 May 2012 the applicant lodged a constitutional complaint in which he alleged that he had already been finally convicted of the same offence by the Novska Minor Offences Court in its judgment no. P-1630/08. The constitutional court dismissed the complaint on 11 October 2012.
B. Relevant domestic law
11. The relevant part of the Code on Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 152/2008, 76/2009, 80/2011, 91/2012) reads:
Principles of criminal proceedings
Article 12
“(1) No one shall be criminally prosecuted for an offence for which he has been tried and in respect of which a final court judgment has been issued.
...”
Article 452
“A judgment dismissing the charges shall be issued where:
...
5. in respect of the same offence, the accused has already been finally convicted, acquitted, or the proceedings against him have been finally terminated.
...”
Grounds for appeal
Article 469
“There is an infringement of the Criminal Code where [the Code] has been infringed as regards the question of:
...
3. whether there are circumstances which exclude criminal prosecution, and in particular ... whether the case has been finally adjudicated upon;
...”
COMPLAINT
12. The applicant complained under Article 4 of Protocol No. 7 to the Convention that he had been tried and punished twice for the same offence.
THE LAW
Article 4 of Protocol No. 7
13. The applicant complained that he had been tried and punished twice in respect of the event of 20 November 2008. He relied on Article 4 of Protocol No. 7, the relevant part of which reads as follows:
“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.
...”
1. The parties’ arguments
14. The Government argued that the applicant had not properly exhausted domestic remedies, because in his appeal against the first-instance judgment issued in the proceedings on indictment he had relied on a wrong judgment of the Novska Minor Offences Court and enclosed judgment no. Ip-1298/08, which referred to a completely unrelated event, namely his conviction for drink-driving on 24 October 2008. Thus, he had deprived the appeal court of the opportunity to properly assess his argument that the ne bis in idem rule had been violated.
15. The applicant replied that he had properly exhausted all available remedies, including a request for extraordinary review of a final judgment by the Supreme Court and a constitutional complaint.
2. The Court’s assessment
16. In accordance with Article 35 § 1 of the Convention, the Court may only deal with a matter after all domestic remedies have been exhausted. The purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right violations alleged against them before those allegations are submitted to the Court (see, for example, Gherghina v. Romania [GC] (dec.), no. 42219/07, § 84, 9 July 2015).
17. The obligation to exhaust domestic remedies therefore requires applicants to make normal use of remedies which are available and sufficient in respect of their Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness. To be effective, a remedy must be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success (ibid., § 85).
18. The Court notes that in his appeal against the Kutina Municipal Court’s judgment of 14 November 2010 the applicant did raise the issue of his being tried and punished twice for the same offence, but relied on his punishment for an unrelated event of 24 October 2008 in respect of which he had been found guilty of drink-driving. The Court has already held that complaints regarding a lack of fairness in proceedings are best addressed in the proceedings in connection with which such complaints are raised (see Tarbuk v. Croatia, no. 31360/10, § 33, 11 December 2012). The same is true as to the ne bis in idem rule.
19. The Court notes that an infringement of the ne bis in idem rule is ground for appeal against a first-instance judgment. Therefore, there is no doubt that an appeal against the first-instance judgment was a proper remedy for the applicant’s grievances. However, by relying on a judgment in which he had been punished for an unrelated event, the applicant did not give the appeal court a true opportunity to address his complaint concerning the ne bis in idem rule.
20. In several cases concerning Croatia the Court has already considered that applicants had properly exhausted domestic remedies by raising the same complaints they raised before the Court throughout the domestic proceedings, and that that was the normal use of the domestic remedies, as required by Article 35 § 1 of the Convention (see Tarbuk, cited above, § 32; Zrilić v. Croatia, no. 46726/11, §§ 46-48, 3 October 2013; Horvatić v. Croatia, no. 36044/09, § 70, 17 October 2013; and Marić v. Croatia, no. 50132/12, § 53, 12 June 2014). By not complying with these requirements, the applicant in the present case has not properly exhausted domestic remedies.
21. Accordingly, the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 15 March 2018.
Renata DegenerAleš Pejchal
Deputy RegistrarPresident
Full & Egal Universal Law Academy