FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 34687/08
by Željko DRLJAN
against Croatia
The European Court of Human Rights (First Section), sitting on 25 March 2010 as a Chamber composed of:
Christos Rozakis, President,
Nina Vajić,
Elisabeth Steiner,
Khanlar Hajiyev,
Dean Spielmann,
Giorgio Malinverni,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 1 July 2008,
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
The applicant, Mr Željko Drljan, is a Croatian national who was born in 1960 and is currently serving a prison term in Lepoglava State Prison. He was represented before the Court by Ms S. Oluški Radaković, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On an unspecified date an indictment was brought against the applicant in the Sisak County Court (Županijski sud u Sisku) on charges of murder and attempted murder. The applicant was placed in pre-trial detention in Croatia and was legally represented by a lawyer from Croatia.
On an unspecified date Mrs G.B., a lawyer practising in Kragujevac, Serbia, was also appointed by the authorities to represent the applicant. All witnesses gave evidence before the Kragujevac County Court in Serbia (Okružni sud u Kragujevcu) in the presence of Mrs G.B.
In a judgment of the Sisak County Court of 6 November 2006 the applicant was found guilty of murder and attempted murder and sentenced to twenty-one years’ imprisonment.
In the proceedings the trial court heard evidence from medical and ballistic experts and read the statements of ten witnesses who had given evidence before the Kragujevac County Court. The relevant part of the judgment reads:
“Under Article 331 § 1(1) of the Code of Criminal Procedure this court has decided to read the evidence given before an investigating judge of the Kragujevac County Court, Serbia and Montenegro, by the witnesses D.G., R.G., G.P., R.M., O.M., D.K., D.G., R.M., J.S., R.P. and the injured party T.M., because these witnesses live in the territory of Serbia and Montenegro and, although properly summoned, failed to appear at the hearing, and because summonses for the witnesses D.K. , G.P. and R.P. could not be served on them.”
The first-instance judgment was upheld by the Supreme Court of Croatia (Vrhovni sud Republike Hrvatske) on 31 January and 24 April 2007. On 21 June 2007 the applicant lodged a constitutional complaint concerning the grounds for his detention, the quality of his legal representation and the assessment of the facts by the national courts. The applicant’s constitutional complaint was declared inadmissible on 29 November 2007 on the grounds that it was incomplete because the applicant had failed to cite the exact provisions of the Constitution which he deemed to have been violated in the criminal proceedings against him.
B. Relevant domestic law and practice
The relevant part of the Croatian Constitution (Ustav Republike Hrvatske, Official Gazette no. 41/2001 of 7 May 2001) reads as follows:
Article 29 § 1
“In the determination of ... any criminal charge against him or her ... a suspect, defendant and accused person have the right to ... question ... prosecution witnesses ...”
The relevant part of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002 of 3 May 2002 – “the Constitutional Court Act”) reads as follows:
Section 62
“1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the individual act of a state body, a body of local and regional self-government, or a legal person with public authority, which has determined his or her rights and obligations, or a suspicion or accusation of a criminal act, has violated his or her human rights or fundamental freedoms or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: constitutional right) ...
2. If there is provision for another legal remedy in respect of a violation of the constitutional rights [complained of], a constitutional complaint may be lodged only after that remedy has been exhausted.
...”
COMPLAINTS
The applicant complained under Article 6 §§ 1 and 3(d) of the Convention that he had had no opportunity to question any of the witnesses in the criminal proceedings against him.
THE LAW
The applicant complained that he had had no opportunity to question any of the witnesses in the criminal proceedings against him. He relied on Article 6 §§ 1 and 3(d) of the Convention, which reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
...
3. Everyone charged with a criminal offence has the following minimum rights:
...
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
...”
The Government argued that the applicant had failed to exhaust domestic remedies because he had not complied with the procedural requirements for lodging a constitutional complaint.
As to the merits of the case, they argued that the Croatian courts had no power to summon witnesses from Serbia and that the witnesses concerned had given evidence in connection with a criminal investigation opened against the applicant in Serbia.
The applicant argued that he had exhausted all available remedies and that in Croatia there was no possibility of obtaining legal aid in proceedings before the Constitutional Court. As a result, unfamiliar as he was with legal matters, he had had to draft his constitutional complaint himself. His legal knowledge had been insufficient, however, for him to be able to expressly rely on specific provisions of the Constitution. He had nevertheless clearly explained the grounds for his complaint.
As to the merits of his application, he argued that, by means of legal assistance between the two States, the Croatian courts could have had the witnesses examined in Serbia and provided for him or his counsel to be present.
The Court does not need to address all the issues raised by the parties as the application is in any event inadmissible for the following reasons.
The Court reiterates that under Article 35 normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. 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 (see Akdivar and Others v. Turkey, 16 September 1996, § 66, Reports of Judgments and Decisions 1996‑IV).
The purpose of Article 35, in accordance with the principle of subsidiarity, is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. Thus the complaint intended to be made subsequently to the Court must first have been made, at least in substance, to the appropriate domestic body (see Glasenapp v. Germany, 28 August 1986, § 44, Series A no. 104; Englert v. Germany, 25 August 1987, § 31, Series A no. 123; and Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V).
As regards the present case, with regard to the Government’s objection that the applicant did not exhaust all the domestic legal remedies at his disposal, the Court notes in respect of applications lodged against Croatia that, according to the Court’s case-law, applicants are in principle required to exhaust remedies before the domestic courts and ultimately to lodge a constitutional complaint. The right to examine witnesses in criminal proceedings against him, which is the subject of the applicant’s complaint before the Court, is guaranteed by Article 29 of the Croatian Constitution.
The Court notes that on 21 June 2007 the applicant did lodge a constitutional complaint within the prescribed time-limit. In that complaint, however, he did not rely, even in substance, on the same grounds that he is now presenting before the Court. Before the Court he has complained that the requirements of a fair trial were not satisfied in the criminal proceedings against him because he had no opportunity to examine the witnesses called on behalf of the prosecution, while in his constitutional complaint he complained about the grounds for his detention, the quality of his legal representation and the assessment of the facts by the national courts.
Therefore, contrary to the principle of subsidiarity, the applicant did not provide the Constitutional Court with an opportunity to afford him a remedy in respect of the complaints which he has submitted to the Court.
It follows that 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.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy