FIRST SECTION
DECISION
Application no. 73009/13
Darko GRADINŠČAK
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 7 November 2013,
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 Darko Gradinščak, is a Croatian national who was born in 1972 and lives in Varaždin. He was represented before the Court by Mr R. Mlinarić, a lawyer practising in Zagreb.
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 21 December 2008 the Sisak Minor Offences Court found the applicant guilty of road traffic offences, in that on 9 October 2008 he had caused a road accident while speeding which had resulted in material damage, serious bodily injuries to both himself and one other person, and one person’s death.
He was fined 7,500 Croatian kunas (HRK) and a twelve-month driving ban was imposed. That judgment became final on 30 January 2009.
2. Proceedings on indictment
5. On 31 October 2008 an investigation was opened in respect of the applicant in the Sisak County Court in connection with the accident of 9 October 2008.
6. On 8 April 2009 the applicant was indicted in the Sisak Municipal Court on charges of causing a road accident while under the influence of alcohol on 9 October 2008 which had resulted in the serious bodily injuries of one person and the death of another.
7. During the proceedings the applicant objected that he had already been punished for the same offence in the minor offences proceedings.
8. On 27 September 2010 he was found guilty as charged and sentenced to three years’ imprisonment, and a driving ban of the same duration was imposed. As to the applicant’s objection concerning the ne bis in idem rule, the Municipal Court held that the minor offence of which the applicant had been convicted had not been the same as the criminal offence, since those two offences differed in their nature, factual background and the severity of their punishment.
9. In a subsequent appeal the applicant again raised the issue of his being tried twice for the same offence. On 4 October 2010 the Sisak County Court upheld the applicant’s conviction. As regards the ne bis in idem rule, it endorsed the Municipal Court’s reasoning.
10. In a subsequent constitutional complaint the applicant again complained that he had been tried twice for the same offence. It was declared inadmissible by the Constitutional Court on 6 May 2013 as not raising any issue concerning the applicant’s constitutional rights. The issue of the ne bis in idem rule was not addressed.
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 matter has already been finally adjudicated upon;
...”
Request for extraordinary review of a final judgment
Article 515
“(1) A defendant who has been finally sentenced to a prison term ... may lodge a request for extraordinary review of a final judgment on account of infringements of law prescribed by this Act, or where he or she has been finally convicted in the proceedings in a manner amounting to an infringement of fundamental human rights and freedoms guaranteed by the Constitution, international law or a statute.
...”
Article 516
“The Supreme Court shall decide requests for extraordinary review of a final judgment.”
Article 517
“A request for extraordinary review of a final judgment may be lodged [in respect of]:
1. an infringement of the Criminal Code to the detriment of the convicted person under Article 469(1)-(4) of this Act...
...”
Article 518
“A request for extraordinary review of a final judgment may be lodged by the convicted person and his or her defence lawyer within a month of the final judgment being served on them ...”
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 9 October 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 he had not lodged a request for extraordinary review of a final judgment with the Supreme Court.
15. The applicant maintained that he had complained that his conviction in the proceedings on indictment had violated his right not to be tried or punished twice in both his appeal against that conviction and his constitutional complaint, and thus he had properly exhausted domestic remedies.
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 the ne bis in idem rule is one of the principles of criminal proceedings in Croatia (see Article 12 of the Code on Criminal Procedure, paragraph 12 above). Where, in respect of the same offence, the accused has already been finally convicted or acquitted, or the proceedings against him have been finally terminated, a judgment dismissing the charges is to be issued (see Article 452 of the Code on Criminal Procedure, cited in paragraph 12 above). It is also ground for appeal against a first-instance judgment (see Article 469 of the Code of Criminal Procedure, paragraph 12 above). It is one of the prescribed grounds for finding an infringement of the Criminal Code, namely that circumstances existed which excluded criminal prosecution, and in particular that the matter had already been finally adjudicated upon (Articles 469, 515 and 517 of the Code of Criminal Procedure, see paragraph 12 above), and thus may be raised in a request for extraordinary review of a final judgment by the Supreme Court.
19. In its judgment in Maresti v. Croatia (no. 55759/07, §§ 23-28, 25 June 2009), which also concerned an alleged violation of the ne bis in idem rule, the Court accepted that such a request was a remedy to be exhausted. The relevant part of that judgment reads:
“23. The Court firstly observes that the actual name given to the proceedings in the domestic legal system or the fact that the national jurisdictions have considered them as an extraordinary remedy cannot be considered determinant: what is decisive is the nature and the scope of the proceedings at issue (see San Leonard Band Club v. Malta, no. 77562/01, § 41, ECHR 2004-IX). Furthermore, it is the Court’s well-established practice that the proceedings following an appeal on points of law or an appeal for cassation fall within the scope of Article 6 § 1 of the Convention (see, for example, H.E. v. Austria, no. 33505/96, §§ 14 and 18, 11 July 2002, and Cobianchi v. Italy (no. 1), no. 43434/98, § § 8 and 11, 9 November 2000).
...
25. .As to the nature of the proceedings following a request for extraordinary review of a final judgment in a criminal case, the Court observes that the Croatian Supreme Court may, if it finds the request well-founded, quash the lower courts’ judgments and remit the case, or in certain cases even decide the case itself. The reasons justifying extraordinary review of a final judgment are expressly enumerated in Article 427 [now Article 517] of the Code of Criminal Procedure and are not subject to any discretionary decision of the court. The remedy is available only to the defendant (not to the prosecution) for strictly limited errors of law that operate to the defendant’s detriment and is subject to a strict one-month time limit following the service of the judgment on the defendant.
26. The request for extraordinary review has its equivalent in civil proceedings in the form of an appeal on points of law to the Supreme Court (revizija), which is also lodged against a final judgment. In this connection, the Court notes that it has already found that Article 6 is applicable to proceedings concerning such an appeal (see Debelić v. Croatia, no. 2448/03, §§ 21 and 22, 26 May 2005). As to the criminal-law remedy at issue, the Court has in a previous case (Kovač v. Croatia (no. 503/05, 12 July 2007)) taken into consideration proceedings before the Supreme Court concerning a request for extraordinary review of a final judgment by a defendant in a criminal case.
27. In his request for an extraordinary review, the applicant complained, inter alia, of an infringement of the Criminal Code on account of the alleged violation of the non bis in idem principle. The Court notes that the applicant’s request was made on one of the prescribed grounds for finding an infringement of the Criminal Code, namely that there existed circumstances which excluded criminal prosecution and in particular that the matter had already been finally adjudicated (Articles 368, 425 and 427 [now Articles 469, 515 and 517] of the Code of Criminal Procedure – see paragraph 16 above).
28. In these circumstances, the Court concludes that the proceedings following the request for extraordinary review of the final judgment were decisive for the determination of a criminal charge against the applicant and so fall within the scope of Article 6 § 1. Accordingly, the Government’s objection must be dismissed.”
20. In further cases concerning Croatia the Court confirmed that a request for extraordinary review of a final judgment was a remedy to be exhausted when it was allowed in the particular circumstances of a case (see Dolenec v. Croatia, no. 25282/06, §§ 198-199, 26 November 2009; Šebalj v. Croatia, no. 4429/09, §§ 242-245, 28 June 2011; and Gregačević v. Croatia, no. 58331/09, §§ 39 and 40, 10 July 2012), and not when the grounds relied on by an applicant in respect of that remedy were not those prescribed by law (see Knapić v. Croatia (dec.), no. 2839/08, 4 June 2009).
21. As to the case at issue, the Court notes that, as already explained above in the references to the Maresti, infringement of the ne bis in idem rule is one of the grounds for lodging a request for extraordinary review of a final judgment. However, the applicant did not use that remedy.
22. 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