FIRST SECTION
DECISION
Application no. 37738/12
Boris LAMBAŠA
against Croatia
The European Court of Human Rights (First Section), sitting on 12 June 2018 as a Committee composed of:
Kristina Pardalos, President,
Ksenija Turković,
Tim Eicke, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 28 May 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 Boris Lambaša, is a Croatian national, who was born in 1961 and lives in Šibenik. He was represented before the Court by Mr A. Korljan, a lawyer practising in Zadar.
2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 28 April 2008 the Šibenik Tax Administration fined the applicant with 3,000 Croatian kunas (HRK) for tax evasion related to non-payment of VAT for the year 2008 in the amount of HRK 78,606.20.
5. On 8 December 2010 the Šibenik Municipal State Attorney’s Office lodged a request with the Šibenik County Court for opening an investigation in respect of the applicant on charges of the abuse of authority in business operations in relation to, inter alia, non-payment of VAT for the year 2008 in the amount of HRK 78,606.20. The request was granted on 4 May 2011.
6. The applicant then lodged an appeal arguing that his right not to be tried twice had been violated by opening an investigation which encompassed the facts in respect of which he had already been punished in minor offences proceedings. The Supreme Court dismissed the appeal on 27 July 2011.
7. The applicant then lodged a constitutional complaint which was declared inadmissible by the Constitutional Court on 26 January 2012 on the grounds that a request for opening an investigation was not an act susceptible to the Constitutional Court’s review.
8. On 18 October 2011 the Šibenik Municipal State Attorney’s Office lodged an indictment against the applicant in the Šibenik Municipal Court on charges of the abuse of authority in business operations. The applicant lodged a complaint against the indictment, invoking his right not to be tried or punished twice. It was dismissed by a three-judge panel of the Šibenik County Court on 18 January 2012. The criminal proceedings against the applicant are currently pending.
COMPLAINT
9. The applicant complained under Article 4 of Protocol No. 7 to the Convention that he had been tried twice for the same offence.
THE LAW
10. The applicant complained that he had been tried twice for the same offence. He relied on Article 4 of Protocol No. 7 which reads as follows:
“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.”
11. The Government contested that argument.
12. The Court reiterates that the aim of Article 4 of Protocol No. 7 is to prohibit the repetition of criminal proceedings that have been concluded by a “final” decision (see Sergey Zolotukhin v. Russia [GC], no. 14939/03, § 107, ECHR 2009).
13. As to the present case the Court notes that the applicant was subject to a fine imposed by the Ministry of Finance, Šibenik Office, on 28 April 2010. There is no dispute that that decision has become final. In view of its conclusions in respect of the exhaustion of domestic remedies (see paragraph 17 below), it is not necessary for the Court to reach any firm conclusion on whether the proceedings relating to the imposition of the fine imposed by the Ministry of Finance in the present case fall to be considered as “criminal” for the purposes of Article 4 of Protocol No. 7.
14. The Court reiterates further that Article 4 of Protocol No. 7 is not confined to the right not to be punished twice but extends to the right not to be prosecuted or tried twice (see Sergey Zolotukhin, cited above, § 110).
15. The applicant lodged his application at the time when a criminal investigation, allegedly referring to the same offence for which he had been punished, was opened in respect of him and he attempted several remedies during the investigation stage. However, the opening of a criminal investigation cannot be seen as being “tried” for the purposes of Article 4 of Protocol No. 7 since the trial begins with lodging an indictment.
16. The Court notes that the criminal proceedings have indeed been instituted against the applicant and they are still pending. He is still able to exhaust available domestic remedies in respect of his complaint under Article 4 of Protocol No. 7 within these proceedings, such as an appeal against the first-instance judgment, a request for extraordinary review of a final judgment (see Maresti v. Croatia, no. 55759/07, §§ 23-28, 25 June 2009) and a regular constitutional complaint.
17. It follows that the present application is premature. Accordingly, this complaint 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 5 July 2018.
Renata DegenerKristina Pardalos
Deputy RegistrarPresident
Full & Egal Universal Law Academy