FIRST SECTION
DECISION
Application no. 18532/12
Darko LEŠTEK
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 24 February 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 Darko Leštek, is a Croatian national who was born in 1962 and lives in Zagreb. He was represented before the Court by Ms K. Abramović, 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 23 November 2005 the Zagreb Minor Offences Court found the applicant guilty of domestic violence in front of a minor child, in that on 14 November 2005, in front of his daughter, a minor, he had verbally insulted his former spouse and poured water on her. He was sentenced to thirty days’ imprisonment.
5. A subsequent appeal by the applicant was dismissed on 9 December 2005 by the High Minor Offences Court, and thus became final on the same date.
2. Proceedings on indictment
6. On 27 July 2005 an investigation against the applicant was opened in the Zagreb County Court in respect of allegations that he had behaved violently in front of his minor child over a longer period. The applicant was indicted in the Zagreb Criminal Municipal Court on 27 July 2006.
7. On 4 March 2009 the Zagreb Criminal Municipal Court found the applicant guilty of neglecting and abusing a minor child, domestic violence, and making threats in the period between June 2002 and mid-December 2005, which also included the event of 14 November 2005. He received a suspended sentence of ten months’ imprisonment and two years’ probation.
8. In a subsequent appeal the applicant did not raise the issue of his being tried and punished twice for the same offence.
9. On 16 February 2011 the Zagreb County Court upheld the applicant’s conviction for neglecting and abusing a minor child and for domestic violence, and dismissed the charges for making threats on the grounds that a statutory limitation period in respect of those charges had meanwhile expired. His suspended sentence was reduced to nine months’ imprisonment with the same period of probation.
10. In a constitutional complaint of 2 May 2011 the applicant complained for the first time that he had been tried and punished twice for the same offence. It was dismissed by the Constitutional Court on 21 September 2011.
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 14 November 2005. 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 raised the issue of his being tried and punished twice for the first time in his constitutional complaint. However, he should have raised that objection as soon as his first conviction had become final, that is to say during the trial before the Zagreb Criminal Municipal Court, and certainly in his appeal against the first-instance judgment issued in the proceedings on indictment.
15. The applicant maintained that by raising the relevant issue before the Constitutional Court 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 applicant did not raise the issue of his being tried and punished twice either during his trial before the Zagreb Criminal Municipal Court or in his appeal against the first-instance judgment issued on 4 March 2009. 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 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 10 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 10 above). However, a trial court could hardly know whether an accused had already been finally convicted or acquitted of the same offence unless the defence raised such an objection. Despite the fact that the applicant’s conviction in minor offences proceedings had become final in December 2005 and his trial before the Zagreb Criminal Municipal Court lasted until March 2009, the applicant at no time during that period informed the Zagreb Criminal Municipal Court of his conviction by the minor offences court.
20. Moreover, an infringement of the ne bis in idem rule is also 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, the applicant did not raise that issue in his appeal. Indeed, he raised it for the first time in his constitutional complaint.
21. 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.
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