Applications nos. 14590/15 and 25405/15
Stjepan RINGWALD against Croatia
and Vanja RINGWALD against Croatia
The European Court of Human Rights (First Section), sitting on 22 January 2019 as a Committee composed of:
Krzysztof Wojtyczek, President,
Pauliine Koskelo, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above applications lodged on 17 March 2015 and 15 May 2015 respectively,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
1. The applicant in the first case, Mr Stjepan Ringwald (the first applicant), is a Croatian national who was born in 1972 and lives in Zagreb. He was represented before the Court by Mr A. Ilić and Mr Z. Ringwald, lawyers practising in Zagreb and Šibenik.
2. The applicant in the second case, Ms Vanja Ringwald (the second applicant), is a Croatian national who was born in 1947 and lives in Šibenik. She was represented before the Court by Mr R. Špaleta, a lawyer practising in Drniš.
3. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
A. The circumstances of the case
4. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Special investigative measures
5. On 10 December 2009 the Šibenik County State Attorney’s Office (Županijsko državno odvjetništvo u Šibeniku) asked an investigating judge of the Šibenik County Court (Županijski sud u Šibeniku) to authorise the use of secret surveillance measures in respect of G.Š. on the grounds that he was suspected of aggravated robbery.
6. During the investigation and by using secret surveillance measures against G.Š., the authorities intercepted and recorded a number of telephone conversations and messages in connection with suspected drug trafficking. The first applicant’s phone number was noted in that respect.
7. Following an application lodged on 8 January 2010 by the Šibenik County State Attorney’s Office, on 11 January 2010 the investigating judge of the Šibenik County Court authorised the use of secret surveillance measures in respect of the applicants on the grounds that they were suspected of drug trafficking. The relevant statement of reasons reads as follows:
“… inquiries carried out so far have confirmed specific communication between M.S. and Stjepan Ringwald [the first applicant] in coded messages, which points to deals on trafficking in narcotic drugs and to Vanja Ringwald [the second applicant] as the person depositing the money [obtained] as a result of this activity, which has been used for purchasing additional quantities of narcotic drugs.
… there are grounds for suspecting that Stjepan and Vanja Ringwald have committed a criminal offence under Article 173 § 2 of the Criminal Code in conjunction with section 41 of the Act on Aendments to the Criminal Code by using the above-mentioned mobile telephone numbers. It follows that the State Attorney’s request for special measures in respect of all the said persons is well founded since certain information and evidence can only be collected in that manner if their collection is not to entail disproportionate difficulties.”
8. Following a further request from the Šibenik County State Attorney’s Office, on 18 February 2010 the Šibenik County Court issued an order to extend the measure to the first applicant in relation to another telephone number. The relevant statement of reasons reads as follows:
“By processing [the information obtained by tapping] telephone conversations so far … the police learned that most of the persons contacted by Stjepan Ringwald are perpetrators of criminal offences [related to] the abuse of illegal drugs and have been registered as perpetrators of various criminal offences: abuse of illegal drugs, thefts, aggravated thefts and other crimes. Furthermore, special surveillance measures have revealed that Stjepan Ringwald has been in some way distributing narcotic drugs through V.M. and has been transferring the money thus obtained to Stjepan’s mother, Vanja Ringwald. It is expected that the special measures in respect of Stjepan Ringwald would, by means of [the tapping of] telephone conversations, aid [the police] in collecting operational information regarding the circumstances of the criminal offence of abuse of narcotic drugs. [It would] also provide timely information on the place and time of the drug delivery, and enable the police to respond to the information on time and in a most effective manner in order to apprehend the buyers in possession of the drugs and possibly intercept the drug delivery itself. Given that certain information and evidence can only be collected in the manner specified by this order if their collection is not to entail disproportionate difficulties, the decision in the operative part of this order had to be made.”
9. On 2 March 2010, at the request of the Šibenik County State Attorney’s Office, the Šibenik County Court suspended the imposed measures.
10. Meanwhile, on 23 February 2010 the investigating judge had ordered a search of the second applicant’s house. On the same day some 4.7 kg of marijuana had been seized and the applicants had been arrested on suspicion of trafficking in illegal substances.
2. The criminal proceedings
11. Following the investigation, on 17 May 2010, the applicants and two others were indicted in the Split County Court on charges of trafficking in illegal substances.
12. On 18 February 2011 the Split County Court found the applicants guilty as charged and sentenced the first applicant to five years’ and four months’ imprisonment and the second applicant to two years’ imprisonment.
13. Both applicants lodged appeals against the first-instance judgment. The first applicant challenged the first-instance judgment before the Supreme Court (Vrhovni sud Republike Hrvatske), arguing that his telephone calls had been unlawfully tapped. He claimed, inter alia, that the secret surveillance orders had lacked relevant reasoning and had been issued contrary to the requirements of the relevant domestic law. He also contended that his right to be presumed innocent had been violated because of statements made by the head of the Šibenik-Knin County Police (see paragraph 21 below).
14. On 5 July 2011 the Supreme Court quashed the first-instance judgment and remitted the case for re-trial. It found that the first applicant’s complaints concerning the surveillance measures and the breach of his presumption of innocence were unfounded but that the first-instance court should have examined some other evidence. It stressed in particular that the alleged lack of reasoning justifying the secret surveillance orders did not result in the unlawfulness of the evidence obtained by the use of such secret surveillance.
15. On 26 April 2012 the Split County Court convicted the applicants as charged and sentenced the first applicant to five years’and four months’ imprisonment and the second applicant to one year’s imprisonment. The court found that all doubts expressed by the defence as to the accuracy of the recordings had been clarified by the telecommunication and phonetic expert reports obtained during the trial. It therefore dismissed the first applicant’s objections pertaining to the use of the evidence obtained by secret surveillance and, relying in particular on that evidence, proceeded with its detailed assessment when determining the applicants’ guilt.
16. Both applicants lodged appeals against the first-instance judgment. The first applicant argued that his telephone calls had been unlawfully tapped and that his right to be presumed innocent had been violated.
17. On 20 November 2012 the Supreme Court dismissed the applicants’ appeals as unfounded and upheld the first-instance judgment. It found that statements made to the media by the head of the Šibenik-Knin County Police had violated the first applicant’s right to be presumed innocent as guaranteed under Article 28 of the Constitution (see paragraph 23 below), but that such a violation had not affected the fairness of the proceedings conducted by a panel composed of three professional judges. It also held that all the relevant circumstances of the case had been properly established by the first-instance court and that the applicants’ conviction had been based on a proper and convincing assessment of the evidence and the relevant facts. The relevant part of the Supreme Court judgment reads:
“It is true that the public statements made by the head of the Šibenik-Knin County Police, in which he named the accused Stjepan Ringwald as the perpetrator of the criminal offence in respect of which the criminal proceedings – in which the prosecutor’s task was to prove the accused’s guilt – were yet to be conducted, were inappropriate and in contravention of the Constitution of the Republic of Croatia. Article 28 of the Constitution guarantees to everyone the right to be presumed innocent as long as his or her guilt has not been proven in court proceedings conducted under the law.
However, such conduct on the part of a high ranking police official, contrary to the allegations made in the appeal, could not have influenced in any way the criminal proceedings in which the first-instance court eventually established the accused’s guilt. Those findings are correct in the view of the Supreme Court as well as the second-instance court.
The accused points out that the said conduct of a high-ranking police officer … depicted him as the perpetrator of a criminal offence without that being established by a court. That had then decisively influenced the [trial] court during the proceedings and at the time of adopting their verdict, which had also violated his right to a fair trial.
However, given that in the case at issue non-professional judges – jurors – did not participate, but … only professional judges, a press conference … at which the suspect, in contravention of the Constitution of the Republic of Croatia, had already been named as the perpetrator of a criminal offence, cannot have had an influence on the process of fair trial. Professional judges cannot neglect their professional knowledge (the principle of fair trial and the principle of the presumption of innocence of the accused as leading [principles] for criminal justice) during the trial and take as decisive for adjudicating a case the opinion of police officers. The police only provide professional assistance to the State Attorney, carry out inquiries in respect of criminal offences and as one of the parties to the criminal proceedings, assist the prosecution in putting forward arguments as to the existence of reasonable doubt that a particular person had committed a particular criminal offence. Judges base their decision on their knowledge of the Constitution of the Republic of Croatia, statutes and international agreements, the legal provisions of which they apply on the established factual basis and then provide arguments for their findings. Their arguments have to be such that if either party is dissatisfied with them, it can dispute them. Such an approach to adjudicating is apparent from the impugned judgment, so it cannot at all be said that there has been a violation of the right to a fair trial on account of the public statements made by the head of Šibenik-Knin County Police in which he named the accused Stjepan Ringwald as the perpetrator of the criminal offence, and thus violated the constitutional provision on the presumption of an accused’s innocence until his or her guilt is proven by a final judicial decision.”
18. Both applicants lodged constitutional complaints before the Constitutional Court (Ustavni sud Republike Hrvatske), arguing, inter alia, that their right to be presumed innocent had been violated. The first applicant also complained of unlawful secret surveillance and the use of evidence thereby obtained in the criminal proceedings against him.
19. On 1 December 2014 the Constitutional Court, endorsing the reasoning of the Supreme Court, dismissed the first applicant’s constitutional complaint as unfounded on the grounds that the proceedings as a whole had been fair. It also held that the statements the head of the Šibenik-Knin County Police had made to the media could not have led the public to believe that the first applicant had been guilty of the offences at issue.
20. On 1 December 2014 the Constitutional Court dismissed the second applicant’s constitutional complaint as unfounded. It endorsed the lower courts’ findings and the grounds given for their judgments without providing any further specific reasoning in respect of the second applicant’s complaint of a violation of the presumption of innocence.
3. Statements of the police
21. On 23 February 2010 a television report about the applicants’ arrest was broadcast on NOVA TV, a television channel with national coverage. The report included statements given by certain police officers and the head of the Šibenik-Knin County Police, who said:
“In 2004 he [the first applicant] was arrested and convicted in France, where he was [found] in possession of 21 kg of hashish …
Organised crime, and associating for the purpose of committingsuch crime, is punishable by imprisonment for at least five years or by long-term imprisonment. It means they [the first and second applicants] will not get away with this.”
B. Relevant domestic law
22. The relevant provision of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010 and 5/2014) reads as follows:
“Everyone shall be presumed innocent and nobody shall be held guilty of a criminal offence until his or her guilt has been established in a final judgment of a court of law.”
23. The relevant provisions of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette nos. 35/2005 and 42/2008) read as follows:
“(1) Every legal entity and every natural person has the right to respect for their personal integrity under the conditions prescribed by this Act.
(2) The right to respect for one’s personal integrity within the meaning of this Act includes the right to life, physical and mental health, good reputation and honour, the right to be respected, the right to respect for one’s name and [the right to] privacy of personal and family life, freedom et alia.
“Damage is … incurred if the right to respect for one’s personal integrity is infringed (non-pecuniary damage).”
24. The relevant part of section 186(a) of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/91, 91/92, 58/93, 112/99, 88/01 and 117/03) reads as follows:
“A person intending to bring a civil suit against the Republic of Croatia shall first submit a request for a settlement to the competent State Attorney’s Office.
Where the request has been refused or no decision has been taken within three months of its submission, the person concerned may bring an action before the competent court.
25. The relevant domestic law and practice concerning the use of secret surveillance measures are set out in the case of Dragojević v. Croatia (no. 68955/11, §§ 52-61, 15 January 2015).
26. The first applicant complained that he had been subjected to unlawful secret surveillance and that evidence so obtained had been used in the criminal proceedings against him, contrary to Articles 6 § 1 and 8 of the Convention.
27. Both applicants complained under Article 6 § 2 of the Convention that their right to be presumed innocent had been violated by statements given by the police.
A. Joinder of the applications
28. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given that they concern similar facts and raise identical issues under the Convention.
B. Article 8 of the Convention
29. The first applicant complained that the secret surveillance of his telephone conversations had been in violation of the guarantees of Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
1. The parties’ arguments
30. The Government accepted that there had been an interference with the applicant’s rights under Article 8 of the Convention. However, they considered that such interference had been lawful and justified. In particular, referring to the Court’s findings in the Dragojević case (no. 68955/11, 15 January 2015), the Government argued that the investigating judge’s orders contained detailed reasoning regarding the existence of “grounds for suspicion” of a criminal offence, as well as why an effective inquiry could not be achieved in any other way.
31. The first applicant contended that the secret surveillance carried out against him had been unlawful because it had been based on orders given by the investigating judge which had not been properly reasoned. They had contained no assessment of the likelihood that an offence had been committed or of whether the investigation into that offence could be conducted by other, less intrusive, means. He argued that the domestic authorities had failed to demonstrate that the interference with his right to respect for his private life and correspondence had been justified and necessary, as required under Article 8 of the Convention.
2. The Court’s assessment
32. The Court refers to the general principles concerning the use of secret surveillance measures set out in the Dragojević judgment (cited above, §§ 78-84 and 86-89; see also Bašić v. Croatia, no. 22251/13, § 32, 25 October 2016, and Matanović v. Croatia, no. 2742/12, § 112, 4 April 2017). As it found in the Dragojević judgment, the Court finds in the present case that the tapping of the first applicant’s telephone constituted an interference with his right to respect for both his private life and his correspondence, guaranteed under Article 8 of the Convention (ibid., § 85).
33. The Court found in the Dragojević case (ibid., §§ 90-101) that the lack of reasoning underlying the investigating judge’s order, accompanied by the domestic courts’ practice of circumventing such lack of reasoning by providing a retrospective justification of the use of secret surveillance, was not in compliance with the relevant domestic law and did not in practice secure adequate safeguards against possible abuse. The Court thus considered that such practices were not compatible with the requirement of lawfulness, nor were they sufficient to keep the interference with an applicant’s right to respect for his private life and correspondence to what was “necessary in a democratic society” (see also Bašić, cited above, §§ 33‑34, and Matanović, cited above, § 114).
34. The Court observes, however, that unlike in thecases of Dragojević, Bašić, and Matanović, in the case at hand the investigating judge’s orders concerning the use of secret surveillance measures did not include only the statutory phrase that “the investigation could not be conducted by other means, or would be extremely difficult”. Those orders provided reasons based on the specific facts of the case and the particular circumstances indicating probable cause for believing that the offence had been committed by the first applicant and that the investigation could not be conducted by other, less intrusive, means (see paragraphs 8 and 9 above; see also Roman Zakharovv. Russia [GC], no. 47143/06, § 260, ECHR 2015).
35. Against the above background, the Court finds that the relevant domestic law, as interpreted and applied by the competent courts in the present case, provided reasonable clarity regarding the scope and manner in which the discretion conferred on the public authorities was exercised, and that in practice adequate safeguards were secured against possible abuse. Accordingly, the procedure for ordering and supervising the implementation of the interception of the first applicant’s telephone calls was shown to have fully complied with the requirements of lawfulness, and was adequate to keep the interference with his right to respect for his private life and correspondence to what was “necessary in a democratic society”.
36. It follows that this part of the first applicant’s application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
C. Article 6 § 1 of the Convention
37. The first applicant complained that evidence obtained by means of unlawful secret surveillance had been used in the criminal proceedings against him. He relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads:
“In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal …”
1. The parties’ arguments
38. The Government pointed out that the applicant had been given an adequate opportunity to challenge the evidence at issue and to oppose its use in the proceedings, as well as to ask for further evidence to be examined at the trial. In the Government’s view, all his arguments in this respect had been duly examined and addressed by the domestic courts, including the Supreme Court and the Constitutional Court. Moreover, the Government considered that the impugned evidence had not been the sole or decisive evidence for the applicant’s conviction but represented only one element in the complex body of evidence against him.
39. The first applicant argued that the criminal proceedings against him had fallen short of the requirements of a fair trial. He contended that his conviction had been based solely on evidence obtained by unlawful and unjustified secret surveillance. In his view, the domestic courts’ reliance on such evidence had not been accompanied by adequate procedural safeguards guaranteeing the fairness of the proceedings.
2. The Court’s assessment
40. The Court has said on numerous occasions that it is not its function to deal with errors of fact or law allegedly made by a national court, unless and in so far as they may have infringed rights and freedoms protected by the Convention. Normally, issues such as the weight attached by the national courts to given items of evidence or to findings or assessments in issue before them for consideration are not for the Court to review. The Court should not act as a fourth instance and will not therefore question under Article 6 § 1 the judgment of the national courts, unless their findings can be regarded as arbitrary or manifestly unreasonable (see Zubac v. Croatia [GC], no. 40160/12, § 79, 5 April 2018 and the cases cited therein). Moreover, whilst Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are primarily matters for regulation by national law and national courts (see, among many other authorities, Ziembiński v. Poland (no. 2), no. 1799/07, § 49, 5 July 2016).
41. In the present case, the Court has found the first applicant’s complaint under Article 8 of the Convention about the secret surveillance of his telephone conversations manifestly ill-founded. That implies that the secret surveillance measures and the evidence thus obtained were not unlawful, since a requirement that any interference with an applicant’s rights protected under Article 8 has to be based in law is inherent in the guarantees of that Article. The Court further finds that the applicant’s allegations do not disclose any appearance of a violation of the fair trial guarantees, within the meaning of Article 6 § 1 of the Convention.
42. It follows that this part of the first applicant’s application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
D. Article 6 § 2 of the Convention
43. Both applicants further complained that the statements made to the media by the head of the Šibenik-Knin County Police amounted to a breach of the presumption of innocence as guaranteed under Article 6 § 2 of the Convention, which reads:
“2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
1. The parties’ arguments
44. The Government argued that the applicants’ complaint had been submitted outside the six-month time-limit, as the police officer’s statements of which the applicants complained had been made at a public conference on 23 February 2010. Relying on the principles set out in the case of Peša v. Croatia (no. 40523/08, §§ 132-33, 8 April 2010), the Government observed that the Court had found that neither the remedies provided for by the Criminal Procedure Act nor the constitutional complaint had been legal remedies which an applicant had to use before addressing the Court. In that connection, the Government maintained that it would have been unrealistic to expect that a court of any instance would release the applicants, quash their convictions or dismiss the charges against them because a police officer had, prior to the initiation of the criminal proceedings against the applicants, publicly predicted the outcome of those proceedings. Such an expectation would have had no basis in any of the provisions of the Criminal Procedure Act or the Constitution.
45. In that connection, the Government deemed that the applicants should have lodged their application no later than six months after the disputed press conference.
46. Alternatively, the Government deemed that the second applicant had not exhausted all effective remedies. In particular, she had not complained of a breach of the presumption of innocence before the first and the second-instance courts, but had raised the issue for the first time in her constitutional complaint. The view of the Supreme Court adopted in the case of the first applicant showed that the second applicant should have raised the issue of her right to be presumed innocent at the trial and appeal stages of the proceedings.
47. The applicants contested the Government’s arguments, claiming that their applications had been lodged within the six-month time-limit and that they had fully exhausted the domestic remedies.
2. The Court’s assessment
48. The Court reiterates that, in accordance with Article 35 § 1 of the Convention, it 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).
49. 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).
50. It is true that in the above-cited case of Peša the Court held that the statements made by high-ranking State officials in violation of the applicant’s right to be presumed innocent and published in various newspapers could not serve as grounds for an appeal or for any other remedy in the context of the criminal proceedings against the applicant since, under the relevant domestic laws, such grounds consisted of errors of fact and law as well as procedural errors.
51. As regards the possibility of lodging a constitutional complaint, the Court held in the case of Peša that a constitutional complaint could be lodged only against a decision issued by a competent authority. However, as regards the impugned statements, no decision had been adopted and therefore no constitutional complaint lay against them.
52. The findings of the Court relied on domestic legislation. However, as the facts of the case at issue show, the Supreme Court indeed found that the first applicant’s right to be presumed innocent had been violated by the impugned statements of the police officer (see paragraph 17 above) but that that had not affected the fairness of the criminal proceedings against him. Such a development in the approach of the national courts has to be taken into account. On the other hand, the second applicant made no such complaints to the Supreme Court.
53. In the context of the present case the Court considers it important also to reiterate the principles concerning the victim status of an applicant. A decision or measure favourable to an applicant is not in principle sufficient to deprive the applicant of his or her status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Murray v. the Netherlands [GC], no. 10511/10, § 41, 26 April 2016, andNada v. Switzerland [GC], no. 10593/08, § 128, ECHR 2012). This acknowledgement and the redress are most often the result of the exhaustion of domestic remedies (see Staykov v. Bulgaria, no. 49438/99, § 89, 12 October 2006, and C and D v. Croatia (dec.), no. 43317/07, 14 October 2010).
(a) As regards the first applicant
54. As to whether the national authorities acknowledged the breach of the Convention, the Court notes that in its judgment of 20 November 2012 the Supreme Court expressly stated that the public statements made by the police had been unacceptable and in contravention of Article 28 of the Constitution, which guarantees the presumption of innocence. In the Court’s view, such a finding certainly amounts to an acknowledgment of the breach of the first applicant’s right to be presumed innocent, irrespective of the fact that the Supreme Court did not find that his right to a fair trial had been violated. The Court finds nothing arbitrary in the Supreme Court’s assertion that the impugned statements could not have influenced the criminal proceedings in which the first-instance court found the first applicant guilty. In particular, it notes that the first-instance panel had been composed exclusively of professional judges, who adjudicated the case on the basis of the evidence presented during the trial and the applicable laws (see paragraph 17 above for further arguments of the Supreme Court).
55. As regards the question of redress, the Court notes that in the context of criminal proceedings the Supreme Court is not empowered to award damages for breaches of Convention rights. On the other hand, the right to respect for one’s reputation and honour is regarded as part of the right to “personal integrity” under section 19 of the Civil Obligations Act. Any infringement of one’s “personal integrity” is, in turn, under section 1046 of the same Act, considered to have caused non-pecuniary damage. Since the Supreme Court expressly found that the first applicant’s right to be presumed innocent had been violated by statements made by the police presupposing his guilt prior to any finding of the criminal courts in that respect – statements that could also be regarded as an attack on his reputation and honour – that gives the first applicant the realistic prospect of obtaining compensation under the above-cited provisions of the Civil Obligations Act (compare also C and D v. Croatia, cited above).
56. In view of the above, the Court finds that the national authorities expressly acknowledged a violation of the first applicant’s right to be presumed innocent. This finding gave him a reasonable possibility of obtaining redress. However, he has not sought compensation in a civil action against the State. While the institution of civil proceedings for damages in itself cannot fully remedy an infringement of the right to the presumption of innocence (see Konstas v. Greece, no. 53466/07, § 29, 24 May 2011, and Paulikas v. Lithuania, no. 57435/09, § 41, 24 January 2017), such proceedings in combination with the Supreme Court’s acknowledgment of a violation of his right to be presumed innocent do satisfy the requirements of effectiveness.
57. It follows that when the Supreme Court established that the first applicant’s right to be presumed innocent had been violated, he had to pursue only the remedies for obtaining redress for that breach. Therefore, even if he chose to submit a complaint before the Constitutional Court, it was evident that in these proceedings he could not obtain compensation for the alleged breach. The only avenue for obtaining damages was a civil action under sections 19 and 1046 of the Civil Obligations Act, which the first applicant did not pursue.
58. Accordingly, this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
(b) As regards the second applicant
59. The Court notes that the second applicant raised, inter alia, the issue of her right to be presumed innocent for the first time in her constitutional complaint. The Constitutional Court did not make any assessment of that complaint. It addressed other issue related to the fairness of the criminal proceedings against the second applicant by viewing these proceedings as a whole and finding them to be fair and dismissed the constitutional complaint as unfounded (see paragraph 20 above).
60. The second applicant did not raise the issue of having been tried and punished twice, either during her trial before the Split County Court or in her appeal against the first-instance judgment to the Supreme Court. She thus invited the criminal court concerned to find a violation of the presumption of innocence from the procedural standpoint. The fact that the Supreme Court found a violation in that respect as regards the first applicant demonstrates that the second applicant should have made use of such a remedy.
61. 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 v. Croatia, no. 31360/10, § 32, 11 December 2012; 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). It thus follows that the second applicant, by her failure to comply with the above requirements, has not exhausted domestic remedies.
62. Accordingly, this part of the second applicant’s 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,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 14 February 2019.
Renata Degener Krzysztof Wojtyczek
Deputy Registrar President