FIRST SECTION
\nDECISION
\nApplication no. 18532\/12
\nDarko LE\u0160TEK
\nagainst Croatia<\/p>\n
The European Court of Human Rights (First Section), sitting on 20\u00a0February 2018 as a Committee composed of:<\/p>\n
Ale\u0161 Pejchal, President,
\nArmen Harutyunyan,
\nJovan Ilievski, judges,
\nand Renata Degener, Deputy Section Registrar,<\/p>\n
Having regard to the above application lodged on 24 February 2012,<\/p>\n
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
THE FACTS<\/strong><\/p>\n 1.\u00a0\u00a0The applicant, Mr DarkoLe\u0161tek, is a Croatian national who was born in 1962 and lives in Zagreb. He was represented before the Court by Ms\u00a0K.\u00a0Abramovi\u0107, a lawyer practising in Zagreb.<\/p>\n 2.\u00a0\u00a0The Croatian Government (\u201cthe Government\u201d) were represented by their Agent, Ms \u0160. Sta\u017enik.<\/p>\n A.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n 3.\u00a0\u00a0The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n 1.\u00a0\u00a0Minor offences proceedings<\/em><\/p>\n 4.\u00a0\u00a0On 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\u00a0November 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\u2019 imprisonment.<\/p>\n 5.\u00a0\u00a0A 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.<\/p>\n 2.\u00a0\u00a0Proceedings on indictment<\/em><\/p>\n 6.\u00a0\u00a0On 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.<\/p>\n 7.\u00a0\u00a0On 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\u2019 imprisonment and two years\u2019 probation.<\/p>\n 8.\u00a0\u00a0In a subsequent appeal the applicant did not raise the issue of his being tried and punished twice for the same offence.<\/p>\n 9.\u00a0\u00a0On 16 February 2011 the Zagreb County Court upheld the applicant\u2019s 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\u2019 imprisonment with the same period of probation.<\/p>\n 10.\u00a0\u00a0In 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\u00a0September 2011.<\/p>\n B.\u00a0\u00a0Relevant domestic law<\/strong><\/p>\n 11.\u00a0\u00a0The relevant part of the Code on Criminal Procedure (Zakon o kaznenompostupku, Official Gazette nos. 152\/2008, 76\/2009, 80\/2011, 91\/2012) reads:<\/p>\n Principles of criminal proceedings<\/p>\n Article 12<\/p>\n \u201c(1)\u00a0\u00a0No 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.<\/p>\n …\u201d<\/p>\n Article 452<\/p>\n \u201cA judgment dismissing the charges shall be issued where:<\/p>\n …<\/p>\n 5.\u00a0\u00a0in respect of the same offence, the accused has already been finally convicted, acquitted, or the proceedings against him have been finally terminated.<\/p>\n …\u201d<\/p>\n Grounds for appeal<\/p>\n Article 469<\/p>\n \u201cThere is an infringement of the Criminal Code where [the Code] has been infringed as regards the question of:<\/p>\n …<\/p>\n 3.\u00a0\u00a0whether there are circumstances which exclude criminal prosecution, and in particular … whether the case has been finally adjudicated upon;<\/p>\n …\u201d<\/p>\n COMPLAINT<\/strong><\/p>\n 12.\u00a0\u00a0The applicant complained under Article 4 of Protocol No. 7 to the Convention that he had been tried and punished twice for the same offence.<\/p>\n THE LAW<\/strong><\/p>\n Article 4 of Protocol No. 7<\/p>\n 13.\u00a0\u00a0The 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:<\/p>\n \u201c1.\u00a0\u00a0No 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.<\/p>\n …\u201d<\/p>\n 1.\u00a0\u00a0The parties\u2019 arguments<\/em><\/p>\n 14.\u00a0\u00a0The 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.<\/p>\n 15.\u00a0\u00a0The applicant maintained that by raising the relevant issue before the Constitutional Court he had properly exhausted domestic remedies.<\/p>\n 2.\u00a0\u00a0The Court\u2019s assessment<\/em><\/p>\n 16.\u00a0\u00a0In accordance with Article 35 \u00a7 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.\u00a0Romania [GC] (dec.), no. 42219\/07, \u00a7 84, 9 July 2015).<\/p>\n 17.\u00a0\u00a0The 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.,\u00a7 85).<\/p>\n 18.\u00a0\u00a0The 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, \u00a7 33, 11 December 2012). The same is true as to the nebis in idem rule.<\/p>\n 19.\u00a0\u00a0The Court notes that the nebis 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\u2019s 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.<\/p>\n 20.\u00a0\u00a0Moreover, an infringement of the nebis 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\u2019s grievances.\u00a0However, the applicant did not raise that issue in his appeal. Indeed, he raised it for the first time in his constitutional complaint.<\/p>\n 21.\u00a0\u00a0In 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 \u00a7 1 of the Convention (see Tarbuk, cited above, \u00a7 32; Zrili\u0107 v. Croatia, no. 46726\/11, \u00a7\u00a7 46-48, 3 October 2013; Horvati\u0107 v.\u00a0Croatia, no. 36044\/09, \u00a7 70, 17 October 2013; and Mari\u0107 v. Croatia, no.\u00a050132\/12, \u00a7 53, 12 June 2014). By not complying with these requirements, the applicant in the present case has not properly exhausted domestic remedies.<\/p>\n 22.\u00a0\u00a0Accordingly, the application must be rejected under Article\u00a035 \u00a7\u00a7\u00a01 and\u00a04 of the Convention for non-exhaustion of domestic remedies.<\/p>\n For these reasons, the Court, unanimously,<\/p>\n Declares the application inadmissible.<\/p>\n Done in English and notified in writing on 15 March 2018.<\/p>\n Renata Degener\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Ale\u0161 Pejchal
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n