FIRST SECTION

DECISION

Application no. 13769/15 Željko GREGAČEVIĆ against Croatia

The European Court of Human Rights (First Section), sitting on 5 October 2021 as a Chamber composed of:

Péter Paczolay, President, Ksenija Turković, Krzysztof Wojtyczek, Alena Poláčková, Raffaele Sabato, Lorraine Schembri Orland, Ioannis Ktistakis, judges, and Renata Degener, Section Registrar,

Having regard to the above application lodged on 13 March 2015,

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 Željko Gregačević, is a Croatian national, who was born in 1974 and lives in Čepin. He was represented before the Court by Mr P. Sabolić, a lawyer practising in Osijek.

2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4 . On 10 July 2012, in the case of Gregačević v. Croatia , no. 58331/09, the Court found that in the criminal proceedings against the applicant before the Osijek Municipal Court ( Općinski sud u Osijeku ) there had been a violation of Article 6 §§ 1 and 3 (b) of the Convention in that he had not been given adequate time and facilities for the preparation of his defence (see Gregačević v. Croatia , no. 58331/09, §§ 49-58, 10 July 2012). On the same day the applicant was notified of the judgment by a letter from the Court.

5 . The judgment became final on 10 October 2012. The applicant was informed about this fact by a letter from the Court dated 16 October 2012, which he received by post on 22 October 2012.

6. On 22 April 2013 and 25 September 2020, the Croatian Government submitted an action plan to the Committee of Ministers concerning the execution of the above-mentioned Court’s judgment. They indicated that, based on that judgment, the applicant had requested reopening of the criminal proceedings and that the criminal courts had declared his request inadmissible as being lodged out of time (see paragraphs 8-21 below). As regards the general measures, the Government indicated that in response to the Court’s findings, the Constitutional Court had aligned its practice with the relevant Convention standards to ensure that in similar cases defence rights were safeguarded at domestic level.

7. At the time of adoption of the present decision the procedure for supervising the execution of the Court’s judgment of 10 July 2012 was still pending before the Committee of Ministers.

8 . On 12 November 2012 the applicant, through his lawyer, requested reopening of the case based on the Court’s judgment of 10 July 2012 (see paragraph 4 above). He relied on Article 502 of the 2008 Code of Criminal Procedure (see paragraph 25 below).

9 . By a decision of 18 January 2013, the Osijek Municipal Court declared the applicant’s request inadmissible on the grounds that the Court’s judgment had become final on 10 October 2012, whereas he lodged his request for reopening on 12 November 2012, thus outside of the thirty-day statutory time-limit set out in Article 502 § 3 of the 2008 Code of Criminal Procedure, as amended by the 2011 Amendments (see paragraphs 5 and 8 above and paragraph 25 below).

10 . The applicant appealed. He mainly argued, relying on Article 574 of the 2008 Code of Criminal Procedure (see paragraph 27 below), that the 1997 Code of Criminal Procedure should have been applied mutatis mutandis in his case, including the rules on reopening (see paragraph 23 below), because the original proceedings were conducted under that Code. Mutatis mutandis application of the 1997 Code in his view entailed application of the rules which were more lenient for the accused, it being understood that the 1997 Code had not provided any time-limits for lodging requests for reopening (see paragraph 23 below).

11 . On 22 March 2013 the Osijek County Court ( Županijski sud u Osijeku ) dismissed the applicant’s appeal and upheld the Municipal Court’s decision of 18 January 2013 (see paragraphs 9-10 above). It held that the combined application of the 1997 and 2008 Codes of Criminal Procedure advocated by the applicant (see paragraph 10 above) was legally unacceptable and difficult to understand, that the 2008 Code was applicable to his request for reopening, and that the Municipal Court had correctly applied it by holding that his request had been lodged out of time.

12 . The applicant then challenged these decisions (see paragraphs 9 and 11 above) by lodging a constitutional complaint before the Constitutional Court ( Ustavni sud Republike Hrvatske ). Relying inter alia on Article 6 § 1 and Article 13 of the Convention he in substance repeated his appellate arguments regarding combined application of the 1997 and 2008 Codes of Criminal Procedure (see paragraph 10 above).

13 . By a decision of 18 February 2014, and relying on its earlier decision in a similar case, the Constitutional Court (a) declared inadmissible the applicant’s constitutional complaint in so far as it was based on Article 6 § 1 of the Convention, and (b) found a violation of Article 13 of the Convention, quashed the contested decisions of the criminal courts (see paragraphs 9 and 11 above) and remitted the case.

14 . Specifically, the Constitutional Court declared the applicant’s constitutional complaint partly inadmissible holding that Article 6 § 1 of the Convention was not applicable to proceedings initiated by requests for reopening of a case. At the same time, it found a violation of Article 13 of the Convention because it considered that the request for reopening had not been an effective remedy in the applicant’s case given that the criminal courts:

- had not given sufficient reasons for their finding that the relevant provisions of the 2008 Code of Criminal Procedure, including the statutory time-limit of thirty days, were applicable to the applicant’s request for reopening (see paragraphs 9 and 11 above);

- had failed to establish on which date the applicant had been informed or learned that the Court’s judgment, on which his request was based, had become final.

15 . Accordingly, the Constitutional Court instructed the criminal courts to re-examine the timeliness of the applicant’s request for reopening in line with its findings.

16 . In the fresh proceedings, the Osijek Municipal Court established that the applicant had received the information from the Court about the finality of the judgment on 22 October 2012 (see paragraph 5 above).

17 . Nevertheless, in a decision of 3 April 2014 the Municipal Court again declared the applicant’s request for the reopening of the case inadmissible. It again held that the thirty-day time-limit had to be calculated from the date on which the Court’s judgment had become final, namely from 10 October 2012 (see paragraph 5 above). Given that the request for reopening had been lodged on 12 November 2012 (see paragraph 8 above), it had been out of time. It added that, since the applicant had been informed of the finality of the Court’s judgment on 22 October 2012 (see paragraphs 5 and 16 above), whereas the time-limit in question had expired on 9 November 2012, he had evidently had enough time to lodge his request. No reasoning was provided as to why that court considered that the 2008 Code of Criminal Procedure (see paragraph 25 below) was applicable to the applicant’s request.

18 . The applicant again appealed. This time he only argued that the relevant starting date for calculating the thirty-day statutory time-limit for lodging requests for reopening was the day on which he had been informed that the Court’s judgment of 10 July 2012 had become final, namely, 22 October 2012 (see paragraph 5 above). By holding otherwise, the Municipal Court had disregarded the Constitutional Court’s decision (see paragraphs 13-15 above).

19 . By a decision of 13 June 2014 the Osijek County Court dismissed the applicant’s appeal and upheld the first-instance decision (see paragraphs 17-18 above). It endorsed the reasons given by the Municipal Court and dismissed the applicant’s argument that he had not had enough time to prepare the request for reopening as some time had to be spent on translating the Court’s judgment.

20 . The applicant then lodged a constitutional complaint. He in substance repeated his appellate arguments (see paragraph 18 above) and again relied, inter alia , on Article 6 § 1 and Article 13 of the Convention.

21 . In a decision of 13 November 2014, the Constitutional Court declared the applicant’s constitutional complaint inadmissible. It held that the case did not raise a constitutional issue, without giving any further reasons. That decision was served on the applicant’s representative on 19 November 2014.

RELEVANT LEGAL FRAMEWORK

22 . Under Croatian law of criminal procedure remedies are classified as ordinary or extraordinary depending on whether they can be lodged against judgments or decisions which acquired the force of res judicata . An appeal is the only ordinary remedy. Extraordinary remedies are (a) a request for extraordinary review of a final judgment (which is akin to an appeal on points of law or cassation appeal in other jurisdictions, see Maresti v. Croatia , no. 55759/07, § 21-28, 25 June 2009), (b) a request for the protection of legality (a remedy open only to the Principal State Attorney), and (c) a request for reopening of the proceedings.

23 . The relevant provision of the Code of Criminal Procedure of 1997 ( Zakon o kaznenom postupku , Official Gazette nos. 110/97 with subsequent amendments), which was in force between 1 January 1998 and 31 December 2008, provided as follows:

Article 413

“The provisions ... concerning the reopening of criminal proceedings shall be applicable also in the case where a request for review of a final judicial decision has been lodged based ... on a decision of the European Court of Human Rights which concerns one of the grounds for reopening of criminal proceedings or [grounds] for extraordinary review of a final judgment.”

24. That Code did not set out a time-limit for lodging a request for reopening based on a judgment by the Court nor did it prescribe a general time-limit for lodging requests for reopening. However, certain time-limits were set depending on specific grounds for reopening.

(a) Provisions governing reopening of proceedings

25 . The relevant provision of the Code of Criminal Procedure of 2008 governing reopening of criminal proceedings based on a judgment by the Court ( Zakon o kaznenom postupku , Official Gazette nos. 152/08 with subsequent amendments), as in force at the material time (that is, as amended by the 2011 Amendments which entered into force on 21 July 2011), provided as follows:

Article 502

“...

(2) The provisions concerning the reopening of criminal proceedings shall be applicable also in the case where a request for review of a final judicial decision was submitted on the basis of a final judgment of the European Court of Human Rights whereby a violation of the rights and freedoms under the Convention for the Protection of Human Rights and Fundamental Freedoms had been found.

(3) A request for the reopening of proceedings on the basis of a final judgment of the European Court of Human Rights can be lodged within thirty days from the date on which the judgment of the European Court of Human Rights becomes final.”

26. Other relevant provisions of the 2008 Code of Criminal Procedure governing reopening of criminal proceedings read as follows:

Article 501

“(1) Criminal proceedings terminated by a final judgment may be reopened to the benefit of the convict ...:

1) if it is proven that the judgment was based on a false document or recording, or the false testimony of a witness, expert witness or interpreter;

2) if the judgment resulted from a criminal offence committed by the State Attorney, judge, lay judge, investigator or person who collected evidence;

3) if new facts or new evidence are presented which alone or in relation to previous evidence may lead to the acquittal of the person who was convicted or to his or her conviction on the basis of a more lenient provision of criminal law;

4) if a person was convicted more than once for the same offence, or if more than one person was convicted for the same offence where that offence could only have been committed by one person or by some of them;

5) if, in the case of a conviction for a continuous act or any other offence which under the law encompasses several acts of the same kind, new facts or new evidence are presented indicating that the convicted person did not commit an act included in the offence at issue, provided that these facts are likely to substantially affect the penalty.

(2) ...”

Article 505(1)

“(1) Request for the reopening of criminal proceedings shall be decided by a panel of the court which in the earlier proceedings adjudicated in the first-instance.”

Article 506

“(1) The court shall declare the request inadmissible if, on the basis of the request itself and the case file of the earlier proceedings, it finds that the request has been lodged by an unauthorised person or that the statutory conditions for the reopening of the proceedings are not met, that the same facts and evidence have already been raised in an earlier request for the reopening of the proceedings which has been dismissed by way of a final decision, if it is clear that the facts and evidence do not warrant the reopening, [or if the request has not been sufficiently substantiated].

(2) If the request is not declared inadmissible, the court shall forward it to the other party, which has the right to reply to the request within eight days. When the court receives the reply to the request, or if there is no reply within the relevant period, the president of the panel shall, alone or through an investigating judge, examine the facts and obtain the evidence referred to in the request.

(3) ... In the case of an offence prosecuted ex officio , the president of the panel shall order that the case file be forwarded to the State Attorney, who shall return the case file together with his or her opinion.”

Article 507

“(1) When the State Attorney returns the case file, the court shall, unless it decides to make a further inquiry based on the results of its examination, allow the request and the reopening of the criminal proceedings or dismiss the request if the new evidence does not warrant the reopening of the criminal proceedings.

...

(3) In a decision allowing the reopening of criminal proceedings, the court shall specify whether the trial should be reopened, or the case returned to the indictment stage.

...

Article 508

“(1) The same provisions of substantive law applicable in the previous proceedings, save for the provisions concerning prescription periods, shall be applicable in the new reopened proceedings. In the new proceedings the court shall not be bound by the decisions it rendered in the previous proceedings.

...

(5) In its judgment rendered in the new proceedings, the court shall set aside the previous judgment partially or in whole, or rule that it remain in force. ...”

(b) Transitional provisions

27 . The relevant transitional provision of the 2008 Code of Criminal Procedure reads:

Article 574

“...

(2) If prior to the entry into force of this Code a decision was adopted against which a legal remedy is available under the legislation [then in force] ... the provisions of that legislation shall be applicable [to the proceedings concerning the remedy in question], unless otherwise provided under this Code.

(3) Articles 497-508 of this Code shall apply mutatis mutandis to requests for the reopening of criminal proceedings lodged under the [earlier] Code of Criminal Procedure ...”

28 . A comparative study of legislation and practice in forty-three member States of the Council of Europe conducted in 2016 for the purposes of the Grand Chamber case Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 46, 11 July 2017) showed that the time-limit for lodging a request for review or reopening of proceedings based on the Court’s judgment varied from State to State. In some States, time ran from the date on which the judgment of the Court became final: 90 days in Switzerland; 6 months in Belgium, the Czech Republic, Lithuania, Monaco; and 1 year in Spain. In other States, the time-limit was calculated as from the date of the Court’s judgment or its publication: 3 months in Romania; 6 months in Estonia; 1 year in France and the Republic of Moldova. Finally, in a number of States the time-limit was calculated as from the date on which the Court’s judgment had been notified or had become known to the applicant: 3 months in Andorra, Armenia, the Netherlands, Serbia and Ukraine; and 1 year in Turkey.

29. In another group of Member States, there was no time-limit for such a request (Austria, Bosnia and Herzegovina, Greece, Hungary, Italy, Latvia, Luxembourg, North Macedonia, Norway, Poland, the Russian Federation and Slovakia).

COMPLAINTS

30 . The applicant complained, under Article 6 § 1, Article 13 and Article 46 § 1 of the Convention, of the domestic courts’ decision to declare inadmissible his request for reopening based on the Court’s final judgment.

THE LAW

31 . The applicant complained that the way the domestic courts had calculated the relevant statutory time-limit in his case and the resultant decision to declare his request for reopening, based on the Court’s final judgment, inadmissible as being out of time, had been in breach of his right to a fair trial guaranteed by Article 6 § 1 and the right to an effective remedy guaranteed by Article 13 of the Convention. Those Articles in the relevant part read as follows:

Article 6 (right to a fair hearing)

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

Article 13 (right to an effective remedy)

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

32 . In his reply of 14 October 2015 to the Government’s observations the applicant for the first time complained that the domestic courts’ decision to declare inadmissible his request for reopening had also entailed a violation of Article 46 § 1 of the Convention. The relevant part of that Article reads as follows:

“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.

2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”

33 . The Government argued that the applicant’s complaint under Article 6 § 1 was incompatible ratione materiae with the provisions of the Convention and that it was, in any event, manifestly ill-founded.

34 . In so far as the applicant complained of the domestic courts’ refusal to reopen the criminal proceedings against him amounted to a violation of Article 6 of the Convention, the Government, relying on Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 42, ECHR 2015), argued that the Article in question did not apply to proceedings concerning a failed request for the reopening of a case, because such proceedings did not normally involve the determination of “civil rights and obligations” or of “any criminal charge”. Article 6 of the Convention was likewise inapplicable to the proceedings initiated by a request for reopening based on the Court’s judgment (the Government referred to Öcalan v. Turkey (dec.), no. 5980/07, 6 July 2010).

35. The only exceptions were cases in which deciding requests for reopening actually entailed re-examination of a case on the merits. That was not so in the present case because the applicant’s request for reopening had been declared inadmissible as being lodged outside the statutory time-limit (see paragraphs 17 and 19 above).

36 . To the extent that the applicant complained that the refusal to reopen the proceedings had amounted to non-execution of the Court’s judgment of 10 July 2012 (see paragraph 32 above), the Government submitted that the execution of the Court’s judgments was in the jurisdiction of the Committee of Ministers and hence fell outside the Court’s jurisdiction ratione materiae (unless raised in the context of the infringement procedure provided for in Article 46 §§ 4 and 5 of the Convention).

37. If the Court were to hold that Article 6 § 1 of the Convention was applicable to the present case, the Government argued that the domestic courts’ decision to declare the applicant’s request for reopening inadmissible had not been in breach of that Article. In this regard the Government first provided examples of domestic case-law as a proof that domestic criminal courts had consistently applied the 2008 Code of Criminal Procedure (see paragraph 25 above) to cases similar to that of the applicant.

38. The Government further submitted that Article 502 § 3 of that Code clearly specified that the time-limit for lodging requests for reopening based on a judgment by the Court had to be calculated from the day such judgment had become final. The Constitutional Court in its first decision (see paragraphs 13-15 above) in the applicant’s case had quashed the decisions of the criminal courts and instructed them (a) to give more detailed reasons as to why they had considered that provision applicable, and (b) to establish the date on which the applicant had been informed of the finality of the Court’s 2012 judgment with a view to ascertaining whether in the given circumstances he had had enough time to comply with the time ‑ limit in question. Contrary to the applicant’s arguments (see paragraph 42 below), in its second decision (see paragraph 21 above) in the case the Constitutional Court had not departed from its earlier decision. Rather, from that second decision of 13 November 2014 it could be inferred that the Constitutional Court had been satisfied with the reasons given by the criminal courts in their subsequent decisions of 3 April and 13 June 2014 and that it had agreed with their finding in the second round of the proceedings that the applicant had had enough time to lodge his request for reopening within the statutory time-limit (see paragraphs 16-17, 19 and 21 above).

39. The applicant did not comment on the Government’s objection regarding compatibility ratione materiae (see paragraphs 34-36 above).

40 . As regards the statutory time-limit for lodging his request for reopening, he first reiterated his argument advanced before the domestic courts that the relevant rules of domestic law warranted combined application of 1997 and 2008 Codes of Criminal Procedure in a manner which was more lenient for the accused, it being understood that the 1997 Code had not provided any time-limits for lodging requests for reopening (see paragraph 10 above).

41. The applicant then went on to argue that, if the thirty-day statutory time-limit prescribed in the 2008 Code of Criminal Procedure, as amended by the 2011 Amendments (see paragraph 25 above), was applicable, it should not have been calculated from the day the Court’s 2012 judgment had become final on 9 October 2012 but from the day he had been informed of its finality on 22 October 2012 (see paragraph 5 above). By calculating the time-limit in question from the earlier date, the domestic courts had significantly shortened it to an extent which made it impossible for him to comply with it. Specifically, he submitted:

- that he was living in Germany where he had fled from criminal prosecution in Croatia, which made his contacts with his advocate difficult as they had often been contacting each other in writing through his mother as an intermediary,

- that it was only on 9 November 2012 that his advocate, who did not speak English, could read the Court’s 2012 judgment as it had taken some time to collect the money to translate it.

42 . The applicant further submitted that in their decisions of 3 April and 13 June 2014 (see paragraphs 17 and 19 above) the criminal courts had, without giving any reasons, ignored the Constitutional Court’s instructions provided in its decision of 18 February 2014 (see paragraphs 13-15 above). What is more, the Constitutional Court had itself, in its subsequent decision of 13 November 2014 (see paragraph 21 above) departed from the views expressed in its earlier decision without giving any reasons. In his view such inconsistent decision-making in the same case was contrary to the principle of legal certainty.

43 . For these reasons (see paragraphs 40-42 above) the applicant argued that there had been a violation of his right of access to court and/or the right to a reasoned decision.

44 . In examining the admissibility of the applicant’s complaint under Article 6 § 1 of the Convention (see paragraph 31 above), the Court must first ascertain whether it has jurisdiction to consider it without encroaching on the prerogatives of the respondent State and the Committee of Ministers under Article 46 of the Convention (see paragraph 32 above), and if so, whether the safeguards of Article 6 of the Convention are applicable to the proceedings in question (see Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 46, 11 July 2017, and Munteanu v. Romania (dec.), no. 54640/13, 11 February 2020).

(a) Whether Article 46 of the Convention precludes the examination by the Court of the complaint under Article 6 § 1 of the Convention

45 . The relevant principles concerning the execution of the Court’s judgments and the Court’s competence to examine a new issue undecided by the previous judgment have been summarised in the case of Moreira Ferreira , cited above, § 47:

“(a) Findings of a violation in its judgments are essentially declaratory and, by Article 46 of the Convention, the High Contracting Parties undertook to abide by the final judgments of the Court in any case to which they were parties, execution being supervised by the Committee of Ministers ...

(b) The Committee of Ministers’ role in this sphere does not mean, however, that measures taken by a respondent State to remedy a violation found by the Court cannot raise a new issue undecided by the judgment and, as such, form the subject of a new application that may be dealt with by the Court. In other words, the Court may entertain a complaint that a retrial at domestic level by way of implementation of one of its judgments gave rise to a new breach of the Convention ...

(c) On that basis, the Court has found that it had the competence to entertain complaints in a number of follow-up cases, for example where the domestic authorities had carried out a fresh examination of the case by way of implementation of one of the Court’s judgments, whether by reopening the proceedings or by initiating an entirely new set of proceedings ...

(d) It transpires from the Court’s case-law that the determination of the existence of a ‘new issue’ very much depends on the specific circumstances of a given case and that distinctions between cases are not always clear-cut (...). The powers assigned to the Committee of Ministers by Article 46 to supervise the execution of the Court’s judgments and assess the implementation of measures adopted by States under that Article are not encroached on where the Court has to deal with relevant new information in the context of a fresh application ...”

46 . The Court has further pointed out that in this context a reference should be made to the criteria established in its case-law concerning Article 35 § 2 (b), by which an application is to be declared inadmissible if it “is substantially the same as a matter that has already been examined by the Court ... and contains no relevant new information” (see Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, § 63, ECHR 2009).

47 . The Court must therefore ascertain whether the applicant’s complaint under Article 6 § 1 of the Convention (see paragraph 31 above) is essentially the same as the complaint in respect of which the Court has found a violation in its 2012 judgment (see paragraph 4 above) and thus concerns only the execution of that judgment, or it contains relevant new information constituting a new complaint possibly entailing a fresh violation of Article 6.

48 . The Court notes that the applicant’s present complaint concerns the decision of the criminal courts to declare inadmissible his request for reopening based on the Court’s 2012 judgment as being lodged outside the statutory time-limit (see paragraph 4, 17 and 19 above). Although that decision does concern the execution of the Court’s 2012 judgment, the Court notes that it is new in relation to the domestic proceedings examined in that judgment, and is subsequent to those proceedings (see, mutatis mutandis , Moreira Ferreira , cited above, § 54).

49. The applicant did not claim that the alleged violation of Article 6 § 1 in his case consisted of the criminal courts’ failure to give effect to the Court’s 2012 judgment. Rather, he submitted that the violation complained of had occurred because those courts had calculated the relevant statutory time-limit in a manner which resulted in his request being declared inadmissible, and because the Constitutional Court had not given any reasons as to why it had departed from its earlier decision in the case (see paragraphs 31 and 40-43 above).

50. The Court further notes that in its previous judgment in the applicant’s case it found a violation of Article 6 §§ 1 and 3 (b) of the Convention in that he had not been afforded adequate time and facilities for the preparation of his defence (see paragraph 4 above) whereas his complaint under Article 6 § 1 in the present case concerns access to court and/or the right to a reasoned decision (see paragraph 31 and 40-43 above). These two complaints are therefore not the same (see paragraph 46-47 above).

51 . The Court also notes that the decision of the criminal courts to declare the applicant’s request for reopening inadmissible was based on (new) grounds capable of giving rise to a (fresh) violation of Article 6 § 1 of the Convention.

52 . In this connection the Court reiterates that the right of access to a court entails the entitlement to receive adequate notification of judicial decisions, particularly in cases where an appeal might be sought within a specified time-limit (see, for example, Zavodnik v. Slovenia , no. 53723/13, § 71, 21 May 2015). The Court has also held that rules setting time-limits must not be applied in a way which prevented litigants from using an available remedy (see, among many other authorities, Zvolský and Zvolská v. the Czech Republic , no. 46129/99, § 51, ECHR 2002 ‑ IX). Therefore, in a number of cases the Court, in order to satisfy itself that the right of access to court had not been impaired, went on to examine whether the calculation of the time-limit in question could have been regarded as foreseeable for the applicant (see, for example, Osu v. Italy , no. 36534/97, § 35, 11 July 2002, and Melnyk v. Ukraine , no. 23436/03, § 26, 28 March 2006). The Court has likewise stressed that Article 6 § 1 obliged the courts to give sufficient reasons for their decisions (see, among many other authorities, Hiro Balani v. Spain , 9 December 1994, § 27, Series A no. 303 ‑ B), and held that situation where the same court reached conflicting decisions in the same case without giving any reasons could lead to a breach of the principle of legal certainty inherent in that Article (see Vusić v. Croatia , no. 48101/07, §§ 38-46, 1 July 2010).

53. It thus cannot be said that the decision of the criminal courts in the present case could not even potentially constitute a violation of Article 6 § 1 of the Convention, it being understood that there were evidently some doubts at the domestic level as to which legislation was applicable and from which moment the time-limit applied had to be calculated (see paragraph 14 above).

54 . The present case is thus to be distinguished from those in which such distinct violation of Article 6 was either not alleged or could not arise in relation to the new proceedings brought by the applicants at the domestic level (see Bochan , cited above, § 37, and contrast with Steck-Risch and Others v. Liechtenstein (dec.), no. 29061/08, 11 May 2010, and Schelling v. Austria (no. 2) (dec.), no. 46128/07, 16 September 2010).

55. In view of the foregoing (see paragraphs 45-54 above), there is no risk that by examining the criminal courts’ decision for its compliance with Article 6 § 1 the Court could encroach on the prerogatives of the respondent State and the Committee of Ministers under Article 46 of the Convention (see paragraph 44 above).

56 . That being so, the question whether the decision by the criminal courts to declare inadmissible the applicant’s request for reopening was compatible with Article 6 § 1 of the Convention can be examined separately from the aspects relating to the execution of the judgment delivered by the Court in 2012.

(b) Whether the applicant’s new complaint is compatible ratione materiae with Article 6 of the Convention

57 . The Court considers that in the present case it may leave this issue open because, even assuming applicability of Article 6 § 1 of the Convention to the proceedings initiated by the applicant’s request for reopening, this complaint is in any event inadmissible for the reasons set out below (see paragraphs 58-75).

(c) Whether the applicant’s new complaint is manifestly ill-founded

58 . The Court notes that under Article 6 § 1 of the Convention the applicant complained of a violation of his right of access to court and/or the right to a reasoned decision (see paragraphs 30-31 and 43 above). The Court’s case-law which it considers the most pertinent in the applicant’s case is summarised in paragraph 52 above and paragraph 59 below.

(i) As regards the alleged violation of the right of access to a court

59 . The rules governing the time-limits to be complied with in lodging legal remedies are aimed at ensuring a proper administration of justice and compliance, in particular, with the principle of legal certainty (see, for example, Miragall Escolano and Others v. Spain , no. 38366/97, §§ 33 and 36, ECHR 2000-I, and Běleš and Others v. the Czech Republic , no. 47273/99, § 49, ECHR 2002‑IX). What the Court needs to ascertain in each case is whether the manner in which these rules were applied is compatible with the Convention.

60. In the applicant’s case the domestic courts calculated the relevant thirty-day statutory time-limit for lodging a request for reopening based on a judgment by the Court from the day the judgment in the first Gregačević case had become final on 10 October 2012 rather than from 22 October 2012 when the applicant had been notified of the finality of that judgment (see paragraphs 5, 17, 19, 21 and 25 above).

61. As a consequence, the thirty-day statutory time ‑ limit for the applicant to lodge a request for reopening based on the Court’s judgment expired eleven days earlier. His request for reopening lodged on 12 November 2012 was thus found to have been brought out of time and declared inadmissible (see paragraphs 8, 17 and 19 above).

62. In this regard the Court notes that Article 502 § 3 of the 2008 Code of Criminal Procedure unequivocally provides that a request for the reopening of proceedings on the basis of a judgment by the Court can be lodged within thirty days from the date on which the judgment becomes final, and not from the date on which the party requesting reopening was notified of its finality (see paragraph 25 above).

63. The date on which a judgment by the Court becomes final was at the material time taken as the starting date for the calculation of the statutory time-limits for lodging similar remedies also in a number of other Contracting States (see paragraph 28 above).

64. It thus cannot be said that setting the date of finality of a judgment by the Court as the starting date for the calculation of the time-limit provided in Article 502 § 3 of the 2008 Code of Criminal Procedure is per se incompatible with the Convention. Nor can it be argued that the way the said time-limit was calculated in the applicant’s case had been unforeseeable for him (see paragraph 52 above).

65. Furthermore, the Court notes that from 22 October 2012 when the applicant had been notified of the finality of the Court’s judgment in his case (see paragraph 5 above) and 9 November 2012 when the time-limit in question expired (see paragraph 17 above), the applicant had eighteen days to prepare and lodge his request for reopening.

66. The Court thus cannot but agree with the domestic courts’ finding that he had enough time to comply with that time-limit (see paragraph 17 above).

67. This conclusion is further reinforced by the fact that the text of the Court’s judgment was available to the applicant three months before the judgment became final (see paragraph 4-5 above) and that he could have therefore also used that period to prepare his request for reopening.

68. In view of the foregoing, it cannot be said that the way the time-limit for lodging a request of reopening was calculated in the applicant’s case prevented him from using that remedy (see paragraph 52 above).

(ii) As regards the alleged violation of the right to a reasoned decision

69 . The applicant argued that the Constitutional Court in its decision of 13 November 2014 had departed from the views expressed in its earlier decision in the case without giving any reasons (see paragraphs 13-15, 21 and 42-43 above).

70. In this regard the Court first notes that in the second round of the proceedings before the domestic courts (see paragraphs 16-21 above) the applicant no longer pursued his earlier argument that the thirty day statutory time-limit set out in Article 502 § 3 of the 2008 Code of Criminal Procedure was not applicable to his request for reopening (see paragraphs 10 and 12 above) but focused instead on arguing that the time-limit in question had not been properly calculated (see paragraphs 18 and 20 above).

71. The issue which code of criminal procedure was applicable to the applicant’s request for reopening was therefore not examined by the criminal courts in their decisions of 3 April and 13 June 2014 (see paragraphs 17 and 19 above). It is therefore understandable that the Constitutional Court in its decision of 13 November 2014 (see paragraph 21 above) did not sanction those courts for not giving sufficient reasons regarding that issue, as it had done in its first decision in the case (see paragraphs 13-15 above).

72. In so far as the applicant’s above argument (see paragraph 69 above) may be understood so that the Constitutional Court departed from its earlier views regarding the calculation of the statutory time-limit in question, the Court considers that this argument seems to be based on the incorrect assumption that in its earlier decision that court held that the day of the notification of a judgment by the Court must be taken as a starting date for calculating the said time-limit.

73. However, the Constitutional Court in its decision of 18 February 2014 (see paragraphs 13-15 above) did not call into question the legislative solution setting the date of finality of a judgment by the Court as the starting date for the calculation of the said time-limit. Rather, it merely instructed the criminal courts to ascertain on which date the applicant had been informed or learned that the Court’s judgment, on which his request was based, had become final (ibid.). It did so in order to verify whether in the given circumstances the applicant had enough time to lodge his request for reopening.

74. In the second round of proceedings the criminal courts complied with that instruction and established that the applicant had had enough time to lodge his request (see 16-17 and 19 paragraph). From its subsequent decision of 13 November 2014 it may be inferred that the Constitutional Court accepted those findings and thus declared the applicant’s constitutional complaint inadmissible (see paragraph 21 above).

75 . It cannot therefore be argued that the Constitutional Court departed from its earlier decision in the case.

(iii) Conclusion

76 . It follows that this complaint is inadmissible under Article 35 § 3 (a) of the Convention as manifestly ill-founded and must be rejected pursuant to Article 35 § 4.

77. The Court reiterates that Article 13 requires a remedy in domestic law only where an individual has an “arguable claim” that one of his rights or freedoms set forth in the Convention has been violated (see, for example, Boyle and Rice v. the United Kingdom , judgment of 27 April 1988, Series A no. 131, p. 23, § 52).

78. In this connection the Court refers to its above findings (see paragraphs 58-76) according to which the applicant’s complaint under Article 6 § 1 is manifestly ill-founded. It follows that his related complaint under Article 13 cannot be considered “arguable” for the purposes of Article 13 of the Convention.

79. It is thus also inadmissible under Article 35 § 3 (a) of the Convention as manifestly ill-founded and must be rejected pursuant to Article 35 § 4.

80 . The Court first notes that it is doubtful whether Article 46 § 1 may be regarded as conferring upon an applicant a right that can be asserted in proceedings originating in an individual application (see Sidabras and Others v. Lithuania , nos. 50421/08 and 56213/08, § 103, 23 June 2015, and The United Macedonian Organisation Ilinden – PIRIN and Others v. Bulgaria (no. 2) , nos. 41561/07 and 20972/08, § 66, 18 October 2011). Although the Court can examine whether measures taken by a respondent State in execution of one of its judgments are compatible with the substantive clauses of the Convention, it has consistently ruled that it does not have jurisdiction to verify, by reference to Article 46 § 1, whether a Contracting Party has complied with the obligations imposed on it by one of the Court’s judgments (see Sidabras and Others , cited above, § 103, with further references to the Court’s case-law).

81. In any event, the Court, in view of its findings above (see paragraphs 45-56), considers that the issues that might arise under Article 46 § 1 of the Convention in the present case are not closely intertwined with those the applicant complained of under Article 6 § 1, and that these two complaints could thus be examined separately (compare and contrast with Sidabras and Others , cited above, § 105, 23 June 2015, and The United Macedonian Organisation Ilinden – PIRIN and Others , cited above, § 67).

82. The Court however reiterates that complaints essentially pointing to a failure either to execute the Court’s judgment or to redress a violation already found by the Court in any event fall outside the Court’s competence ratione materiae (see Bochan , cited above, § 35), rather being subject to the supervision of execution by the Committee of Ministers under Article 46 of the Convention.

83. It follows that, in so far as the applicant may be entitled to rely on Article 46 § 1 of the Convention, his complaint under that Article (see paragraph 32 above) is inadmissible as being incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 thereof.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 28 October 2021.

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Renata Degener Péter Paczolay Registrar President