SECOND SECTION

DECISION

Application no . 29555/11 S tipan JURIŠIĆ against Croatia

The European Court of Human Rights (Second Section), sitting on 23 August 2016 as a Chamber composed of:

Işıl Karakaş , President, Julia Laffranque , Paul Lemmens, Valeriu Griţco , Ksenija Turković , Stéphanie Mourou-Vikström , Georges Ravarani , judges,

and Stanley Naismith, Section Registrar,

Having regard to the above application lodged on 28 April 2011,

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 Stipan Jurišić , is a Croatian national who was born in 1962 and lives in Split. He was represented before the Court by Mr J. Franceschi , a lawyer practising in Split.

2. The Croatian Government (“the Government”) were represented by their Agent, Ms Å . Sta ž nik .

A. The circumstances of the case

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

4. The applicant was a senior military officer in the Croatian Army, holding the rank of brigadier.

5. On 7 June 2006 an investigating judge of the Split County Court ( Ž upanijski sud u Splitu ) opened a criminal investigation against the applicant and another individual on suspicion of abuse of power and authority related to the unlawful misappropriation of goods.

6. The applicant appealed against the investigating judge ’ s decision before a three-judge panel of the Split County Court. On 29 August 2006 the panel dismissed his appeal and upheld the investigating judge ’ s decision on opening an investigation into his alleged abuse of power and authority.

7. On 28 September 2006 the competent military prosecutor indicted the applicant in the Split Military Disciplinary Court ( Vojnostegovni sud u Splitu ) on the grounds that the opening of a criminal investigation against him suggested that there was a reasonable suspicion that he had committed a criminal offence which could be prosecuted ex officio , which in itself amounted to a disciplinary offence under section 58 of the Military Service Act (see paragraph 18 below).

8. On 13 October 2006 the Split Military Disciplinary Court found the applicant guilty under section 58 of the Military Service Act because there was a reasonable suspicion that he had committed an offence for which criminal proceedings had been instituted and sentenced him to a reduction in rank.

9. On 30 January 2007, on appeal by the military prosecutor, the Higher Military Disciplinary Court ( Vi š i vojnostegovni sud ), as the appellate court, upheld the applicant ’ s disciplinary conviction and dismissed him from military service.

10. After the completion of the criminal investigation by the investigating judge of the Split County Court, on 17 May 2007 the Split Municipal State Attorney ’ s Office ( Op ć insko državno odvjetni š tvo u Splitu ) indicted the applicant and another individual in the Split Municipal Court ( Op ć inski sud u Splitu ) on charges of abuse of power and authority.

11. On 13 May 2009 the Split Municipal State Attorney ’ s Office dropped all charges against the applicant owing to a lack of evidence and on the same day the Split Municipal Court dismissed the charges against him.

12. On 16 June 2009, following the dismissal of the charges against him in the criminal proceedings, the applicant sought to reopen the disciplinary proceedings before the Higher Military Disciplinary Court. He argued that the criminal charges against him had been dismissed, which warranted a re-examination of his disciplinary conviction.

13. On 1 September 2009 the Higher Military Disciplinary Court dismissed the applicant ’ s application on the grounds that the dismissal of the charges against him in the criminal proceedings could not lead to a reopening of the disciplinary case.

14. The applicant challenged that decision before the Administrative Court ( Upravni sud Republike Hrvatske ). He submitted that the competent prosecutor in the criminal proceedings had dropped the charges against him, which suggested that the suspicion of him committing a criminal offence had been unjustified. In his view, the final judgment of the criminal court to dismiss the charges against him had amounted to a new fact which had shown that there had been no reasonable suspicion that he had committed an offence. Accordingly, the Higher Military Disciplinary Court ’ s refusal to reopen the case had deprived him of an effective means to challenge his unjustified dismissal from military service.

15. On 10 March 2010 the Administrative Court dismissed the applicant ’ s complaints as ill-founded, upholding the decisions of the lower disciplinary bodies.

16. On 26 May 2010 the applicant lodged a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ), relying on Article 18 of the Constitution (right to appeal), Article 28 (presumption of innocence), Article 29 (right to a fair trial), and Article 31 ( ne bis in idem ). He submitted that his disciplinary conviction and dismissal from military service had been based solely on the fact that he had been under criminal investigation. In his view, that had been unreasonable, particularly because all the charges against him had been dismissed in the subsequent criminal proceedings. The applicant thus contended that the disciplinary case should have been reopened and re-examined in order to remove the effects of the disciplinary conviction, in accordance with the principle of the presumption of innocence. However, given that his request to reopen the disciplinary proceedings had been dismissed, the applicant considered that there had been a violation of his constitutional rights to an effective appeal, a fair trial, the presumption of innocence and not be prosecuted and punished twice for the same offence.

17. On 28 October 2010 the Constitutional Court declared the applicant ’ s constitutional complaint inadmissible on the grounds that a case on reopening proceedings did not involve a determination of the applicant ’ s rights and obligations.

B. Relevant domestic law

18. 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:

Article 35

“Everyone has the right to respect for and the legal protection of his or her private and family life, dignity, reputation and honour.”

19. The relevant provision of the Military Service Act ( Zakon o slu ž bi u oru ž anim snagama Republike Hrvatske , Official Gazette no. 33/2002, 175/2003 and 136/2004) which was applicable at the time, provided as follows:

Section 58

“Disciplinary offences are:

...

- the commission of a criminal offence which can be prosecuted ex officio , or the existence of a reasonable suspicion that such an offence has been committed, ...”

COMPLAINTS

20. The applicant complained of the adverse effects on his private and professional life of his allegedly unreasonable and unjustified dismissal from military service, and the lack of an effective remedy in that regard, contrary to Articles 8 and 13 of the Convention.

THE LAW

21. Complaining of the adverse effects of his allegedly unreasonable and unjustified dismissal from military service, and the lack of an effective remedy in that regard, the applicant raised an issue under Articles 8 and 13 of the Convention, which, in so far as relevant, read as follows:

Article 8

“1. Everyone has the right to respect for his private ... life, ...“

Article 13

“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.”

A. The parties ’ arguments

22. The Government contended in particular that the applicant had failed to exhaust domestic remedies as he had not complained, either expressly or in substance, of a violation of his right to respect for his private life before any of the competent domestic authorities. Moreover, he had failed to ask for pardon for his conviction or to use any of the other available extraordinary remedies in the administrative disciplinary proceedings. The Government also argued that there had been no reason for the applicant to lodge a constitutional complaint with the Constitutional Court and that therefore, by waiting for a decision from the Constitutional Court, he had failed to submit his complaints to the Court within the six-month time-limit. In any case, in the Government ’ s view, there had been no violation of the applicant ’ s right to respect for his private life. Likewise, given that he had availed himself of the possibility to seek the reopening of the disciplinary case, he had been provided with an effective domestic remedy.

23. The applicant maintained that he had properly exhausted all available and effective domestic remedies as he had availed himself of all the legal options available under the relevant domestic law. The applicant contended that in the particular circumstances of his case the only option available to him to protect his rights had been to seek to have the disciplinary case reopened on the basis of the dismissal of the charges against him in the criminal proceedings. In his view, given that it had been impossible to obtain a reopening of the disciplinary case and the annulment of his dismissal, there had been a violation of his right to respect for his private life and to his right to an effective domestic remedy.

B. The Court ’ s assessment

24. The Court finds it unnecessary to address all of the Government ’ s objections because the complaints are in any event inadmissible for the following reasons.

25. The Court notes at the outset that following the dismissal of the charges against the applicant in the criminal proceedings before the Split Municipal Court, he sought a reopening of the disciplinary proceedings which had ended on 30 January 2007. He argued in particular that his dismissal in those proceedings, related to the fact that there had been a reasonable suspicion that he had committed a criminal offence, should be re-examined following the dismissal of the charges in the criminal proceedings, which had shown that such a suspicion had been unjustified (see paragraph 12 above).

26. In this connection the Court refers to its case-law, which shows that an application for a retrial or other, similar extraordinary remedy cannot, as a general rule, be taken into account for the purpose of applying Article 35 of the Convention (see, for instance, Berdzenishvili v. Russia ( dec. ), no. 31697/03 , ECHR 2004 ‑ II extracts). However, in the particular circumstances of the present case that was the only reasonable avenue of approach for the applicant to allow the authorities to address the alleged violation of his rights related to his allegedly unjustified dismissal (compare Melis v. Greece , no. 30604/07, §§ 18-19, 22 July 2010). The Court also notes that the respondent Government suggested that the possibility of reopening the disciplinary proceedings represented an effective legal option in the domestic system (see paragraph 22 above). The Court therefore sees no reason to call into question the relevancy of the use of that option in the particular circumstances of the present case.

27. As regards the Government ’ s argument that the applicant failed to complain, either expressly or in substance, of a violation of his right to respect for his private life before any of the competent domestic authorities, the Court reiterates that Article 35 § 1 requires that the complaints intended to be made subsequently in Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should be used. Where an applicant has failed to comply with these requirements, his or her application should in principle be declared inadmissible for failure to exhaust domestic remedies (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others , § 72, 25 March 2014).

28. With regard to the question of exhaustion of domestic remedies in Croatia, the Court has held that before bringing complaints against Croatia to the Court, in order to comply with the principle of subsidiarity, applicants should present their arguments before the national authorities, in particular the Constitutional Court as the highest Court in Croatia, and thus give them the opportunity of remedying the situation (see Habulinec and Filipovi ć v. Croatia ( dec. ), no. 51166/10, § 31, 4 June 2013, and Pavlović and Others v. Croatia , no. 13274/11 , § 32, 2 April 2015).

29. In this connection, the Court notes that the applicant never invoked Article 35 of the Constitution, which is the provision that arguably corresponds to Article 8 of the Convention, either in his constitutional complaint or before any other domestic authority (see paragraph 18 above). Instead, he referred to Articles 18, 29 and 31 of the Constitution, which are essentially not pertinent to his Convention complaints (see paragraph 16 above).

30. More importantly, the applicant did not complain about the violation of his right to respect for his private life, even in substance, before any of the competent domestic authorities (compare Merot d.o.o . and Storitve Tir d.o.o . v. Croatia ( dec. ), nos. 29526/08 and 29737/08, § 36, 10 December 2013). Instead, he confined himself to challenging the domestic authorities ’ interpretation of the relevant domestic law on the question of reopening the administrative disciplinary proceedings (see paragraphs 14 and 16 above).

31. However, as follows from the Court ’ s case-law, the mere fact that an applicant has submitted his or her case to the various competent courts does not of itself constitute compliance with the requirements of Article 35 § 1 of the Convention, as even in those jurisdictions where the domestic courts are able, or even obliged to examine the case of their own motion, applicants are not dispensed from the obligation to raise before them the complaint subsequently made to the Court. Rather, they must actually complain, expressly or in substance, about it in a manner which leaves no doubt that the same complaint that was subsequently submitted to the Court had indeed been raised at the domestic level (ibid.).

32. In the case at issue, for the reasons set out above, the Court cannot accept that the applicant lodged his complaint about the allegedly unjustified interference with the relevant aspects of his private life before the competent domestic authorities.

33. It follows that the applicant ’ s complaint under Article 8 of the Convention must be rejected as inadmissible under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

34. With regard to the applicant ’ s complaint of the lack of an effective remedy under Article 13, the Court finds, having regard to the reasoning and conclusions set out above as regards the applicant ’ s failure to raise his Article 8 complaint before the Constitutional Court (see paragraphs 28-32 above), that this complaint is manifestly ill-founded (see, for instance, Djaparidze v. Moldova ( dec. ), no. 32530/07, § 37, 31 January 2012). It must therefore be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 15 September 2016 .

             Stanley Naismith Işıl KarakaÅŸ Registrar President