Communicated on 18 December 2014

FIRST SECTION

Application no. 45512/11 Miljenko GALOVIĆ against Croatia lodged on 18 July 2011

STATEMENT OF FACTS

The applicant, Mr Miljenko Galović , is a Croatian national, who was born in 1957 and lives in Zagreb.

A. The circumstances of the case

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

1. Minor offences proceedings

On 4 November 2011 the police authorities instituted minor offences proceedings against the applicant before the Zagreb Minor Offences Court ( Prekršajni sud u Zagrebu ) for the minor offence of domestic violence committed on 3 November 2008 against his, by now former, wife and his two daughters.

On the same day the applicant was arrested and placed in detention.

By a judgment of 17 November 2008 the Zagreb Minor Offences Court found the applicant guilty as charged and sentenced him to 112 days ’ imprisonment.

By a judgment of 26 November 2008 the High Minor Offences Court ( Visoki prekršajni sud Republike Hrvatske ) dismissed an appeal by the applicant and upheld the first-instance judgment.

2. Criminal proceedings

On 2 December 2008 the applicant was transferred from minor offences detention to criminal detention under suspicion of having committed the criminal offence of domestic violence against his wife, his older daughter and his son, and the criminal offence of child neglect and abuse against his younger daughter.

On 26 January 2009 the Zagreb State Attorney ’ s Office indicted the applicant before the Zagreb Municipal Criminal Court ( Općinski kazneni sud u Zagrebu ) on: (a) three counts of the criminal offence of domestic violence defined in Article 215a of the Criminal Code perpetrated against his former wife, his older daughter and his son, and (b) one count of the criminal offence of child neglect and abuse defined in Article 213 of the Criminal Code committed against his younger daughter. According to the indictment these offences were perpetrated in the period between February 2005 and 3 November 2008.

By a judgment of 14 July 2009 the Zagreb Municipal Criminal Court found the applicant guilty as charged, sentenced him to five years ’ imprisonment and imposed the security measure of compulsory treatment of alcohol addiction.

On 20 August 2009 the applicant appealed against that judgment to the Zagreb County Court ( Županijski sud u Zagrebu ) asking at the same time that the second-instance hearing be held. By a letter of the same date the applicant cancelled the power-of-attorney issued to his counsel Mr E.H., which was received at the first-instance court a day later. Therefore, on 9 September 2009 the President of that court appointed a certain Mr S.A. to act as a counsel for the applicant.

Despite that, the Zagreb County Court informed only the applicant ’ s former counsel E.H. of its session scheduled for 2 November 2009 at which the appeal was to be examined.

By a judgment of 2 November 2009 adopted at that session the Zagreb County Court ( Županijski sud u Zagrebu ), without holding a hearing and in the absence of the applicant and his counsel(s), accepted in part the appeal lodged by the applicant and reduced his sentence to four years and three month ’ s imprisonment. His appeal was dismissed in the remaining part and the first-instance judgment upheld.

The applicant then lodged a request for extraordinary review of a final judgment ( zahtjev za izvanredno preispitivanje pravomoćne presude ) with the Supreme Court ( Vrhovni sud Republike Hrvatske ). He argued, inter alia , that he had not been notified of the session at which the County Court examined his appeal and adopted its judgment even though under the rules of criminal procedure the accused which demanded a hearing before the second-instance court had to be informed of such session. Only his former counsel E.H. had been notified even though at the time he had no longer represented him.

By a decision of 20 January 2010 the Supreme Court quashed the second-instance judgment and remitted the case to the Zagreb County Court. It held that the County Court had breached the rules of criminal procedure by informing the applicant ’ s former counsel E.H. rather than his current, officially-appointed, counsel S.A. of that court ’ s session of 2 November 2009.

In the resumed proceedings, on 12 February 2010 the Zagreb County Court notified the applicant and his current officially-appointed counsel, that the session before that court at which the applicant appeal was to be examined was scheduled for 16 February 2010.

By a letter received at the County Court a day before the session, the applicant asked the court to adjourn it. He explained that he had been informed of the session only four days in advance and thus had not had enough time to prepare his defence.

The session was nevertheless held as scheduled, on 16 February 2010. The applicant ’ s officially-appointed counsel was not present nor was the applicant, who was still in detention at the time, invited. The competent State Attorney was not present at the session either.

After the session the County Court rendered a judgment identical to its previous judgment of 2 November 2009, that is, reduced the applicant ’ s sentence to four years and three month ’ s imprisonment and dismissed the remainder of his appeal. The relevant part of that judgment reads as follows:

“The presence of the accused Miljenko Galović, who is in detention and is represented by a counsel, at the session before the panel was not secured because the panel considered that his presence was not necessary.”

The applicant then again, on 17 February 2010, lodged a request for extraordinary review of a final judgment with the Supreme Court, which he supplemented on 30 March and on 18 and 22 April 2010. He argued, inter alia , that: (a) he was notified of the County Court ’ s session of 16 February 2010 only four days in advance and thus had not had enough time to prepare his defence, (b) his officially appointed counsel had never contacted him and had not even attended the session, and (c) due to time constraints and transfers from one prison to another he had not had enough time to hire a counsel of his own choosing to represent him before the County Court. He also argued that, in view of his conviction for the minor offence of domestic violence in relation to the incident of 3 November 2008, his criminal conviction, which encompassed that incident, constituted a second conviction for the same offence.

By a judgment of 27 April 2010 the Supreme Court dismissed the applicant ’ s request.

By a decision of 27 January 2011 the Constitutional Court ( Ustavni sud Republike Hrvatske ) declared inadmissible the applicant ’ s subsequent constitutional complaint. It held that the Supreme Court ’ s decisions following requests for extraordinary review of a final judgment were not decisions susceptible to constitutional review.

On 16 March 2012 the applicant was conditionally released from serving his prison sentence.

COMPLAINTS

1. The applicant complains under Article 4 of Protocol No. 7 to the Convention that in the above-mentioned criminal proceedings he was convicted of the same offence of which he had been convicted earlier in the minor offences proceedings.

2. He further complains under Article 6 § 3 (b) of the Convention that in the proceedings before the Zagreb County Court he did not have adequate time for the preparation of his defence because he had been informed of its session of 16 February 2010 only four days in advance .

3. Lastly, the applicant also complains under Article 6 § 3 (c) of the Convention that in the proceedings before the Zagreb County Court he could not have defended himself in person because he had not been invited to attend its session of 16 February 2010. Nor was he able to defend himself through legal assistance of his own choosing or free legal assistance because, owing to time constraints and transfers from one prison to another in the relevant period, he could not have hired a counsel whereas the one officially appointed never contacted him nor attended the Zagreb County Court ’ s session of 16 February 2010 even though he had been informed of it.

QUESTIONS TO THE PARTIES

1. Has the applicant been punished twice for the same offence, as prohibited by Article 4 § 1 of Protocol No. 7?

2. Was the applicant in the proceedings before the Zagreb County Court afforded adequate time and facilities to prepare his defence, as required by Article 6 § 3 (b) of the Convention?

3 . Was the applicant in the proceedings before the Zagreb County Court able to defend himself in person or through effective legal assistance, as required by Article 6 § 3 (c) of the Convention? In particular:

(a) Did the applicant in those proceedings have effective access to an advocate with a view to exercising his right to defend himself through legal assistance of his own choosing?

(b) Was the free legal assistance by the officially appointed counsel practical and effective?

(c) Was the applicant ’ s absence from the session held before the Zagreb County Court on 16 February 2010 in compliance with the requirements of Article 6 § 3 (c) of the Convention?

4. The Government are requested to submit case-files in respect of all minor offences proceedings and criminal proceedings instituted against the applicant.