JURIŠIĆ v. CROATIA
Inadmissible
Julia Laffranque;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković
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 Š. Stažnik. 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 (Županijski 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 (Viši 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 (Općinsko državno odvjetništvo u Splitu) indicted the applicant and another individual in the Split Municipal Court (Općinski 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. 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: “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 službi u oružanim snagama Republike Hrvatske, Official Gazette no. 33/2002, 175/2003 and 136/2004) which was applicable at the time, provided as follows: “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, ...”