Last Updated on April 21, 2020 by LawEuro
FIRST SECTION
DECISION
Application no. 52204/14
Braco BEGOVIĆ
against Croatia
The European Court of Human Rights (First Section), sitting on 3 March 2020 as a Committee composed of:
Krzysztof Wojtyczek, President,
Armen Harutyunyan,
Pere Pastor Vilanova, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 11 July 2014,
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 Braco Begović, is a Croatian national who was born in 1951 and lives in Zagreb. He was represented before the Court by Mr D. Krtić, a lawyer practising in Osijek.
2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
I. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 13 November 1996 the applicant, together with four other persons, was indicted at the Pula County Court (Županijski sud u Puli, “the County Court”) on charges of abuse of power and authority under Article 215 §§ 1, 3 and 5 of the Criminal Code, and forgery under Article 206 § 1 of the Criminal Code (Krivični zakon Republike Hrvatske; Official Gazette nos. 25/1977, 50/1978, 25/1984, 52/1987, 43/1989, 8/1990, 9/1991, 33/1992, 39/1992, 77/1992, 91/1992, 32/1993 and 38/1993 – consolidated text – hereinafter “the 1993 Criminal Code”).
5. The applicant was indicted on two counts. Firstly, it was alleged that in the period between April 1994 and May 1995 he, as a person in a position of responsibility – a manager in the company P.V. – had prepared false invoices on the basis of which certain goods had purportedly been bought from and sold to a another company, S., which had allowed the company P.V. to sell goods for an inflated fictitious price to the Ministry of the Defence (hereinafter “the Ministry”), with whom it had a contract for the purchase of goods (foodstuffs). Thus, together with the other accused, he had obtained a pecuniary gain of more than four million Croatian kunas (HRK). The second count on the indictment concerned allegedly fictitious service contracts which the applicant had concluded with third parties, and on the basis of which he had obtained a pecuniary gain of more than HRK 50,000.
6. On 18 November 1996 the applicant lodged an objection against the indictment with a three-judge panel of the County Court. He argued, in particular, that the alleged offences could only be classified as one single offence under Article 215 §§ 1, 3 and 5, taken in conjunction with Article 206 § 1 of the 1993 Criminal Code. He further contended that he was not an employee of the Ministry and thus could not have committed an offence of abuse of power and authority to the detriment of the Ministry. The applicant also challenged the factual findings of the indictment.
7. On 18 December 1996 a three-judge panel of the County Court dismissed the applicant’s objection, confirmed the indictment, and sent the case to trial. It considered that, having regard to the established facts, there was no deficiency in the legal classification of the indictment. The panel also found that, in view of the manner in which the alleged offence to the detriment of the Ministry had been committed, the fact that the applicant was not an employee of the Ministry was irrelevant. Lastly, the panel stressed that all factual issues raised by the applicant should be examined during the trial.
8. On 19 February 1998, in the course of the proceedings before the County Court, the applicant informed the trial court that a new Criminal Code (Kazneni zakon, Official Gazette no. 110/1997 – hereinafter “the 1997 Criminal Code”) had come into force and had changed the charge of abuse of power and authority under Article 215 §§ 1, 3 and 5 of the 1993 Criminal Code. He submitted that a similar provision was now provided for in Article 337 of the 1997 Criminal Code, but the nature of the proscription had changed. He thus asked the trial court to instruct the prosecution to amend the indictment in line with the changes in the Criminal Code.
9. On 5 March 1998 the prosecutor amended the indictment on the grounds that the 1997 Criminal Code was more favourable to the accused. He classified the offences under Article 337 §§ 1, 3 and 4 (abuse of power and authority) and Article 311 § 1 (forgery of documents) of the 1997 Criminal Code, and adjusted the text of the charges in line with the relevant proscriptions under those provisions. The factual elements of the indictment remained the same. As regards the classification of abuse of power and authority, in accordance with the amended indictment, it was still indicated that the applicant was a person in a position of responsibility who had intentionally abused his position and obtained significant pecuniary gain.
10. On 14 April 2009, on the basis of the evidence adduced and facts established during the proceedings, the prosecutor further specified and amended the indictment. The amended indictment alleged, in count one (see paragraph 5 above), that the applicant and the other accused, acting as persons in positions of responsibility intending to obtain significant pecuniary gain for themselves and others, had abused their position and authority and thereby obtained a significant pecuniary gain amounting to approximately HRK 2,900,000. This offence was classified under Article 337 §§ 1, 3 and 4 of the 1997 Criminal Code, while the separate charge against the applicant – forgery of documents under Article 311 § 1 (see paragraphs 4-5 and 9 above) – was dropped.
11. The second count on the amended indictment (see paragraph 5 above) indicated that the applicant, as a person in a position of responsibility acting with the intention of obtaining significant pecuniary gain for himself, had abused his position and authority and thereby obtained a significant pecuniary gain. The value of the pecuniary gain which had allegedly been obtained did not change. The legal classification of the offence also remained the same, namely it was classified under Article 337 §§ 1, 3 and 4 of the 1997 Criminal Code.
12. On 27 May 2009 the County Court found the applicant guilty of the first count on the indictment and acquitted him of the second count on the indictment. The County Court found that the evidence adduced and the facts established during the proceedings left no doubt that the applicant and the other accused had committed the offence under Article 337 §§ 1, 3 and 4 of the 1997 Criminal Code, as charged under count one on the amended indictment. The applicant was sentenced to four years and six months’ imprisonment. The court also ordered confiscation of the proceeds of crime under Article 82 of the 1997 Criminal Code.
13. The applicant appealed against that judgment before the Supreme Court (Vrhovni sud Republike Hrvatske), challenging it on various factual and legal grounds. As regards the legal classification of the offences, he reiterated his arguments that he had never held any position in the Ministry, and thus could not have been responsible for payments made by the Ministry. He also argued that an offence under Article 215 of the 1993 Criminal Code existed only if another offence had not been committed, and that the charges on the indictment did not lead to a conclusion that an offence under Article 337 §§ 1, 3 and 4 of the 1997 Criminal Code had been committed.
14. On 6 December 2013 the Supreme Court upheld the first-instance judgment and, proprio motu acting ex officio, reclassified the applicant’s conviction as abuse of trust in a business activity under Article 246 § 2 of the new (2011) Criminal Code (Kazneni zakon, Official Gazette nos. 125/2011 and 144/2012 – hereinafter “the 2011 Criminal Code”), which it considered to be more lenient towards the applicant. It also reduced the applicant’s sentence to four years’ imprisonment, taking into account, amongst other things, the fact that the more lenient law had to be applied to his conviction.
15. The Supreme Court considered that the first-instance court had not erred in its factual and legal findings. It stressed that there was no doubt that the applicant’s conduct had amounted to an offence under Article 337 §§ 1, 3 and 4 of the 1997 Criminal Code. In the Supreme Court’s view, the applicant’s arguments to the contrary had been misplaced. As to continuity between the relevant legal classifications under Article 337 §§ 1, 3 and 4 of the 1997 Criminal Code and Article 246 § 2 of the 2011 Criminal Code, the Supreme Court noted:
“As the new Criminal Code (Official Gazette nos. 125/2011 and 144/2012) came into force on 1 January 2013, this court, under Article 3 of the 2011 Criminal Code, has identified the legal continuity and classified the facts from the operative part of the [first-instance] judgment as an offence under Article 246 § 2 of the 2011 Criminal Code. In this connection, it should be noted that according to opinion no. Su-IV k-4/2012-57 of 27 December 2012 of the Criminal Division of the Supreme Court, concerning relevant amounts corresponding to unspecified values in the Criminal Code, the new Criminal Code is more lenient towards the accused, because the elements of “considerable pecuniary gain” and “considerable damage” relating to the criminal offence of abuse of trust in a business activity under Article 246 § 2 of the 2011 Criminal Code exist [only] when the value of the pecuniary gain or damage surpasses 60,000 kunas.”
16. The applicant lodged a constitutional complaint against the Supreme Court’s judgment with the Constitutional Court (Ustavni sud Republike Hrvatske). He relied, inter alia, on Articles 6 and 7 of the Convention.
17. As regards the legal classification of his conviction, the applicant pointed out that Article 215 § 3 of the 1993 Criminal Code had been applicable only if another criminal offence had not been committed, something which had not been provided for later in Article 337 §§ 1 and 3 of the 1997 Criminal Code. However, it had always been a principle recognised in criminal law in Croatia that the most lenient law must be applied in the event of subsequent amendments to the Criminal Code. In the applicant’s view, there had never been an explanation during the proceedings as to why he had initially been indicted under the 1993 Criminal Code, and not under the 1997 Criminal Code.
18. Furthermore, as regards the application of Article 246 § 2 of the 2011 Criminal Code in respect of his conviction, the applicant argued that Article 291 of the 2011 Criminal Code best corresponded to Article 215 of the 1993 Criminal Code and Article 337 of the 1997 Criminal Code. He pointed out that Article 291 of the 2011 Criminal Code had the same title as those earlier provisions and was in the same chapter of the Criminal Code on offences against official power and authority.
19. In the applicant’s view, Article 246 of the 2011 Criminal Code could not be applied to his case, as there was no continuity between that provision and Article 215 of the 1993 Criminal Code and Article 337 of the 1997 Criminal Code. He argued that the protected good under Article 246 of the 2011 Criminal Code was different: it protected business activities, while Article 337 of the 1997 Criminal Code protected the proper performance of official duties. In addition, the proscribed conduct under Article 246 of the 2011 Criminal Code was different, the key difference being that damage had to be caused to the person whose property interests the perpetrator was required to secure. The applicant submitted that he had been convicted in respect of damage caused to the Ministry, although it had not been clear how he had abused the Ministry’s trust or how he had been required to ensure the protection of its interests. Lastly, the applicant argued that the order for the confiscation of the proceeds of crime had been made under Article 82 of the 1997 Criminal Code, a provision which had not existed at the time when the offence had been committed.
20. On 8 May 2014 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded on the grounds that the Supreme Court had provided sufficient reasons for its decision. The relevant part of the Constitutional Court’s decision reads as follows:
“The Constitutional Court stresses that when deciding upon the guilt of an accused, the courts in criminal proceedings are not bound by the legal classification of the offence [by the prosecutor], but by the factual scope [of the case set out in the indictment]. In the case at issue, the criminal proscription corresponding to the factual elements of the offence of which the appellant was convicted existed under the [1993] Criminal Code, the 1997 Criminal Code and the 2011 Criminal Code. The courts correctly established that there was legal continuity as regards the offence and classified the facts of the case [firstly] under Article 337 of the 1997 Criminal Code and [then] under Article 246 of the 2011 Criminal Code. The Supreme Court provided reasons for this in a constitutionally acceptable manner. Lastly, it should be noted that the new [Criminal] Code constitutes the more lenient law in this particular case.
It thus follows that, in the case at issue, the interpretation of the application of the Criminal Code was done in accordance with the standards of the Supreme Court’s case-law …”
21. The decision of the Constitutional Court was served on the applicant’s representative on 26 May 2014.
II. Relevant domestic law and practice
A. Relevant domestic law
1. The Constitution
22. The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette no. 56/1990, with further amendments) read as follows:
Article 29
“(1) In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.”
Article 31
“(1) No one shall be punished for an act which, before it was committed, was not defined as a criminal offence by a statute or international law, nor can he or she be punished by a sanction not determined by law. If the law determines a more lenient sanction after the commission of the offence, that sanction shall be applied.
2. The Criminal Code
23. Before the entry into force of the 1997 Criminal Code, issues of substantive criminal law were regulated under the 1993 Criminal Code and the Basic Criminal Code of the Republic of Croatia (Osnovni Krivični zakon Republike Hrvatske, Official Gazette no. 31/1993 – consolidated text).
24. The relevant provisions of the 1993 Criminal Code read as follows:
Application of the criminal law of the Republic of Croatia
Article 2
“…
(2) When applying this Code or other laws of the Republic of Croatia containing criminal law provisions, the provisions of the Basic Criminal Code of the Republic of Croatia (Official Gazette no. 31/1993 – consolidated text) shall be applicable.”
The meaning of the terms used in this code
Article 3
“…
(4) A person in a position of responsibility is a person in a legal entity who, owing to his or her duties or on the basis of special authority, is entrusted with a certain set of tasks related to the enforcement of regulations or some other general act of a legal entity in asset management, or related to the management of production or some other economic process or [form of] supervision of those processes. A person in a position of responsibility shall also mean an official person as regards actions for which the person in a position of responsibility is designated as a perpetrator, and actions which are not provided for in the chapter on criminal offences against official duty, or the criminal offences of an official provided for in another chapter of this Code.
(5) When an official or person in a position of responsibility is designated as the perpetrator of certain criminal offences, the persons referred to in paragraph … 4 of this Article may be the perpetrators of those offences, if the elements of a certain offence or a certain regulation do not indicate that only some of these persons may be perpetrators.”
CRIMINAL OFFENCES AGAINST OFFICIAL DUTY AND PUBLIC AUTHORITY
Abuse of power and authority
Article 215
“(1) An official or person in a position of responsibility who, in order to acquire some non-pecuniary gain for himself or herself or another, or in order to cause damage to another, uses his or her position of power or authority, oversteps his or her authority, or fails in his or her duty, shall be punished by a term of imprisonment of up to three years.
…
(3) If a pecuniary gain is acquired as a result of the criminal offence referred to in paragraph 1 of this Article, and it does not constitute some other offence, the perpetrator shall be punished by a term of imprisonment of six months to five years.
…
(5) If the value of an acquired pecuniary gain exceeds two million Croatian dinars,[1] the perpetrator shall be punished by a term of imprisonment of at least three years.[2]
25. The relevant provision of the Basic Criminal Code provided as follows:
CONFISCATION OF THE PROCEEDS OF CRIME
Principles of confiscation
Article 79
“(1) No one can retain the proceeds of crime.
(2) The proceeds [of crime] shall be confiscated by a court decision finding that a criminal offence has been committed, under the conditions provided for in this Code.”
26. The 1993 Criminal Code and the Basic Criminal Code were repealed by the 1997 Criminal Code, which came into force on 1 January 1998.
27. The relevant provisions of the 1997 Criminal Code provided as follows:
CHAPTER ONE (I)
BASIC PROVISIONS
Mandatory application of the more lenient law
Article 3
“(1) The law applicable at the moment of the commission of the offence shall be applied to the perpetrator.
(2) If the law has changed once or several times after the commission of the offence, the law most lenient towards the perpetrator shall be applicable.”
CHAPTER EIGHT (VIII)
Confiscation of the proceeds of crime …
Article 82
“(1) No one can retain the proceeds of crime.
(2) The proceeds [of crime] shall be confiscated by a court decision finding that a criminal offence has been committed.”
CHAPTER NINE (IX)
The meaning of the terms used in this Code
Article 89
“…
(7) A person in a position of responsibility, as referred to in this Code, is a person who is entrusted with particular tasks from the field of activities of a legal entity, a government body, a body of local self-government and administration, or a local self‑government body.
(8) When an official or person in a position of responsibility is designated as the perpetrator of certain criminal offences, the persons referred to in paragraph … 7 of this Article may be the perpetrators of those offences, if the elements of a certain offence or a certain regulation do not indicate that only some of these persons may be perpetrators.”
CHAPTER TWENTY-FIVE (XXV)
CRIMINAL OFFENCES AGAINST OFFICIAL DUTY
Abuse of power and authority
Article 337
“(1) An official or person in a position of responsibility who, in order to acquire some non-pecuniary gain for himself or herself or another, or in order to cause damage to another, uses his or her position of power or authority, oversteps his or her authority, or fails in his or her duties, shall be punished by a fine or imprisonment of up to three years.
…
(3) If a pecuniary gain is acquired as a result of the criminal offence referred to in paragraph 1 of this Article, the perpetrator shall be punished by a term of imprisonment of six months to five years.
(4) If considerable pecuniary gain is acquired as a result of the criminal offence referred to in paragraph 1 of this Article and the perpetrator acted with the intention of acquiring such gain, he or she shall be punished by a term of imprisonment of one to ten years.”
28. The 2011 Criminal Code repealed the 1997 Criminal Code. It came into force on 1 January 2013.
29. The relevant provisions of the 2011 Criminal Code (including the 144/2012 amendments) read:
CHAPTER ONE (I)
BASIC PROVISIONS
The principle of the application of the more lenient law and the temporal application of criminal legislation
Article 3
“(1) The law applicable at the moment of the commission of the offence shall be applied to the perpetrator.
“(2) If the law has changed once or several times after the commission of the offence and before the adoption of the final judgment, the law most lenient towards the perpetrator shall be applicable.
(3) If, in the cases referred to in paragraph 2 of this Article, the title or description of the offence has changed, the court shall examine whether there is legal continuity, so as to consider the facts of the case under the constituent element of a relevant offence under the new law, and if it finds that there is [continuity], it shall apply the law which is more lenient towards the perpetrator. There is no criminal offence if there is no legal continuity.”
Principles of confiscation of the proceeds of crime
Article 5
“No one can retain the proceeds of an unlawful act.”
CHAPTER SIX (VI)
CONFISCATION OF THE PROCEEDS OF CRIME …
Conditions and method of confiscation
Article 77
“(1) The proceeds [of crime] shall be confiscated by a court decision finding that an unlawful act has been committed …”
CHAPTER EIGHT (VIII)
The meaning of the terms used in this code
Article 87
“…
(6) A person in a position of responsibility is a physical person who manages the business of a legal entity or is expressly or actually entrusted with particular tasks from the field of activities of a legal entity.”
CHAPTER TWENTY-FOUR (XXIV)
Criminal offences against a business activity
Abuse of trust in a business activity
Article 246
“(1) In a business activity, whoever breaches a duty to protect the property interests of another [which has been] established by law, an administrative or judicial decision, a legal act, or a relationship of trust, and so acquires for himself or another unlawful pecuniary gain, and thereby or otherwise causes damage to another [person] whose property interests he was required to secure, shall be punished by a term of imprisonment of six months to six years.
(2) If a considerable pecuniary gain is acquired as a result of the criminal offence referred to in paragraph 1 of this Article or considerable damage is caused, the perpetrator shall be punished by a term of imprisonment of one to ten years.”
CHAPTER TWENTY-EIGHT (XXVIII)
CRIMINAL OFFENCES AGAINST OFFICIAL DUTY
Abuse of power and authority
Article 291
“(1) An official or person in a position of responsibility who uses his or her position of power or authority, oversteps his or her authority, or fails in his or her duties, and thereby acquires a certain gain or causes damage to another, shall be punished by a term of imprisonment of six months to five years.
(2) If considerable pecuniary gain is acquired or considerable damage is caused as a result of the criminal offence referred to in paragraph 1 of this Article, the perpetrator shall be punished by a term of imprisonment of one to twelve years.”
30. As regards the relationship between Article 246 of the 2011 Criminal Code and the relevant provisions of the 1997 Criminal Code (some of which were fully repealed), the annotated final draft of the 2011 Criminal Code explains the following concerning Article 337 of the 1997 Criminal Code:
“The provision on the abuse of trust in a business activity [Article 246] primarily replaces the part of the offence of abuse of power and authority under Article 337 §§ 3 and 4 of the 1997 Criminal Code which concerns offences committed by persons in positions of responsibility in the performance of a business activity. This corrects the unsustainable position under the [1997] Criminal Code whereby the principal offence of economic crime was considered to be an offence against official duty. At the same time, this corrects many technical deficiencies of Article 337 of the 1997 Criminal Code ([such as] the description of acts adapted to activities relating to the performance of official duties, and not business activities …).”
3. Relevant practice
31. In its case-law, the Supreme Court has held that there was legal continuity between the criminal offence under Article 337 of the 1997 Criminal Code and Article 246 of the 2011 Criminal Code. Moreover, when determining which provision was more lenient towards accused persons, the Supreme Court has relied on its interpretation of the necessary value of the pecuniary gain obtained or damage caused as a constituent element of the charge under those provisions (Article 337 § 4 of the 1997 Criminal Code and Article 246 § 2 of the 2011 Criminal Code). As opinion no. Su-IV k‑4/2012-57 of 27 December 2012 of the Criminal Division of the Supreme Court increased that value to HRK 60,000, rather than the value adopted for a charge under the 1997 Criminal Code (HRK 30,000), the Supreme Court has considered that the 2011 Criminal Code was more lenient, as it required a larger amount of acquired unlawful pecuniary gain or damage in order for conduct to amount to an offence under Article 246 § 2 of the 2011 Criminal Code (see, for instance, I Kž-226/11-8 of 19 February 2013; I Kž-24/71-7 of 30 January 2013; I Kž-65/13-4 of 13 February 2013; I Kž-927/11-6 of 9 April 2013; I Kž-582/10-6 of 10 April 2013; I Kž-788/12-4 of 23 April 2013; I Kž-12/34-4 of 29 May 2013; and I Kž-Us-109/14-4 of 16 October 2014; see also paragraph 15 above).
32. The Supreme Court explained its position in the following manner (I Kž-226/11-8 of 19 February 2013):
“[T]he Supreme Court, as the second-instance court, compared the old and the new Criminal Code proprio motu and found that, in the present case, instead of Article 337 § 4 of the 1997 Criminal Code, Article 246 § 2 of the 2011 Criminal Code should be applied, regardless of the fact that the prescribed penalty remained the same. When assessing the legal continuity of the criminal offence of abuse of position and authority (Article 337 of the 1997 Criminal Code) … the new criminal offence of abuse of trust in a business activity (Article 246 of the 2011 Criminal Code) should be taken into account. The essence of this new criminal offence also corresponds to the criminal offence of abuse of position and authority (Article 337 of the 1997 Criminal Code), because the new criminal offence of abuse of position and authority (Article 291 of the 2011 Criminal Code) now only concerns conduct against an official duty. Furthermore, when assessing which law is more lenient, it should be taken into account that after the entry into force of the new Criminal Code, the Criminal Division of the Supreme Court issued opinion (no. Su-IV k-4/2012-57) on amounts for unspecified values, according to which the new Criminal Code is more lenient towards the perpetrator, because the elements of “considerable pecuniary gain” and “considerable damage” relating to the criminal offence of abuse of trust in a business activity under Article 246 § 2 of the 2011 Criminal Code exist [only] when the value of the pecuniary gain or damage surpasses 60,000 kunas.”
33. The Supreme Court has also given the following details concerning the comparison of the value of pecuniary gain obtained or damage caused for charges under the relevant provisions of the 1997 and 2011 Criminal Codes (I Kž-788/12-4 of 23 April 2013):
“[A]ccording to opinion no. Su-IV k-4/2012-57 of 27 December 2012 of the Criminal Division of the Supreme Court, concerning relevant amounts corresponding to unspecified values in the Criminal Code, the elements of “considerable pecuniary gain” and “considerable damage” relating to the criminal offence of abuse of trust in a business activity under Article 246 § 2 of the 2011 Criminal Code exist when the value of the pecuniary gain or damage surpasses 60,000 kunas, while, according to the previous opinion of this court, the element of “considerable pecuniary gain” relating to the offence under Article 337 § 4 of the 1997 Criminal Code existed if the value of the pecuniary gain surpassed 30,000 kunas. Therefore, as the pecuniary value necessary to reach the value for the [relevant] charge has increased, the 2011 Criminal Code is more lenient than the 1997 Criminal Code.”
34. In case no. U-III-4149/2014 of 24 July 2015, the Constitutional Court stressed that where the Criminal Code changed several times in the period between the time when an offence was committed and the relevant judgment, any question of the continuity of a charge – in that case, continuity between Article 215 of the 1993 Criminal Code, Article 337 of the 1997 Criminal Code, and Article 291 of the 2011 Criminal Code (abuse of power and authority) – must be sufficiently reasoned by the relevant criminal courts.
35. In the case at issue, Article 215 of the 1993 Criminal Code was in force at the time of the commission of the offence, but the appellant was indicted and convicted at first instance under Article 337 of the 1997 Criminal Code. However, on appeal, the Supreme Court reclassified his conviction, applying Article 291 of the 2011 Criminal Code, which, in line with its approach as outlined above (see paragraph 31), it considered to be a more lenient provision than Article 337 of the 1997 Criminal Code.
36. The Constitutional Court criticised the lower courts’ decisions, which provided no reasoning as to the applicability of Article 215 of the 1993 Criminal Code, a provision which incriminated the impugned conduct at the time when the conduct allegedly took place. In this connection, the Constitutional Court pointed to the Supreme Court’s case-law concerning the application of Article 215 §§ 1, 3 and 5 of the 1993 Criminal Code, suggesting that the relevant criminal courts, before deciding on the applicability of that provision, were required to examine whether the impugned conduct constituted some other criminal offence.
37. The Constitutional Court also criticised the Supreme Court’s case‑law, according to which the value of the pecuniary gain obtained or damage caused which was necessary to reach the threshold for the relevant charge under Article 337 § 4 of the 1997 Criminal Code and Article 291 § 2 of the 2011 Criminal Code was taken as the sole criterion to determine which law was more lenient towards the accused (see paragraphs 31-33 above).
38. In sum, the Constitutional Court considered that the lower courts’ decisions, lacking relevant reasoning concerning the application of the relevant criminal law, suggested that the law had been arbitrarily applied in breach of Article 29 § 1 and Article 31 § 1 of the Constitution.
COMPLAINTS
39. The applicant complained that there was no continuity between the legal provision of criminal law under which he had been charged and the provision under which he had been convicted. The case was communicated under Articles 6 and 7 of the Convention.
I. THE LAW
40. The Court notes at the outset that the applicant’s complaints primarily raise an issue under Article 7 of the Convention. The Court, being master of the characterisation to be given in law to the facts of the case, considers, having regard to its case-law (see paragraphs 48-54 below), that his complaints fall to be examined only under Article 7 of the Convention (compare Žaja v. Croatia, no. 37462/09, § 64, 4 October 2016), which, in so far as relevant, reads as follows:
Article 7
“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
…”
A. The parties’ arguments
1. The Government
41. The Government argued that the applicant had failed to raise and substantiate any issue under Article 6 of the Convention. They also considered that Articles 6 and 7 of the Convention did not apply in this case, as the applicant’s complaints only concerned his dissatisfaction with the legal classification of his offence, which was not an issue under those provisions. The same was true for any matter concerning the confiscation of the proceeds of crime, which could not be considered a penalty.
42. In any event, in the Government’s view, the reasons for the legal classification of the applicant’s offence had been sufficiently clear. This was apparent from the manner in which the indictment had been examined and confirmed by the relevant court, and the reasoning of the judgments of the County Court and the Supreme Court finding the applicant guilty of the offence with which he had been charged. Moreover, the Supreme Court had provided sufficient reasons for its application of the 2011 Criminal Code. Such a decision of the Supreme Court had been in line with the relevant domestic law and practice. It had also led to the application of a law which had been more lenient towards the applicant, as a result of which his sentence had been reduced by six months.
43. The Government further argued that the conduct of which the applicant had been accused had been proscribed under all applicable law, namely the 1993, 1997 and 2011 Criminal Codes. The continuity of the relevant proscription had been subject to judicial interpretation, which was inevitable in a situation where the Criminal Code had changed several times. In this connection, the Government explained that Article 215 of the 1993 Criminal Code – which the domestic authorities had found to be the proper provision applicable in the applicant’s case – reflected the former socialist arrangement of relations in the economy, where the boundaries between the performance of official public duties and participation in economic activities had been blurred. Such a solution had then been transposed to Article 337 of the 1997 Criminal Code. However, as regards the aggravated form of the offence (which was in issue in the present case), Article 337 of the 1997 Criminal Code had been a more lenient provision than Article 215 of the 1993 Criminal Code: the latter had provided for a sentence of three to fifteen years’ imprisonment, while the former had provided for a sentence of one to ten years’ imprisonment.
44. This confusion between the performance of official public duties and economic activities had been resolved by the adoption of the 2011 Criminal Code. That Code did not decriminalise such conduct, but simply differentiated between offences against official duty (now proscribed under Article 291) and offences against economic activity (now proscribed under Article 246). Thus, as regards offences against economic activity – an issue in the applicant’s case – there was continuity between Article 337 of the 1997 Criminal Code and Article 246 of the 2011 Criminal Code. This was clearly indicated by the relevant legislative proposal and the consistent case‑law of the Supreme Court.
45. Referring to the Supreme Court’s case-law, the Government also argued that Article 246 of the 2011 Criminal Code, when compared to Article 215 of the 1993 Criminal Code and Article 337 of the 1997 Criminal Code, was the most lenient provision as regards the offences of which the applicant had been accused. In this connection, the Government pointed out that the applicant’s sentence had been reduced after the Supreme Court had reclassified his conviction under Article 246 of the 2011 Criminal Code. They also pointed out that confiscation of the proceeds of crime had been possible under all of those Criminal Codes, and thus this could not raise an issue of retroactive application of the law.
2. The applicant
46. The applicant submitted that he had been convicted under Article 246 §§ 1 and 2 of the 2011 Criminal Code of abuse of trust in a business activity, an offence which had not existed under the 1993 Criminal Code (which had been in force at the time when the offence had been committed) or the 1997 Criminal Code. In his view, the 2011 Criminal Code had decriminalised abuse of power and authority committed by those participating in a business activity who were not public officials. Moreover, by applying the subsequent criminal law, the confiscation of the proceeds of crime had been ordered by reference to provisions which had not existed at the time when the offence had been committed (the applicant cited Article 82 of the 1997 Criminal Code).
47. Furthermore, the applicant pointed out that Article 215 §§ 1, 3 and 5 of the 1993 Criminal Code had been applicable only if the elements of another criminal offence had not existed, something which had not been provided for under Article 337 of the 1997 Criminal Code or any of the relevant provisions of the 2011 Criminal Code. However, save for that difference, the proscription under Article 215 of the 1993 Criminal Code and Article 337 of the 1997 Criminal Code had been identical, and had also been reflected under Article 291 of the 2011 Criminal Code, but not under Article 246, a completely new provision. Thus, in the applicant’s view, the Supreme Court had erroneously found that there was continuity between the offences with which he had been charged and Article 246 of the 2011 Criminal Code, under which he had been convicted.
B. The Court’s assessment
1. General principles
48. The Court refers to the general principles under Article 7 of the Convention, including the rules governing the succession of criminal laws in time, set out in Scoppola v. Italy(no. 2) [GC], no. 10249/03, §§ 92-109, 17 September 2009; Maktouf and Damjanovićv. Bosnia and Herzegovina [GC], nos. 2312/08 and 34179/08, §§ 65-66, ECHR 2013 (extracts); and Del Río Pradav. Spain [GC], no. 42750/09, §§ 77-93, ECHR 2013.
49. In particular, the Court stresses that Article 7 of the Convention prohibits the retrospective application of criminal law to an accused’s disadvantage. While it prohibits in particular extending the scope of existing offences to acts which previously were not criminal offences, it also lays down the principle that criminal law must not be extensively construed to an accused’s detriment (see, for instance, Del Río Prada, cited above, § 78).
50. In addition, it is consistent with the principle of the rule of law, of which Article 7 forms an essential part, to expect a trial court to apply to each punishable act the penalty which the legislator considers proportionate. Inflicting a heavier penalty for the sole reason that it was prescribed at the time of the commission of the offence would mean applying to the defendant’s detriment the rules governing the succession of criminal laws in time. That would also amount to disregarding any legislative change favourable to the accused which might have come in before the conviction and continuing to impose penalties which the State – and the community it represents – now consider excessive. Thus, the obligation to apply, from among several criminal laws, the one whose provisions are the most favourable to the accused is a clarification of the rules on the succession of criminal laws, which is in accord with another essential element of Article 7, namely the foreseeability of penalties (see Scoppola (no. 2), cited above, § 108).
51. Accordingly, Article 7 § 1 of the Convention guarantees not only the principle of non-retrospectiveness of more stringent criminal laws, but also, and implicitly, the principle of retrospectiveness of the more lenient criminal law. That principle is embodied in the rule that where there are differences between the criminal law in force at the time of the commission of an offence and subsequent criminal laws enacted before a final judgment is rendered, the courts must apply the law whose provisions are most favourable to the defendant (ibid., § 109).
52. As regards the requalification of the charges in case of a succession of criminal laws in time, the Court reiterates that, subject to the above-cited general principles, such requalification does not in itself contravene Article 7. In this connection, the Court is not concerned with the formal classifications or names given to criminal offences under the domestic law. To ensure that the requirements of Article 7 were complied with, it would suffice to determine that the act leading to the conviction constituted, in its substance, a criminal offence under the national law at the relevant time, irrespective of the different names by which that offence was referred to at various times (see Maksimov v. Azerbaijan (dec.), no. 38228/05, 1 February 2007).
53. The Court also reiterates that it is not its task to substitute itself for the domestic courts as regards the assessment of facts and their legal classification, provided that these are based on a reasonable assessment of the evidence. More generally, the Court points out that it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. Its role is thus confined to ascertaining whether the effects of such interpretation are compatible with the Convention.
54. However, the Court’s powers of review must be greater when a Convention right itself, Article 7 in the present case, requires that there be a legal basis for a conviction and sentence. Article 7 § 1 requires the Court to examine whether there was a contemporaneous legal basis for the applicant’s conviction, and, in particular, it must satisfy itself that the result reached by the relevant domestic courts was compatible with Article 7 of the Convention. In sum, the Court must examine whether there was a sufficiently clear legal basis for the applicant’s conviction (see Rohlena v. the Czech Republic [GC], no. 59552/08, §§ 51-52, ECHR 2015, and the cases cited therein).
2. Application of these principles to the present case
55. The Court finds that it is not necessary to address all the Government’s arguments, as the applicant’s complaint is inadmissible for the following reasons.
56. The Court notes that the applicant did not dispute that his acts had constituted a criminal offence defined with sufficient accessibility and foreseeability at the time when it had been committed. Instead, he argued that there had been no continuity between the relevant provision of the Criminal Code in force at the time when the offence had been committed (Article 215 §§ 1, 3 and 5 of the 1993 Criminal Code), the 1997 Criminal Code (Article 337), and the 2011 Criminal Code (Article 246 § 2), which had been applied in respect of his conviction.
57. In these circumstances, in view of its case-law, the Court must examine whether, having regard to the relevant succession of criminal laws in time (the 1993, 1997 and 2011 Criminal Codes), the application of the criminal law was sufficiently foreseeable, and whether the domestic courts applied the law whose provisions were most favourable to the applicant.
58. The Court notes that, in so far as this is relevant for the present case, the applicant was initially indicted under Article 215 §§ 1, 3 and 5 of the 1993 Criminal Code on charges of abuse of power and authority related to his business activity as a manager of the company P.V. It was alleged that, together with other co-accused, by using falsified invoices, he had unlawfully obtained a pecuniary gain of more than HRK 4,000,000 (see paragraphs 4-5 above). That indictment was confirmed by a three-judge panel of the County Court and the case was sent to trial (see paragraph 7 above).
59. In this context, the Court notes that in his objection against the indictment the applicant did not challenge the legal classification of the charges under Article 215 §§ 1, 3 and 5 of the 1993 Criminal Code, nor did he argue that another provision should be applied. In fact, he only challenged the factual findings on which the indictment was based and contended that all of the impugned conduct should be classified as one offence under Article 215 §§ 1, 3 and 5, taken in conjunction with Article 206 § 1 (forgery of documents) of the 1993 Criminal Code (see paragraph 6 above). When confirming the indictment, the three-judge panel of the County Court accepted the applicability of Article 215 §§ 1, 3 and 5, without considering that the impugned conduct should be classified under some other provision of the Criminal Code (see paragraph 7 above).
60. After the 1997 Criminal Code had come into force, the applicant himself invited the trial court to order the prosecution to amend the indictment in line with the relevant changes in the law. He considered that a similar provision to the one under Article 215 §§ 1, 3 and 5 of the 1993 Criminal Code was now provided for under Article 337 of the 1997 Criminal Code (see paragraph 8 above). The prosecutor amended the indictment, charging the applicant under Article 337 §§ 1, 3 and 4 of the 1997 Criminal Code. The prosecutor considered that the 1997 Criminal Code was more favourable to the applicant (see paragraph 9 above). The applicant was later convicted under that provision in the first-instance proceedings before the County Court (see paragraph 12 above).
61. In this connection, the Court notes that Article 215 §§ 1, 3 and 5 of the 1993 Criminal Code, as the provisions applicable at the time of the commission of the impugned acts, prescribed a sentence of imprisonment of three to fifteen (or even potentially twenty) years (see paragraphs 23-24 above). On the other hand, under Article 337 §§ 1, 3 and 4 of the Criminal Code, the prescribed range of sentences of imprisonment went from one to ten years (see paragraph 27 above). Thus, under the 1997 Criminal Code, both the statutory minimum and maximum sentences were more favourable to the applicant (see, by contrast, Maktouf and Damjanović, cited above, § 68).
62. Unlike Article 215 §§ 1, 3 and 5 of the 1993 Criminal Code, which applied only if the impugned acts did not constitute some other offence, Article 337 §§ 1, 3 and 4 of the 1997 Criminal Code did not contain such a provision. However, the Court notes that in the applicant’s case, there was never a question that the relevant classification under Article 215 §§ 1, 3 and 5 of the 1993 Criminal Code (or Article 337 §§ 1, 3 and 4 of the 1997 Criminal Code) should be replaced by some other provision. In this connection, as already noted, the applicant was initially indicted under Article 215 §§ 1, 3 and 5 of the 1993 Criminal Code, and that indictment and legal classification of the offence was confirmed by the relevant court (see, by contrast, paragraphs 35-36 above, concerning a case where the appellant had initially been indicted under Article 337 of the Criminal Code, although Article 215 of the 1993 Criminal Code had been applicable at the moment of the commission of the relevant offence).
63. Moreover, when finding the applicant guilty, the trial court found that the evidence adduced and the facts established during the proceedings left no doubt that he had committed the offence of abuse of power and authority, and such findings were confirmed by the Supreme Court (see paragraphs 12 and 15 above). For its part, the Court does not see that those findings were based on an unreasonable assessment of the evidence, and thus finds no reason to call them into question (see Rohlena, cited above, § 51). In any event, the Court notes that the applicant’s arguments as regards the subsidiary applicability of Article 215 §§ 1, 3 and 5 of the 1993 Criminal Code, and its effect on the applicability of Article 337 §§ 1, 3 and 4 of the Criminal Code, are vague and unsubstantiated (see paragraph 47 above).
64. Accordingly, in view of the above considerations, there is no reason to consider that, despite the more favourable statutory minimum and maximum penalties, Article 337 §§ 1, 3 and 4 of the 1997 Criminal Code was not a provision more favourable to the applicant than Article 215 §§ 1, 3 and 5 of the 1993 Criminal Code, which was in force at the time of the commission of the offence. In these circumstances, the Court finds that no issue arises under Article 7 of the Convention as regards the retroactive application of Article 337 §§ 1, 3 and 4 of the 1997 Criminal Code to the applicant’s case.
65. Further, the Court notes that due to the subsequent changes in criminal legislation, Article 337 §§ 1, 3 and 4 of the 1997 Criminal Code did not remain in force. At the time of the Supreme Court’s examination of the applicant’s case, the law changed, and Article 337 §§ 1, 3 and 4 of the 1997 Criminal Code was effectively split into two different provisions of the 2011 Criminal Code: Article 246, related to abuse of trust in a business activity; and Article 291, related to abuse of position and authority in the performance of official duties (see paragraphs 29-30 and 32 above). After that legislative change, acting proprio motu to establish the law most favourable to the applicant (see paragraph 29 above), the Supreme Court reclassified the applicant’s first-instance conviction and convicted him under Article 246 § 2 of the 2011 Criminal Code, reducing his sentence of imprisonment by six months (see paragraph 14 above).
66. In this connection, the Court notes that the central tenet of the applicant’s complaint is that there was no continuity between Article 337 §§ 1, 3 and 4 of the 1997 Criminal Code and Article 246 § 2 of the 2011 Criminal Code. However, the Court notes that as regards offences committed by persons in positions of responsibility in the performance of a business activity, the continuity between these two provisions was clearly established and had already been elaborated in the process of the legislative amendments (see paragraph 30 above). Moreover, in its extensive case-law on the matter, the Supreme Court followed the same approach, finding that there was continuity between the two provisions (see paragraphs 31-33 above). Thus, finding no reason to call this position into question, the Court considers that the continuity between the two provisions was sufficiently clear and foreseeable to the applicant.
67. As regards the question of which provision was most favourable to the applicant, the Court notes that the range of minimum and maximum sentences of imprisonment under the two provisions was the same, namely one to ten years’ imprisonment (see paragraphs 27 and 29 above). However, in its consistent case-law, the Supreme Court has considered Article 246 § 2 of the 2011 Criminal Code to be more lenient, as it required a larger amount of acquired unlawful pecuniary gain or damage in order for conduct to amount to an aggravated form of the criminal offence of abuse of trust in a business activity (see paragraphs 31-33 above). Thus, as already noted, by applying Article 246 § 2 of the 2011 Criminal Code to the applicant’s case, as the more lenient law, the Supreme Court considered that his sentence should be reduced by six months.
68. In this connection, the Court has taken note of the Constitutional Court’s criticism of the Supreme Court’s case-law placing a decisive emphasis on the value of the pecuniary gain obtained or damage caused when determining which law was more lenient towards the accused (see paragraph 37 above). However, the Court reiterates that it is not its task to review in abstracto whether the retroactive application of a criminal Code is, per se, incompatible with Article 7 of the Convention. This matter must be assessed on a case-by-case basis, taking into consideration the specific circumstances of each case and, notably, whether the domestic courts have applied the law whose provisions are most favourable to the defendant (see Maktouf and Damjanović, cited above, § 65).
69. In the present case, given the undoubtedly more favourable effect of the application of Article 246 § 2 of the 2011 Criminal Code in the applicant’s case, and having found that there was continuity between that provision and Article 337 §§ 1, 3 and 4 of the 1997 Criminal Code, the Court is satisfied that the domestic courts applied the law whose provisions were most favourable to the applicant. In any event, the Court notes that the applicant provided no arguments suggesting that the Supreme Court had erred in its finding that Article 246 § 2 of the 2011 Criminal Code was a more lenient provision than Article 337 §§ 1, 3 and 4 of the 1997 Criminal Code.
70. Lastly, in so far as the applicant complains about the confiscation of the proceeds of crime, the Court notes that the application of such a measure was envisaged under all the Criminal Codes applied in his case (see paragraphs 23-25, 27 and 29 above), and thus this does not raise any issue of retroactivity (see, by contrast, Welch v. the United Kingdom, 9 February 1995, § 26, Series A no. 307‑A).
71. In view of the above considerations, the Court is satisfied that the manner in which the relevant provisions of criminal law were applied in the applicant’s case, having regard to the succession of Criminal Codes (the 1993, 1997 and 2011 Criminal Codes), did not run counter to the requirements of Article 7 of the Convention.
72. The Court therefore finds that the applicant’s complaint is manifestly ill-founded and must 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 26 March 2020.
Renata Degener Krzysztof Wojtyczek
Registrar President
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1. After the change of currency to Croatian kunas, the amendments to the 1993 Criminal Code of April 1996 (Official Gazette, no 28/1996) changed “two million Croatian dinars” to “one hundred kunas”
2. The maximum term of a sentence of imprisonment was fifteen or, exceptionally, twenty years (Article 35 of the Basic Criminal Code)
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