CASE OF URH v. CROATIA (European Court of Human Rights) 60130/16

FIRST SECTION
CASE OF URH v. CROATIA
(Application no. 60130/16)
JUDGMENT
STRASBOURG
13 January 2022

This judgment is final but it may be subject to editorial revision.

In the case of Urh v. Croatia,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

Péter Paczolay, President,
Alena Poláčková,
Gilberto Felici, judges,
and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 60130/16) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 11 October 2016 by a Croatian national, Mr Dragutin Urh, born in 1962 and living in Rijeka (“the applicant”) who was represented by Mr G. Marjanović, a lawyer practising in Rijeka;

the decision to give notice of the complaint concerning the right not to be tried twice to the Croatian Government (“the Government”), represented by their Agent, Mrs Š. Stažnik, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 7 December 2021,

Delivers the following judgment, which was adopted on that date:

SUBJECT-MATTER OF THE CASE

1. On 26 August 2011 the applicant was fined 500 Croatian kunas (HRK, approximately 66 euros (EUR)) in minor-offence proceedings for disturbance of public peace and order for having physically assaulted a certain N.M. and hit him with closed fists all over his face and body on 21 April 2011.

2. By a judgment of 1 October 2013, which was upheld on appeal on 26 March 2014, the applicant was also convicted and sentenced to a suspended prison sentence in criminal proceedings initiated by N.M. for hitting him with closed fists all over his face and body thereby inflicting him bodily injury on 21 April 2011.

3. The applicant’s subsequent constitutional complaint was dismissed on 19 May 2016.

4. The applicant complained that he had been tried and convicted twice for the same offence contrary to Article 4 of Protocol No. 7 to the Convention.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 4 of PROTOCOL nO. 7 TO THE CONVENTION

5. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other ground. It must therefore be declared admissible.

6. The general principles concerning ne bis in idem have been summarized in A and B v. Norway [GC] (nos. 24130/11 and 29758/11, §§ 101-154, ECHR 2016).

7. The Court has already found a violation of the right not to be tried or punished twice for the same offence in almost identical circumstances in the case of Maresti v. Croatia (no. 55759/07, §§ 55-69, 25 June 2009). It does not discern any reason not to come to the same conclusion in the present case.

8. In particular, bearing in mind that the physical attack on N.M. had constituted an element of the minor offence of which the applicant was found guilty, and that, in the criminal proceedings, he was again found guilty of, inter alia, hitting N.M. (compare, Maresti, cited above, § 63), the Court does not consider that the two sets of proceedings pursued complementary purposes (contrast Bajčić v. Croatia, no. 67334/13, § 41, 8 October 2020).

9. Given the change in practice of the Croatian authorities following the adoption of the Maresti judgment, the Court further considers that it had not been foreseeable for the applicant that he would be tried in criminal proceedings once the minor-offence conviction against him had become final.

10. Having reviewed the circumstances of the case as a whole, the Court thus considers that the two sets of proceedings cannot be said to have been sufficiently connected in substance, as required under the Court’s case‑law, to form part of an integral scheme of sanctions under Croatian law for hitting a person in a public space (see, mutatis mutandis, Milošević v. Croatia, no. 12022/16, § 42, 31 August 2021). On the contrary, having been punished twice for the same conduct, the applicant had in the Court’s view suffered disproportionate prejudice resulting from the duplication of proceedings and penalties, which did not form a coherent and proportionate whole in his case (see, mutatis mutandis, A and B v. Norway, cited above, §§ 112, 130 and 147).

11. In such circumstances, the Court finds it unnecessary to review whether the two sets of proceedings were sufficiently connected in time (see the relevant criteria set out in A and B v. Norway, cited at paragraph 6 above; see also Tsonyo Tsonev v. Bulgaria (no. 4), no. 35623/11, § 50, 6 April 2021).

12. There has accordingly been a violation of Article 4 of Protocol No. 7 to the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

13. The applicant claimed EUR 5,000 in respect of pecuniary and non‑pecuniary damage. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. Moreover, in the circumstances of the present case the Court considers that a finding of a violation of Article 4 of Protocol No. 7 to the Convention constitutes in itself sufficient just satisfaction for any non-pecuniary damage the applicant may have sustained (see Maresti, cited above, § 75).

14. The applicant also claimed EUR 1,500 in respect of costs and expenses incurred before the Court. Having regard to the documents in its possession, the Court considers it reasonable to award him the requested amount, plus any tax that may be chargeable to the applicant.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 4 of Protocol No. 7 to the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be converted into Croatian kunas at the rate applicable at the date of settlement:

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 13 January 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Liv Tigerstedt                             Péter Paczolay
Deputy Registrar                            President

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