Last Updated on May 19, 2019 by LawEuro
Information Note on the Court’s case-law 223
November 2018
Seražin v. Croatia (dec.) – 19120/15
Decision 9.10.2018 [Section I]
Article 4 of Protocol No. 7
Right not to be tried or punished twice
Exclusion measure prohibiting person convicted of hooliganism from attending sports events: inadmissible
Facts – The applicant complained that he had been tried and punished twice for the same conduct. In 2012 he had been convicted and sentenced in minor offences proceedings on charges of hooliganism. In addition, a “protective measure” under section 32 of the Prevention of Disorder at Sports Events Act (“the Act”) had been applied prohibiting him from attending certain football matches. Later proceedings in 2014 led to the application of an “exclusion measure” under section 34a of the Act which referred, inter alia, to the applicant’s prior convictions, including that of 2012, and prohibited him from attending certain sports events.
Law – Article 4 of Protocol No. 7
(a) Legal classification of the measure under national law – The domestic legal classification of the exclusion measure under section 34a of the Act was a preventive measure distinct from any penalty that could be applied in criminal or minor offences proceedings. The consistent approach taken by the High Minor Offences Court and the Constitutional Court had been to consider the measure to be a sui generis preventive measure and not a penalty.
(b) Very nature of the measure – The Court had not yet had an opportunity to examine whether the application of exclusion measures in the context of suppression and prevention of spectator violence amounted to a “criminal charge” against an individual within the autonomous meaning of the Convention. Such measures existed in various forms in national legal systems and there was wide support for their introduction and application. There was a strong emphasis, both in the relevant international materials and in the comparative law, on the preventative nature of exclusion measures in the context of suppression and prevention of spectator violence.*
There were at least two important distinctive features of the exclusion measure under section 34a when compared to the protective measure under section 32, which undoubtedly amounted to a sanction, even in terms of the relevant domestic law.
The first distinctive feature was the fact that the exclusion measure under section 34a could be applied independently of a criminal or minor offences prosecution and conviction of an individual. Unlike the measure under section 32, the exclusion measure under section 34a could not be applied as a supplementary sanction for the commission of an offence, nor could a request for its application be part of the sentencing procedure in the context of a minor offences or criminal prosecution. Moreover, in order to apply the measure, it was not necessary to meet the standard of proof for the conviction of an offence but simply to demonstrate that there was “information of previous unlawful conduct”. Thus, unlike the sanctions, which implied, to a greater or lesser degree, retribution and deterrence, the application of the exclusion measure under section 34a did not pursue any such aim and accordingly fell under the preventive limb of the general aims of the Act.
The exclusion measure operated independently of a minor offences conviction and its application was not a direct consequence of the applicant’s conviction as it remained open to the relevant minor offences court to, irrespective of his previous conviction, apply or refuse the application of the measure under section 34a. His previous conviction merely lent evidentiary support to the determination of whether there was “information of previous unlawful conduct”. The fact that there had been a previous conviction, of course, increased the likelihood of a measure under section 34a being applied but that did not affect the fact that the measure was applied to prevent a future threat of possible violence and not to subject the applicant to a second punishment for the same offence.
The absence of a predominantly punitive and deterrent purpose of a measure, which were the elements customarily recognised as the two aspects of a penalty, and the emphasis on its preventive nature was one of the main indications that the application of the measure in question did not involve the determination of a “criminal charge” within the autonomous meaning of the Convention.
The second distinctive feature of the exclusion measure under section 34a, when compared to the protective measure as a sanction under section 32 of the Act, related to its duration and the manner of its application. The measure under section 32 could be imposed for a minimum period of one year, which was the same as the maximum period for which the measure under section 34a could be imposed. Moreover, unlike the measure under section 32, the measure under section 34a did not require the confiscation of travel documents or an individual to remain at a police station during sports events. The measure under section 34a was limited to reporting to a police station. Those important differences also supported the finding as to the distinct nature of the protective measure under section 32 of the Act, as a sanction, and the exclusion measure under section 34a as a sui generis preventive measure in domestic law which did not have a penal connotation.
(c) Degree of severity of the measure – The application of the exclusion measure under section 34a did not involve the imposition of a fine or a deprivation of liberty, which were normally an indication of a criminal sanction. It was true that non-compliance with the exclusion measure could result in a fine and imprisonment but that would not be a direct consequence. Such non-compliance was treated as a separate minor offence and an entirely new set of minor offences proceedings would be needed in order to impose any of those sanctions. Such an indirect ability to apply the sanctions was not sufficient to determine the measure as “criminal”.
(d) Conclusion – The application of the exclusion measure under section 34a of the Act in respect of the applicant did not involve the determination of a “criminal charge” and therefore Article 4 of Protocol No. 7 was not applicable.
Conclusion: inadmissible (incompatible ratione materiae).
(See also A and B v. Norway [GC], 24130/11 and 29758/11, 15 November 2016, Information Note 201; Sergey Zolotukhin v. Russia [GC], 14939/03, 10 February 2009, Information Note 116; Engel and Others v. the Netherlands, 5100/71 et al., 8 June 1976; Ostendorf v. Germany, 15598/08, 7 March 2013, Information Note 161; and Escoubet v. Belgium [GC], 26780/95, 28 October 1999, Information Note 11)
* See, for example, the European Convention on Spectator Violence and Misbehaviour at Sports Events and in particular at Football Matches (ETS No. 120) of 19 August 1985; the Standing Committee Report concerning Georgia (T-RV (2014) 25), 15 February 2015, pp. 36-37; and the Standing Committee Report concerning Slovakia (T-RV (2015) 05), 12 December 2015.
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