Last Updated on May 18, 2019 by LawEuro
FIRST SECTION
DECISION
Application no. 792/16
Tomislav MESIĆ against Croatia
and 4 other applications
(see list appended)
The European Court of Human Rights (First Section), sitting on 12 February 2019 as a Committee composed of:
Armen Harutyunyan, President,
Ksenija Turković,
Pauliine Koskelo, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above applications lodged on the various dates indicated in the appended table,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. A list of the applicants is set out in the appendix.
2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Mesić v. Croatia, application no. 792/16
4. On 2 May 2010 the Zagreb Minor Offences Court (Prekršajni sud u Zagrebu) found the applicant guilty of inciting and encouraging a fight during a football match on 1 May 2010 and of hitting a police officer with a broken seat, as well as of being under the influence of alcohol in a sports facility, contrary to the Prevention of Disorder at Sports Events Act (Zakon o sprječavanju nereda na športskim natjecanjima – hereinafter “the Act”). He was sentenced to thirty days in prison, suspended for one year, and fined 1,000 Croatian kunas (HRK – approximately 130 euros). In addition, under section 32(1) of the Act, a protective measure (zaštitna mjera) was applied, prohibiting the applicant from attending all football matches of Dinamo Zagreb Football Club and of the Croatian national team in Croatia for one year. The judgment became final on the same day as the applicant waived his right to appeal.
5. On 22 February 2014 the Zagreb Minor Offences Court found the applicant guilty of unlawfully entering a stadium during a football match on 21 February 2014, contrary to the Act. He was sentenced to ten days in prison, suspended for six months. In addition, under section 32(1) of the Act, the protective measure was applied, prohibiting the applicant from attending all football matches of Dinamo Zagreb Football Club and of the Croatian national team in Croatia for one year. The judgment became final on the same day as the applicant waived his right to appeal.
6. On 20 July 2015 the Zagreb Minor Offences Court, on the basis of a request by the police, applied a measure under section 34a(1) of the Act (“the exclusion measure”) in respect of the applicant and prohibited him from attending all football matches of Dinamo Zagreb and of the Croatian national team both in Croatia and abroad for a period of one year. It also ordered him to report to the police station two hours before every relevant football match to provide information on his whereabouts during the football match and the two hours after it ended.
7. The Zagreb Minor Offences Court reasoned its decision by relying on information provided by the police, including the applicant’s behaviour at the football match on 1 May 2010 and the judgment of 22 February 2014 which had found him guilty of hooliganism (see paragraphs 4 and 5 above), and stressed that the measure was needed in order to prevent him from committing further minor offences.
8. The applicant appealed against this decision to the High Minor Offences Court (Visoki prekršajni sud Republike Hrvatske). He argued, in particular, that the subsequent imposition of the exclusion measure on him for the same conduct of which he had already been found guilty and sentenced amounted to a breach of the ne bis in idem principle.
9. On 7 September 2015 the High Minor Offences Court dismissed the applicant’s appeal on the grounds that the application of the exclusion measure was not a penalty imposed against him but a measure preventing his future disorderly conduct.
2. Zečević v. Croatia, application no. 5677/16
10. By final judgments of the Zagreb Minor Offences Court and the High Minor Offences Court the applicant was acquitted of charges of hooliganism during football matches on 1 May 2010, 10 March 2013 and 10 August 2013.
11. On 9 July 2015 the Zagreb Minor Offences Court, on the basis of a request by the police, applied the exclusion measure in respect of the applicant and prohibited him from attending all football matches of Dinamo Zagreb and of the Croatian national team both in Croatia and abroad for a period of one year. It also ordered him to report to the police station two hours before every relevant football match to provide information on his whereabouts during the football match and the two hours after it ended.
12. The Zagreb Minor Offences Court reasoned its decision by relying on information provided by the police, including the fact that the applicant had been prosecuted for hooliganism (see paragraph 10 above), and stressed that the measure was needed in order to prevent him from committing further minor offences.
13. The applicant appealed against this decision to the High Minor Offences Court. He argued, in particular, that the subsequent imposition of the exclusion measure on him for the same conduct for which he had already been prosecuted amounted to a breach of the ne bis in idem principle.
14. On 24 September 2015 the High Minor Offences Court dismissed the applicant’s appeal on the grounds that the application of the exclusion measure was not a penalty imposed against him but a measure preventing his future disorderly conduct, which could be applied on the basis of any information suggesting such conduct.
3. Jurić v. Croatia, application no. 21599/16
15. On 19 December 2013 the Split Minor Offences Court (Prekršajni sud u Splitu) found the applicant guilty of shouting out offensive remarks during a football match on 18 December 2013, the content of which could incite hatred on the basis of race, nationality or faith, and fined him HRK 1,000. In addition, the protective measure was applied, prohibiting the applicant from attending all football matches of Dinamo Zagreb and of the Croatian national team in Croatia for a period of one year. As part of the measure, the applicant was ordered to report to the police two hours before every relevant football match to provide information on his whereabouts during the football match and the two hours after it ended. The judgment became final on the same day.
16. On 8 September 2015 the Zagreb Minor Offences Court, on the basis of a request by the police, applied the exclusion measure in respect of the applicant and prohibited him from attending all football matches of Dinamo Zagreb and of the Croatian national team both in Croatia and abroad for a period of one year. It also ordered him to report to the police station two hours before every relevant football match to provide information on his whereabouts during the football match and the two hours after it ended.
17. The Zagreb Minor Offences Court reasoned its decision by relying on information provided by the police, including the applicant’s behaviour during the football match on 18 December 2013 (see paragraph 15 above), and stressed that the measure was needed in order to prevent him from committing further minor offences.
18. The applicant appealed against this decision to the High Minor Offences Court. He argued, in particular, that the subsequent imposition of the exclusion measure on him for the same conduct of which he had already been convicted amounted to a breach of the ne bis in idem principle.
19. On 7 October 2015 the High Minor Offences Court dismissed the applicant’s appeal on the grounds that the application of the exclusion measure was not a penalty imposed against him but a measure preventing his future disorderly conduct.
4. Vrhovski v. Croatia, application no. 27292/16
20. On 28 January 2014 the Split Minor Offences Court acquitted the applicant of charges of hooliganism during a football match on 15 August 2012. The judgment became final on 19 April 2014.
21. On 20 July 2015 the Zagreb Minor Offences Court, on the basis of a request by the police, applied the exclusion measure in respect of the applicant and prohibited him from attending all football matches of Dinamo Zagreb and of the Croatian national team both in Croatia and abroad for a period of one year. It also ordered him to report to the police station two hours before every relevant football match to provide information on his whereabouts during the football match and the two hours after it ended.
22. The Zagreb Minor Offences Court reasoned its decision by relying on information provided by the police, including the fact that the applicant had been prosecuted for hooliganism (see paragraph 20 above), and stressed that the measure was needed in order to prevent him from committing further minor offences.
23. The applicant appealed against this decision to the High Minor Offences Court. He argued, in particular, that the subsequent imposition of the exclusion measure on him for the same conduct for which he had already been prosecuted amounted to a breach of the ne bis in idem principle.
24. On 22 December 2015 the High Minor Offences Court dismissed the applicant’s appeal on the grounds that the application of the exclusion measure was not a penalty imposed on the applicant but a measure preventing his future disorderly conduct, which could be applied on the basis of any information suggesting such conduct.
5. Jeđud v. Croatia, application no. 38450/16
25. On 31 December 2013 the Virovitica Minor Offences Court (Prekršajni sud u Virovitici) found the applicant and several other individuals guilty of being in an intoxicated condition at a football match on 25 September 2013, contrary to the Act. The decision became final on 18 November 2014.
26. On 13 November 2014 the Koprivnica Minor Offences Court (Prekršajni sud u Koprivnici) dismissed charges of hooliganism against the applicant relating to an incident at a football match on 20 March 2010.
27. On 9 September 2015 the Zagreb Minor Offences Court, on the basis of a request by the police, applied the exclusion measure in respect of the applicant and prohibited him from attending all football matches of Dinamo Zagreb and of the Croatian national team both in Croatia and abroad for a period of one year. It also ordered him to report to the police station two hours before every relevant football match to provide information on his whereabouts during the football match and the two hours after it ended.
28. The Zagreb Minor Offences Court reasoned its decision by relying on information provided by the police, including the fact that the applicant had been prosecuted for hooliganism (see paragraphs 25-26 above), and stressed that the measure was needed in order to prevent him from committing further minor offences.
29. The applicant appealed against this decision to the High Minor Offences Court. He argued, in particular, that the subsequent imposition of the exclusion measure on him for the same conduct for which he had already been prosecuted amounted to a breach of the ne bis in idem principle.
30. On 2 October 2015 the High Minor Offences Court dismissed the applicant’s appeal on the grounds that the application of the exclusion measure was not a penalty imposed on him but a measure preventing his future disorderly conduct, which could be applied on the basis of any information suggesting such conduct. The decision was served on the applicant and his lawyer on 23 and 24 December 2015 respectively.
31. The applicant challenged this decision before the Constitutional Court (Ustavni sud Republike Hrvatske) and on 30 March 2016 the Constitutional Court declared his constitutional complaint inadmissible on the grounds that it was not in reference to a specific decision about the applicant’s rights and obligations or any criminal charge against him which was amenable to challenge by a constitutional complaint.
B. Relevant law and practice
32. The relevant domestic and international law and practice is set out in the case of Seražin v. Croatia ((dec.), no. 19120/15, §§ 26-55, 9 October 2018).
COMPLAINT
33. The applicants complained that they had been tried and/or punished twice for the same conduct; first in the minor offences proceedings concerning the charges of hooliganism and then in proceedings concerning the application of the exclusion measure prohibiting them from attending sports events.
THE LAW
34. The applicants relied on Article 4 of Protocol No. 7 to the Convention, which reads as follows:
“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.
2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.
3. No derogation from this Article shall be made under Article 15 of the Convention.”
A. The parties’ arguments
35. The Government contended that the proceedings against the applicants, in which the exclusion measure had been applied, had neither concerned a criminal matter within the meaning of Article 6 of the Convention, nor the application of a penalty within the meaning of Article 7, and thus had not given rise to a ne bis in idem issue when combined with the prosecutions in minor offences proceedings for hooliganism.
36. As to application no. 38450/16, the Government contended that it had not been lodged within the six-month time-limit which was to be counted from the date when the High Minor Offences Court’s judgment had been served on the applicant, since his constitutional complaint had been inadmissible (see paragraphs 30-31 above).
37. The applicants maintained that the exclusion measure was criminal in nature and that therefore there had been a breach of the ne bis in idem principle.
B. The Court’s assessment
38. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly.
39. The Court finds that it is not necessary to address the Government’s objection that the application no. 38450/16 was lodged outside the six‑month period as the applicants’ complaint is in any event inadmissible for the following reasons.
40. In the recent case of Seražin (cited above), the Court examined the same issue as arises in the present case; namely whether the proceedings concerning the application of the exclusion measure, which in that case took into account and relied on the applicant’s conviction for hooliganism, amounted to the application of a “penalty” in “criminal proceedings” and thus ran counter to Article 4 of Protocol No. 7 (ibid., § 62). After analysing in detail the exclusion measure on the basis of the three criteria commonly known as the “Engel criteria” (see Engel and Others v. the Netherlands, 8 June 1976, § 82, Series A no. 22), to be considered in determining whether or not there was a “criminal charge”, the Court found that the measure did not involve the determination of a “criminal charge” and that consequently Article 4 of Protocol No. 7 did not apply to the case (ibid., §§ 67-92).
41. Having examined all the submitted material, the Court finds that the applicants have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present cases.
42. Accordingly, the applicants’ complaints are incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 14 March 2019.
Renata Degener Armen Harutyunyan
Deputy Registrar President
APPENDIX
| No. | Application no. | Lodged on | Applicant Date of birth Nationality Place of residence |
Represented by |
| 1 | 792/16 | 14/12/2015 | Tomislav MESIĆ 07/05/1983 Croatian Zagreb |
Davorin KARAČIĆ |
| 2 | 5677/16 | 18/01/2016 | Ivan ZEČEVIĆ 05/10/1985 Croatian Zagreb |
Davorin KARAČIĆ |
| 3 | 21599/16 | 15/04/2016 | Tomislav JURIĆ 07/05/1979 Croatian Zagreb |
Davorin KARAČIĆ |
| 4 | 27292/16 | 09/05/2016 | Ranko VRHOVSKI 03/01/1985 Croatian Zagreb |
Davorin KARAČIĆ |
| 5 | 38450/16 | 29/06/2016 | Vanja JEĐUD 07/06/1990 Croatian Zagreb |
Davorin KARAČIĆ |
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