(Application no. 55759/07)
25 June 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Maresti v. Croatia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Christos Rozakis, President,
Sverre Erik Jebens,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 4 June 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
1. Minor-offences proceedings against the applicant
“Defendant: Armando Maresti ...
in that at 7 p.m. on 15 June 2005 at the coach terminal in Pazin, while under the influence of alcohol, he ... firstly insulted D.R. ... and then pushed him with both hands and, when he fought back, started to hit him with his fists many times to the head before continuing to punch and kick him about his entire body.
2. Proceedings on indictment
Proceedings in respect of A.M.
Proceedings in respect of D.R.
“Defendant Armando Maresti ...
2) at about 7 p.m. on 15 June 2005. at the coach terminal in Pazin, while under the influence of alcohol, he ... approached D.R. ... and firstly insulted him verbally, ... and then proceeded to push him with both hands before hitting him on the head with his fists breaking his dental prosthesis; when he [D.R.] attempted to leave, the defendant caught him, pushed him to the ground and kicked him about his entire body thereby causing him a number of injuries...”
II. RELEVANT DOMESTIC LAW
“Correspondence for which this Act does not specifically prescribe personal service shall also be served personally. Where, however, the intended recipient is not found on the premises..., it may be served on an adult member of the same household who shall be bound to accept service...”
“An infringement of the Criminal Code arises if:
3. there exist circumstances which exclude criminal prosecution, in particular, where ... the matter has already been finally adjudicated,
“(1) A defendant who has been finally sentenced to a prison term ... may lodge a request for the extraordinary review of a final judgment on account of infringements of this Act.
(2) A request for the extraordinary review of a final judgment shall be lodged within a month after the final judgment has been served on the defendant.
“The Supreme Court shall decide requests for the extraordinary review of a final judgment.”
“A request for the extraordinary review of a final judgment may be lodged [in respect of]:
1. an infringement of the Criminal Code to the detriment of the convicted person under Article 368(1)-(4) of this Act...
3. an infringement of the defence rights at the trial or of the procedural rules at the appellate stage, if it may have influenced the judgment.”
“Whoever inflicts bodily injury on another or impairs another's health shall be sentenced to imprisonment for a term of no less than three months and not exceeding three years.”
“Anyone who behaves in a particularly offensive or rude manner in a public place by insulting citizens or disturbing the peace shall be liable to a fine ... or to a term of imprisonment not exceeding sixty days.”
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
“... under the CCrP, supervisory-review complaints may be brought at any time after a judgment becomes enforceable, even years later.
Furthermore, pursuant to Article 403 of the CCrP, if the Presidium of a Regional Court dismisses a supervisory-review complaint, it may be re-submitted to the Supreme Court. Pursuant to Article 406-4 of the CCrP, where a judge refuses to transfer a supervisory-review complaint to a supervisory-review court, the President of the court may overrule the judge's decision. Exercise of these rights is also not subject to a time-limit.
The Court considers that if the supervisory-review procedure under the CCrP were considered a remedy to be exhausted, the uncertainty thereby created would render nugatory the six-month rule.”
The parties' submissions
The Court's assessment
II. ALLEGED VIOLATION OF ARTICLE 4 PROTOCOL NO. 7 TO THE CONVENTION
“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.”
The parties submissions
The Court's assessment
A. Whether the first penalty was criminal in nature
B. Whether the offences for which the applicant was prosecuted were the same (idem)
“78. The Court considers that the existence of a variety of approaches to ascertaining whether the offence for which an applicant has been prosecuted is indeed the same as the one of which he or she was already finally convicted or acquitted engenders legal uncertainty incompatible with a fundamental right, namely the right not to be prosecuted twice for the same offence. It is against this background that the Court is now called upon to provide a harmonised interpretation of the notion of the 'same offence' – the idem element of the non bis in idem principle – for the purposes of Article 4 of Protocol No. 7. While it is in the interests of legal certainty, foreseeability and equality before the law that the Court should not depart, without good reason, from precedents laid down in previous cases, a failure by the Court to maintain a dynamic and evolutive approach would risk rendering it a bar to reform or improvement (see Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 56, ECHR 2007 ...).
79. An analysis of the international instruments incorporating the non bis in idem principle in one or another form reveals the variety of terms in which it is couched. Thus, Article 4 of Protocol No. 7 to the Convention, Article 14 § 7 of the UN Covenant on Civil and Political Rights and Article 50 of the Charter of Fundamental Rights of the European Union refer to the '[same] offence' ('[même] infraction'), the American Convention on Human Rights speaks of the 'same cause' ('mêmes faits'), the Convention Implementing the Schengen Agreement prohibits prosecution for the 'same acts' ('mêmes faits'), and the Statute of the International Criminal Court employs the term '[same] conduct' ('[mêmes] actes constitutifs') . The difference between the terms 'same acts' or 'same cause' ('mêmes faits') on the one hand and the term '[same] offence' ('[même] infraction') on the other was held by the Court of Justice of the European Communities and the Inter-American Court of Human Rights to be an important element in favour of adopting the approach based strictly on the identity of the material acts and rejecting the legal classification of such acts as irrelevant. In so finding, both tribunals emphasised that such an approach would favour the perpetrator, who would know that, once he had been found guilty and served his sentence or had been acquitted, he need not fear further prosecution for the same act...
80. The Court considers that the use of the word 'offence' in the text of Article 4 of Protocol No. 7 cannot justify adhering to a more restrictive approach. It reiterates that the Convention must be interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory. It is a living instrument which must be interpreted in the light of present-day conditions (see, among other authorities, Tyrer v. the United Kingdom, 25 April 1978, § 31, Series A no. 26, and Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 75, ECHR 2002 VI). The provisions of an international treaty such as the Convention must be construed in the light of their object and purpose and also in accordance with the principle of effectiveness (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 123, ECHR 2005 I).
81. The Court further notes that the approach which emphasises the legal characterisation of the two offences is too restrictive on the rights of the individual, for if the Court limits itself to finding that the person was prosecuted for offences having a different legal classification it risks undermining the guarantee enshrined in Article 4 of Protocol No. 7 rather than rendering it practical and effective as required by the Convention (compare Franz Fischer, cited above, § 25).
82. Accordingly, the Court takes the view that Article 4 of Protocol No. 7 must be understood as prohibiting the prosecution or trial of a second 'offence' in so far as it arises from identical facts or facts which are substantially the same.
83. The guarantee enshrined in Article 4 of Protocol No. 7 becomes relevant on commencement of a new prosecution, where a prior acquittal or conviction has already acquired the force of res judicata. At this juncture the available material will necessarily comprise the decision by which the first 'penal procedure' was concluded and the list of charges levelled against the applicant in the new proceedings. Normally these documents would contain a statement of facts concerning both the offence for which the applicant has already been tried and the offence of which he or she stands accused. In the Court's view, such statements of fact are an appropriate starting point for its determination of the issue whether the facts in both proceedings were identical or substantially the same. The Court emphasises that it is irrelevant which parts of the new charges are eventually upheld or dismissed in the subsequent proceedings, because Article 4 of Protocol No. 7 contains a safeguard against being tried or being liable to be tried again in new proceedings rather than a prohibition on a second conviction or acquittal...
84. The Court's inquiry should therefore focus on those facts which constitute a set of concrete factual circumstances involving the same defendant and inextricably linked together in time and space, the existence of which must be demonstrated in order to secure a conviction or institute criminal proceedings.
C. Whether there was a duplication of proceedings (bis)
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the finding of a violation constitutes sufficient just satisfaction;
(b) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 4,100 (four thousand one hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement;
(c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 25 June 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis