CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 14 janvier 2014

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BOSNIA AND HERZEGOVINA   (Application no. 32042/11)             JUDGMENT       STRASBOURG     14 January 2014     FINAL   14/04/2014   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Muslija v. Bosnia and Herzegovina, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Ineta Ziemele, President,   Päivi Hirvelä,   Ledi Bianku,   Vincent A. De Gaetano,   Paul Mahoney,   Faris Vehabović,   Robert Spano, judges, and Françoise Elens-Passos, Section Registrar, Having deliberated in private on 10 December 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 32042/11) against Bosnia and Herzegovina lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a citizen of Bosnia and Herzegovina, Mr Adnan Muslija (“the applicant”), on 14 April 2011. 2.     The applicant was represented by Mr K. Kolić, a lawyer practising in Sarajevo. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Deputy Agent, Ms Z. Ibrahimović. 3.     The applicant alleged, in particular, that he had been tried and punished twice for the same offence in respect of the same incident. 4.     On 21 November 2012 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1969 and lives in Sarajevo. A.     Conviction of a minor offence 6.     On 13 February 2003 the Kakanj police lodged a request for minor-offences proceedings to be instituted against the applicant in the Kakanj Minor Offences Court (“the Minor Offences Court”). 7 .     In a decision of 16 August 2004 the Minor Offences Court found that, at about 6.40 p.m. on 12 February 2003, the applicant had physically attacked his former wife, M.P., at her flat in Kakanj. The applicant hit M.P. in the head several times and proceeded to punch her about the body in the presence of their minor children. He was found guilty of a minor offence against public order (affray) under section 3(1)(2) of the Public Order Act 2000, for which he was fined 150 convertible marks (BAM) [1] . The relevant part of the decision reads: “Defendant Muslija Adnan ... is guilty in that at about 6.40 p.m. on 12 February 2003, in Rudi Čajevac street in Kakanj, entering uninvited the hallway of the flat [of his former wife] ... he grabbed M. by the throat ... and then, in the presence of their minor children ... slapped M.’s face several times and continued to punch her about the body while threatening to take the children away from her.” 8.     On 19 October 2004 the Zenica Cantonal Minor Offences Court upheld that decision and it became final. 9.     On 3 August 2006 the applicant paid the fine. B.     Conviction of a criminal offence 10.     On 18 September 2003 the Cantonal Prosecutor lodged an indictment against the applicant with the Kakanj Municipal Court (“the Municipal Court”) for causing grievous bodily harm to M.P. 11 .     On 9 January 2008 the Municipal Court found the applicant guilty of the criminal offence of grievous bodily harm under Article 177 §§ 1 and 2 of the Criminal Code 1998, and sentenced him to three months’ imprisonment. In passing the sentence, the court took into account various mitigating circumstances, such as the lapse of time and the fact that the applicant had not reoffended, that he was the father of three minor children, had no previous convictions, and was unemployed. The court regarded the fact that the incident took place in the presence of the applicant’s and M.P.’s minor children as an aggravating circumstance. The relevant part of the decision reads: “Defendant Muslija Adnan...is guilty because at about 7 p.m. on 12 February 2003 in Rudi Čajevac street, Kakanj, he entered the flat of his former wife, M.P. ... and grabbed her by the throat, hit her with his fist several times in the head, stomach and face, thereby causing her grievous bodily harm: a fractured lower jaw ... and a number of lighter injuries ...” 12.     On 7 April 2008 the Zenica Cantonal Court upheld that judgment. 13.     At the applicant’s request, the prison sentence was subsequently converted to a fine in the amount of BAM 9,000. On 22 March 2011 the applicant paid the fine. C.     Proceedings before the Constitutional Court 14.     On 4 June 2008 the applicant lodged a constitutional appeal complaining that the ne bis in idem principle had been breached. 15.     On 11 January 2011 the Constitutional Court of Bosnia and Herzegovina rejected his appeal. It held that the applicant had been found guilty of a minor offence against public order (affray) in the minor-offences proceedings, whereas he had been convicted of the criminal offence of grievous bodily harm in the criminal proceedings. Although both decisions were based on the same incident, the offences were different in nature and purpose. II.   RELEVANT DOMESTIC LAW AND PRACTICE 16 .     Section 3(1)(2) of the Public Order Act 2000 ( Zakon o javnom redu i miru Zeničko-dobojskog kantona , Official Gazette of the Zenica-Doboj Canton nos. 8/00, 15/03, 11/07 and 8/08) provides that anyone who disturbs the peace in a public place by participating in a fight, or by verbally or physically attacking another person, is committing a minor offence against public order (affray). Under section 6(1) affray attracted a fine of BAM 200 - 500 or imprisonment for a period not exceeding sixty days. As of 15 July 2007, affray attracts a fine only of BAM 200 - 500. 17.     Article 48 § 2 of the Criminal Code 1998 ( Krivični zakon Federacije Bosne i Hercegovine , Official Gazette of the Federation of Bosnia and Herzegovina, nos. 43/98, 2/99, 15/99, 29/00 and 59/02), which was in force until 1 August 2003, provided, inter alia , that a fine imposed for a minor offence would be deducted from a sentence imposed in the criminal proceedings (BAM 50 equals 1 day in prison) if the criminal offence contained the same elements as the minor offence. Article 177 § 1 of the Code provided that anyone who inflicted grievous bodily harm on another or impaired another’s health would be sentenced to imprisonment for a term of no less than six months and not exceeding five years. If that act was committed against a parent of a common child, it was punishable by a term of imprisonment of no less than one year and not exceeding five years (Article 177 § 2). The competent court could impose a sanction below the prescribed minimum in the event that there were mitigating circumstances (Article 41 § 2). 18 .   On 30 March 2012, the Constitutional Court, sitting in a plenary session, found a violation of the ne bis in idem principle in a case almost identical to the present one (see decisions no. AP 133/09 ). In its reasoning the court directly relied on this Court’s case-law established in Sergey Zolotukhin v. Russia ([GC], no. 14939/03, ECHR 2009) and Maresti v.   Croatia (no. 55759/07, 25 June 2009). THE LAW I.     ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7 TO THE CONVENTION 19.     The applicant complained that he had been tried and punished twice for the same offence in respect of an incident that had occurred at about 6.40 p.m. on 12 February 2003 in the flat of his former wife. He 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.” 20.     The Government contested that argument. A.     Admissibility 21.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     The parties’ submissions 22.     The applicant argued that in both the minor-offences proceedings and the criminal proceedings he had been found guilty in respect of the same incident and the same facts and that, irrespective of the different classification of the two offences under domestic law, this had violated his right not to be tried and punished twice for the same offence. 23.     The Government argued that the applicant’s conduct during the incident of 12 February 2003 had constituted two different offences with essentially different elements and that the applicant had therefore been convicted in two different sets of proceedings by two different courts. In the minor-offences proceedings, he had been found guilty of disturbing public order and peace because he had verbally and physically attacked his former wife in the presence of their minor children and neighbours. The purpose of the sanction in those proceedings had been to protect the well-being of citizens and to safeguard public order and the peace in a broader sense. Moreover, the penalty imposed in the minor-offences proceedings was not severe enough for an offence that was serious enough to be qualified as criminal in nature: the Minor Offences Court imposed a minimal fine of BAM 150 on the applicant. The criminal proceedings, on the other hand, concerned the consequence of the applicant’s actions: grievous bodily harm inflicted on M.P., of which the Minor Offences Court had not been aware. The assault itself could not be seen as a minor offence, so it was dealt with in criminal proceedings. Inflicting grievous bodily harm could not be seen as identical to the offence of disturbing public order and the peace, for which the applicant was punished in the proceedings before the Minor Offences Court. 2.     The Court’s assessment (a)     Whether the first penalty was criminal in nature 24.     The Court observes that on 16 August 2004 the applicant was found guilty in proceedings conducted under the Public Order Act 2000 and fined BAM 150. Under the legal classification in Bosnia and Herzegovina it is not entirely clear whether “minor offences” are to be regarded as “criminal”. Thus, in order to determine whether the applicant was “finally acquitted or convicted in accordance with the law and penal procedure of [the] State”, the first issue to be decided is whether those proceedings concerned a “criminal” matter within the meaning of Article 4 of Protocol No. 7. 25.     The Court reiterates that the legal characterisation of the procedure under national law cannot be the sole criterion of relevance for the applicability of the principle of ne bis in idem under Article 4 § 1 of Protocol No. 7. Otherwise, the application of this provision would be left to the discretion of the Contracting States to a degree that might lead to results that are incompatible with the object and purpose of the Convention (see, for example, Storbråten v.   Norway (dec.), no.   12277/04, ECHR 2007 ‑ ... (extracts), with further references). The notion of “penal procedure” in the text of Article 4 of Protocol No. 7 must be interpreted in the light of the general principles concerning the corresponding words “criminal charge” and “penalty” in Articles 6 and 7 of the Convention respectively (see Rosenquist v.   Sweden (dec.), no. 60619/00, 14 September 2004; Nilsson v.   Sweden (dec.), no.   73661/01, ECHR 2005 ‑ ...; and Haarvig v. Norway (dec.), no. 11187/05, 11 December 2007). 26.     The Court’s established case-law sets out three criteria, commonly known as the “ Engel criteria” (see Engel and Others v. the Netherlands , 8   June 1976, Series A no. 22), to be considered in determining whether or not there was a “criminal charge”. The first criterion is the legal classification of the offence under national law, the second is the very nature of the offence, and the third is the degree of severity of the penalty that the person concerned risks incurring. The second and third criteria are alternative and not necessarily cumulative. This, however, does not exclude a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge (see Ezeh and Connors v. the United Kingdom [GC], nos.   39665/98 and 40086/98, §§ 82-86, ECHR 2003 ‑ X , and Jussila v. Finland [GC], no.   73053/01, §§   30-31, ECHR 2006 ‑ ...). 27.     The domestic legal classification of the offence at issue was a “minor offence” under section 3(1)(2) of the Public Order Act 2000 (see paragraph 16 above). Nevertheless, the Court has previously found that certain offences have a criminal connotation even though they are regarded under relevant domestic law as too trivial to be governed by criminal law and procedure (see Ziliberberg v.   Moldova , no.   61821/00, §§   32-35, 1   February 2005; Menesheva v.   Russia , no.   59261/00, §   96, ECHR 2006 ‑ ...; and Maresti, cited above, § 58). 28.     The purpose of including the offence at issue in the Public Order Act 2000 was to guarantee the protection of human dignity and public order – values and interests that normally fall within the sphere of protection of criminal law. The relevant provision of the Act was directed towards all citizens, rather than towards a group with a special status. Any reference to the “minor” nature of the acts does not, in itself, exclude its classification as “criminal” in the autonomous sense of the Convention, as there is nothing in the Convention to suggest that the criminal nature of an offence, within the meaning of the Engel criteria, necessarily requires a certain degree of seriousness (see Ezeh , cited above, §   104). Lastly, the Court considers that the primary aims in establishing the offence in question were punishment and deterrence, which are recognised as characteristic features of criminal penalties (ibid., §§ 102 and 105). 29.     As to the degree of severity of the measure, it is determined by reference to the maximum potential penalty for which the relevant law provides. The actual penalty imposed is relevant to the determination, but it cannot diminish the importance of what was initially at stake (ibid., § 120). The Court observes that at the relevant time, section 6(1) of the Public Order Act 2000 provided for sixty days’ imprisonment as the maximum penalty, even if the applicant was eventually sentenced to a fine in the amount of BAM 150. 30.     It is a common feature of all criminal-law systems that some criminal offences are liable to fines while others entail deprivation of liberty. In the present case, the prison sentence imposed on the applicant in the criminal proceedings was eventually converted to a fine in the amount of BAM 9,000. The two criteria, the nature of the offence and the nature and degree of severity of the penalty, are alternative and not necessarily cumulative. It is sufficient that the offence in question is by its nature criminal from the point of view of the Convention (see Lauko v. Slovakia , 2   September 1998, § 56, Reports of Judgments and Decisions 1998 ‑ VI; Kadubec v. Slovakia , 2 September 1998, § 52, Reports of Judgments and Decisions 1998 ‑ VI; and Tsonyo Tsonev v. Bulgaria (no. 2) , no. 2376/03, §   49, 14 January 2010). 31.     In the light of the above considerations, the Court concludes that the nature of the offence in question was such as to bring the applicant’s conviction of 16 August 2004 within the ambit of “penal procedure” for the purposes of Article 4 of Protocol No. 7. (b)     Whether the offences for which the applicant was prosecuted were the same ( idem ) 32.     In the case of Sergey Zolotukhin v. Russia (cited above, §§   70-78), the Court observed that the body of case-law that it had accumulated throughout the history of application of Article 4 of Protocol No. 7 demonstrated the existence of several approaches to the question of whether the offences for which an applicant was prosecuted were the same. Seeking to put an end to this legal uncertainty, the Court decided to provide a harmonised interpretation of the notion of the “same offences” – the idem element of the ne bis in idem principle. 33.     In the Sergey Zolotukhin case (§ 82) the Court took 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. 34.     Turning to the present case, the Court notes that in both the minor-offences proceedings and the criminal proceedings the applicant was found guilty of the same conduct towards the same victim and within the same time frame (see paragraphs 7 and 11 above). In 2011 the Constitutional Court rejected his appeal applying the pre- Zolotukhin case-law. Its approach had since evolved (see paragraph 18 above). The Court further notes that the definition of the minor offence under section 3(1)(2) of the Public Order Act 2000 does not, as such, include inflicting bodily harm, whereas that element is crucial for the criminal offence of inflicting grievous bodily harm under Article 177 of the 1998 Criminal Code. However, in its decision, the Minor Offences Court expressly stated that the applicant was guilty of, inter alia , slapping M.P. and of punching her about her entire body. The physical attack on M.P. thus constituted an element of the minor offence of which the applicant was found guilty (in this connection, see Maresti , cited above, § 63). In the criminal proceedings before the Municipal Court the applicant was again found guilty of, inter alia , hitting M.P. The events described in the decisions adopted in both sets of proceedings took place at about 6.40   p.m. on 12 February 2003 in M.P.’s flat in Kakanj. It is obvious that both decisions concerned exactly the same event and the same acts, regardless of the fact that the decision of the Municipal Court stated that the event took place at about 7 p.m. 35.     The facts of the two offences must therefore be regarded as substantially the same for the purposes of Article 4 of Protocol No. 7. (c)     Whether there was a duplication of proceedings ( bis ) 36.     The aim of Article 4 of Protocol No. 7 is to prohibit the repetition of proceedings which have been concluded by a “final” decision. A decision is final for the purposes of this provision if it has acquired the force of res judicata . This is the case when it is irrevocable, that is to say when no further ordinary remedies are available, or when the parties have exhausted such remedies or have permitted the time ‑ limit to expire without availing themselves of them (see Sergey Zolotukhin , cited above, §§ 107 and 108, with further references). 37.     In the present case, the Minor Offences Court delivered its decision on 16 August 2004 and it became final on 19 October 2004. The criminal proceedings were instituted on 18 September 2003 while the minor-offences proceedings were still pending. Thus the two proceedings were conducted concurrently. At the time the minor-offences conviction became final and required the force of res iudicata , the criminal proceedings were pending before the first-instance court. In these circumstances, the Court considers that the Municipal Court should have terminated the criminal proceedings following the delivery of a “final” decision in the first proceedings (see, Zigarella v. Italy (dec.), no. 48154/99, ECHR 2002 ‑ IX (extracts) and Sergey Zolotukhin , cited above, § 115). Furthemore, when deciding the applicant’s appeal the Constitutional Court failed to bring its case-law in line with this Court’s approach taken in the Zolotukhin case. (d)     Conclusion 38.     The applicant was “convicted” in minor-offences proceedings which are to be assimilated to “criminal proceedings” within the autonomous Convention meaning of this term. After this “conviction” became final, he was found guilty of a criminal offence which related to the same conduct as that punished in the minor-offences proceedings and encompassed substantially the same facts. The Constitutional Court failed to apply the principles established in the Zolotukhin case and thus to correct the applicant’s situation. 39.     In the light of the foregoing, the Court considers that the proceedings instituted against the applicant under Article 177 § 1 of the 1998 Criminal Code concerned essentially the same offence as that of which he had already been convicted by a final decision under section 3(1)(2) of the Public Order Act 2000. 40.     There has therefore been a violation of Article 4 of Protocol No. 7. II.     OTHER ALLEGED VIOLATIONS OF THE CONVENTION 41.     The Court has examined the other complaints submitted by the applicant under Articles 6 and 14 of the Convention. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. III.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 42.     Article 41 of the Convention provides: “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.” A.     Damage 43.     The applicant claimed 1,200 euros (EUR) in respect of non-pecuniary damage. 44.     The Government considered the amount claimed unjustified. 45.     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. B.     Costs and expenses 46.     The applicant also claimed EUR 1,163 for the costs and expenses incurred before this Court. 47.     The Government considered the amounts claimed unjustified. 48.     According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant the requested sum of EUR 1,163 for costs and expenses in the proceedings before the Court, plus any tax that may be chargeable to him on this amount. C.     Default interest 49.     The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.     Declares the complaint concerning the violation of the ne bis in idem principle admissible and the remainder of the application inadmissible;   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 from the date on which the judgment becomes final in accordance with Article   44   §   2 of the Convention, EUR 1,163 (one thousand one hundred and sixty-three euros), to be converted into convertible marks at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of costs and expenses; (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 14 January 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Françoise Elens-Passos   Ineta Ziemele   Registrar   President In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the declaration made by Judge Ziemele is annexed to this   judgment.                   I.Z.                   F.E.P.   DECLARATION BY JUDGE ZIEMELE In relation to the wording in paragraph 45 of this judgment I would like to refer to my concurring opinion attached to the judgment in Vinter and Others v. the United Kingdom ([GC], nos. 66069/09, 130/10 and 3896/10, ECHR 2013) as the reasoning therein fully reflects my criticism of the standard formula used by the Court in circumstances when it considers unnecessary to award moral damages.     [1] The convertible mark uses the same fixed exchange rate to the euro that the German mark has: EUR 1 = BAM 1.95583.