CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 22 octobre 2024

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He was represented before the Court by Mr   B.   Bončić, a lawyer practising in Niš. 2.     The Serbian Government (“the Government”) were represented by their Agent, Ms Z. Jadrijević Mladar. 3.     The facts of the case may be summarised as follows. Criminal proceedings 4 .     By a judgment of 4 April 2016, the Pirot High Court ( Viši sud u Pirotu   – “the High Court”) convicted the applicant of abuse of position, a criminal offence under Article 234 of the Serbian Criminal Code (see paragraph 20 below) and, together with N.M., of forgery of an official document, a criminal offence under Article 357 of the same Code. Specifically, the High Court found that during 2011 the applicant had obtained “material gain” which was “unlawful” within the meaning of Article   234, because the company which he owned and managed had extracted and traded in riverbed gravel without the necessary permits and without paying the taxes required for such an activity. The applicant was sentenced to three years and two months’ imprisonment for the two offences combined. 5 .     On 7 November 2016 the Niš Court of Appeal ( Apelacioni sud u Nišu   – “the Court of Appeal”) upheld the first-instance judgment. 6 .     On 27 April 2017 the applicant lodged an appeal on points of law ( zahtev za zaštitu zakonitosti ) with the Supreme Court of Cassation ( Vrhovni kasacioni sud ), arguing, inter alia , that the offence of abuse of position had not been included in the Criminal Code at the time the alleged acts had been carried out and that he had therefore been convicted of a non-existent offence, in violation of Article 1 of the Criminal Code, which prohibits the retroactive application of criminal legislation (see paragraph 18 below), and, furthermore, that the same Court of Appeal, in a case very similar to his own, had acquitted the defendants by adopting a different interpretation of the law. 7 .     On 27 June 2017 the Supreme Court of Cassation dismissed the applicant’s appeal on points of law as unfounded. In its reasoning, the court opined that, at the time when the relevant acts had been carried out, the Criminal Code had already contained the offence of abuse of office (see paragraph 19 above), which had consisted of the same elements as the subsequently introduced offence of abuse of position. There was therefore legal continuity between the two offences. Proceedings before the Constitutional Court 8.     On 29 April 2017 the applicant lodged an appeal with the Constitutional Court ( Ustavni sud ) against the judgments of the High Court and the Court of Appeal of 4 April 2016 and 7 November 2016, respectively (see paragraphs   4 and 5 above), complaining, inter alia , that there had been a divergent interpretation of the applicable criminal legislation and referring to another judgment of the same Court of Appeal where the defendants had been acquitted in “very similar factual circumstances”. 9.     On 3 November 2017 the applicant lodged an additional appeal with the Constitutional Court against the Supreme Court of Cassation’s judgment of 27   June   2017, which had been delivered in the meantime (see paragraph   7 above). In that appeal, the applicant relied on the relevant Articles of the Constitution and on Article 7 of the Convention, claiming that he had suffered violations of: (i) the right to a fair trial, and (ii) the right to “the non-retroactivity of criminal law”. The applicant argued that both the High Court and the Court of Appeal had applied the provisions of the newly introduced offence of abuse of position automatically and without giving reasons. The applicant conceded that it was “generally accepted in the national case-law” that there was indeed legal continuity between the two offences but maintained that it was nevertheless the duty of both the High Court and the Court of Appeal to give reasons for such an interpretation. The Supreme Court of Cassation, rather than quashing those judgments, had simply endorsed them. Lastly, the applicant reiterated his complaint to the effect that the same Court of Appeal, in almost identical circumstances, had acquitted defendants on the basis of a different interpretation of the law in question. 10 .     On 24 December 2018 the Constitutional Court considered both of the applicant’s appeals simultaneously and ruled against him. It endorsed the reasoning of the Supreme Court of Cassation on the issue of the applicable law. 11 .     On 8 October 2018 the High Court granted a request by the applicant for the reopening of the criminal proceedings against him. 12 .     On 4 June 2021 the High Court varied its judgment of 4 April 2016 in part (see paragraph 4 above), reducing the total prison sentence imposed on the applicant to one year under house arrest and ordering his company to pay a fine, while upholding the remainder of the original judgment. 13 .     On 23 September 2021 the Court of Appeal varied the part of the judgment of the High Court relating to the fine imposed on the applicant’s company and also varied the sentence imposed on the applicant personally. The court sentenced the applicant to ten months’ imprisonment for the offence of abuse of position and three months’ imprisonment for the offence of forgery but kept the overall sentence of one year’s imprisonment under house arrest. 14 .     On 17 February 2022 the High Court gave a decision stating that the execution of the applicant’s prison sentence had become statute-barred and was therefore no longer possible. 15 .     On 11 March 2022 the Court of Appeal upheld that decision. Relevant legal framework and practice Constitution of the Republic of Serbia ( Ustav Republike Srbije , published in the Official Gazette of the Republic of Serbia, OG RS no.   98⁄06) 16 .     Article 34 of the Constitution provides, inter alia , that “no person may be held guilty for any act which did not constitute a criminal offence under the law or any other regulation based on the law at the time when it was committed, nor shall a penalty be imposed which was not prescribed for such an act”. 17.     In 2021 the Constitution was amended but not in respect of the above ‑ mentioned provisions. Criminal Code 2005 ( Krivični zakonik, published in OG RS nos.   85/2005, 88/2005, 107/2005, 72/2009, 111/2009) 18 .     Article 1 of the Criminal Code provides that “no penalty or other criminal sanction may be imposed for an offence which did not constitute a criminal offence at the time when it was committed, nor may a penalty or other criminal sanction be imposed which was not applicable at the time when the criminal offence was committed”. 19 .     Article 359, under the heading “abuse of office” ( zloupotreba službenog položaja ), originally provided, inter alia , that “an official or responsible person who by abuse of office or authority, by exceeding the limits of his official authority or by dereliction of duty obtains any benefit for himself or another, or causes damage to a third party or seriously violates the rights of another, shall be punished by imprisonment from six months to five years.” Amendments to the Criminal Code 2005 ( Zakon o izmenama i dopunama Krivičnog zakonika , published in OG RS no. 121/12) 20 .     Following the Amendments to the Criminal Code, Article 234, as newly defined, provides under the heading “abuse of position” ( zloupotreba položaja odgovornog lica ) that “a responsible person who by abusing his position or powers, exceeding his powers or failing to discharge his duty obtains unlawful material gain for himself or for another natural person or legal entity or causes material damage to another, shall be punished by imprisonment from three months to three years”. 21 .     Article 359, as amended, under the heading “abuse of office” provides that “an official who by abuse of office or authority, by exceeding the limits of his official authority or by dereliction of duty obtains any benefit for himself or for another natural person or legal entity, or causes damage to a third party or seriously violates the rights of another, shall be punished by imprisonment from six months to five years”. 22 .     The Amendments to the Criminal Code were passed on 24   December   2012 and entered into force on 15 April 2013. Domestic case-law referred to by the Government 23 .     The Government provided the Court with case-law examples from the Supreme Court of Cassation (judgments Kzz 384/2014 of 8 May 2014 and Kzz 1468 of 23   December 2020) in which that court had held, in cases similar to the one before the Court, that the offence of abuse of office contained the same elements as the subsequently introduced offence of abuse of position. In particular, in those examples, the Supreme Court of Cassation explained that the offence of abuse of office, as it had been formulated until 15 April 2013, could be committed by either an official or a responsible person (see paragraph 19 above). The amendments of 15 April 2013 had thus merely split that offence into two separate offences of abuse of office and abuse of position respectively, the first of which could be committed by an official and the second by a responsible person. Consequently, the Supreme Court of Cassation found that there was legal continuity between the criminal offence of abuse of office from the Criminal Code which was in force until 15 April 2013 (see paragraph 19 above) and the criminal offence of abuse of position which was introduced into the Criminal Code by the amendments of 15 April 2013 (see paragraph 20 above). Lastly, the Supreme Court of Cassation considered that it was not necessary to prove “the unlawfulness” of the gain obtained by the perpetrator for the offence of abuse of position to be made out, since “unlawfulness” as such was always and by the nature of things a constituent element of all criminal offences. 24 .     The Government also provided the Court with the opinion of the Supreme Court of Cassation published in its Bulletin no. 1/2015 ( Bilten Vrhovnog kasacionog suda br. 1/2015), in which it expressed the opinion that the domestic courts had the right to reclassify the criminal offence of abuse of office as abuse of position without violating the criminal law to the detriment of the accused and without exceeding the indictment ( prekoračenje optužbe ). The relevant Bulletin is published on the website of the Supreme Court of Cassation [1] . Domestic case-law referred to by the applicant 25 .     The applicant provided the Court with a judgment ( Kž1 341/2019 ) of 21 May 2019 of the same Court of Appeal that had ruled in his case, in which that court had acquitted four defendants who had committed the same offence as him, that is, abuse of position. The facts of that case were very similar to those of the applicant’s case. In particular, the defendants were the owners of a company which had also extracted and sold riverbed gravel without the necessary permits and without paying the required taxes. However, the Court of Appeal held that the “material gain” within the meaning of Article 234 of the Criminal Code had not been “unlawful” (see paragraphs 4 and 23 above), since the extraction and sale of riverbed gravel was not in itself an unlawful activity. COMPLAINTS 26.     The applicant complained under Article 6 § 1 of the Convention that the relevant judgments of the criminal courts in his case had lacked proper reasoning and were flagrantly inconsistent with the same courts’ acquittal of other defendants in “practically identical circumstances”, all of which had created a situation of profound legal uncertainty. The applicant also complained under Article 7 of the Convention that he had been convicted for acts which had not constituted a criminal offence under domestic law at the time of their commission. THE LAW The Government’s objection of abuse of the right of individual application The parties’ submissions 27 .     The Government submitted that the applicant had failed to inform the Court that following his request for the reopening of the criminal proceedings, his sentence had been reduced and that, in the end, it had not been executed because it had become time-barred (see paragraphs 11-15 above). According to the Government, the applicant had thus attempted to conceal the true facts as to what had happened in the criminal proceedings against him, and had abused his right of individual application, within the meaning of Article   35   §   3   (a) of the Convention. 28.     The applicant disagreed. He maintained that he had informed the Court of those developments in his case by letter, enclosing the relevant judgments, which he had sent the Court by post on 2   December   2021. The Court’s assessment (a)    Relevant principles 29 .     The Court reiterates that an application may be rejected as an abuse of the right of application under Article 35 § 3 (a) of the Convention if, inter alia , it was knowingly based on untrue facts and false declarations (see, for example, Miroļubovs and Others v. Latvia , no. 798/05, § 63, 15 September 2009; Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, §   97, ECHR 2012; Gross v.   Switzerland [GC], no. 67810/10, § 28, ECHR 2014; and Zličić v. Serbia , nos. 73313/17 and 20143/19, § 55, 26 January 2021). 30 .     The submission of incomplete and thus misleading information may also amount to an abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation has been provided for the failure to disclose that information (see Hüttner v.   Germany (dec.), no. 23130/04, 19 June 2006; Kowal v. Poland (dec.), no.   2912/11, § 32, 18 September 2012; Gross , cited above, § 28; and Zličić , cited above, § 55). The same applies if important new developments have occurred during the proceedings before the Court and if, despite being expressly required to do so by Rule 47 § 7 of the Rules of Court, the applicant has failed to disclose that information to the Court, thereby preventing it from ruling on the case in full knowledge of the facts. However, even in such cases, the applicant’s intention to mislead the Court must always be established with sufficient certainty (see Gross , cited above, § 28, with further references). (b)    Application of those principles to the present case 31.     The Court notes that on 2 December 2021 the applicant sent a letter to the Court informing it of his request for the reopening of the domestic criminal proceedings and of the subsequent judgments of 4   June   2021 and 23   September   2021 granting his request and reducing his sentence (see paragraphs 12-13 above). The applicant enclosed the judgments in question with his letter. The applicant’s letter, which the Court received on 9   December 2021, was then sent to the Government, together with the relevant judgments, on 4   May   2023, at the time when the Government were given notice of the application. 32.     In the light of the foregoing, it is clear that, contrary to the Government’s submissions (see paragraph 27 above), the applicant did in fact inform the Court of the two judgments and the related proceedings. 33.     Conversely, in relation to the decisions of 17   February   2022 and 11   March   2022 (see paragraphs 14-15 above), the Court notes that the applicant did not inform the Court of their adoption. However, that information of itself clearly cannot be deemed to be essential in deciding the outcome of the application. The Court therefore concludes that while the applicant should also have informed it of those decisions, there is no evidence that he had ever intended to “mislead the Court” in respect of any of the issues at the very core of the present case or that his application had knowingly been based on untrue facts or false declarations (see the case-law cited in paragraphs 29 and 30 above). 34.     It follows that the Government’s preliminary objection must be dismissed. Complaint under Article 7 of the Convention 35.     The applicant complained under Article 6 § 1 of the Convention that the relevant judgments of the criminal courts in his case had lacked proper reasoning. He furthermore complained, under Article 7 of the Convention, that he had been convicted for acts which had not constituted a criminal offence under domestic law at the time of their commission. 36.     The Court, being the master of the characterisation to be given in law to the facts of any case before it, considers, having regard to its case-law, that the applicant’s complaints fall to be examined under Article   7 of the Convention only (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018; see also, mutatis mutandis , Žaja v.   Croatia , no. 37462/09, §§ 62-64, 4   October 2016). 37.     Article 7 of the Convention reads as follows: “1.     No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. 2.     This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.” The parties’ submissions (a)    The Government 38 .     The Government argued that the applicant had failed to make proper use of effective domestic remedies. In particular, he had not raised all of his complaints before the court of second instance. 39.     The Government also submitted that there was legal continuity between the offence of abuse of office under Article 359 of the Criminal Code (see paragraph 19 above) and the offence of abuse of position under Article   234 of that same Code (see paragraph 20 above). That conclusion could be drawn, firstly, from the wording of the two offences: it was clear that Article 359 concerned abuse of office by “an official or a responsible person”, whereas the amendments that had entered into force had separated that offence into two, the first concerning abuse committed by “an official” and the second by “a responsible person”. Consequently, the element of the offence referring to abuse committed by a “responsible person” had been transferred from one Article of the Criminal Code to another, while maintaining the continuity of the elements of the offence. 40.     The Government argued that amendments to legislation in response to changes in society should be accepted as a common occurrence in modern legal systems and that such changes were not, in themselves, automatically indicative of a lack of legal certainty. 41.     The Government furthermore submitted that, at the time when the applicant had raised his complaint before the Supreme Court of Cassation that he had been convicted for acts which had not constituted an offence under domestic law (see paragraph 6 above), that court itself had given detailed reasoning as to why there was legal continuity between the two offences. That reasoning had also been subsequently confirmed by the Constitutional Court (see paragraph 10 above). 42.     Lastly, the Government submitted that it had been the clear position of the domestic courts that the continuity in question existed, and they referred to the case-law (see paragraph 23 above) and the opinion of the Supreme Court of Cassation in that connection (see paragraph 24 above). (b)    The applicant 43.     The applicant disagreed and reaffirmed his complaints. In particular, he maintained that he had complied with the exhaustion requirement, having made use of all the available and effective domestic remedies. The Court’s assessment 44.     The Court considers that there is no need for it to examine the Government’s objection with respect to the applicant’s alleged failure to properly make use of an effective domestic remedy (see paragraph 38 above), since his complaint under Article 7   §   1 of the Convention is, in any event, manifestly ill-founded and as such inadmissible for the reasons set out below. (a)    Relevant principles 45.     The guarantee enshrined in Article 7 of the Convention, which is an essential element of the rule of law, occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible under Article 15 of the Convention in time of war or other public emergency. It should be construed and applied, as follows from its object and purpose, in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment (see Yüksel Yalçınkaya v. Türkiye [GC], no. 15669/20, § 237, 26 September 2023, with further references) 46.     Article 7 is not confined to prohibiting the retroactive application of criminal law to the disadvantage of an accused. It also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty ( nullum crimen, nulla poena sine lege ) and the principle that criminal law must not be extensively construed to the detriment of an accused, for instance by analogy. From these principles it follows that an offence must be clearly defined in law. This requirement is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him criminally liable. When speaking of “law”, Article 7 alludes to the very same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises written as well as unwritten law and implies qualitative requirements, notably those of accessibility and foreseeability (see, among many authorities Streletz, Kessler and Krenz v.   Germany [GC], nos. 34044/96 and 2 others, § 50, ECHR 2001-II, and Del Río Prada v. Spain [GC], no. 42750/09, § 91, ECHR 2013). 47 .     The Court reiterates that, in principle, it is not its task to substitute itself for the domestic jurisdictions. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. The Court’s role is confined to ascertaining whether the effects of such interpretation are compatible with the Convention (see, among other authorities, Korbely v. Hungary [GC], no. 9174/02, §§ 72-73, ECHR 2008, and Yüksel Yalçınkaya , cited above, § 240). 48 .     The Court must therefore verify that at the time when an accused person performed the act which led to his or her being prosecuted and convicted there was in force a legal provision which made that act punishable, and that the punishment imposed did not exceed the limits fixed by that provision (see Coëme and Others v. Belgium , nos. 32492/96 and 4 others, §   145, ECHR 2000-VII; Achour v. France [GC], no.   67335/01, §   43, ECHR   2006‑IV; and Del Río Prada , cited above, § 80). (b)    Application of these principles to the present case 49.     The Court notes that the applicant claimed that he had been sentenced for acts committed before 2013 on the basis of the amendments to the Criminal Code which entered into force on 15   April   2013, and, moreover, that the judgments in question did not contain adequate reasons for the application of that newly enacted legislation (see paragraphs 4-7 above). The Court must therefore first determine whether the acts in question were already foreseeably punishable under the Criminal Code as in force at the material time, as well as whether the sentence imposed exceeded the limits laid down by those provisions (see the case-law quoted in paragraph 48 above). 50.     In that connection, the Court notes that both the offence of abuse of office, as initially defined, and the offence of abuse of position, which was introduced subsequently and of which the applicant was convicted, were codified in similar terms (see paragraphs 19-20 above). Notably, both provisions expressly referred to obtaining an advantage, causing damage to a third party or seriously infringing the rights of others by misusing or exceeding one’s position or powers or by failing to fulfil one’s duty. The Court also notes that the domestic courts, including the Supreme Court of Cassation, have consistently held that there is continuity between the two offences ( see Advisory opinion concerning the use of the “blanket reference” or “legislation by reference” technique in the definition of an offence and the standards of comparison between the criminal law in force at the time of the commission of the offence and the amended criminal law [GC], request no.   P16-2019-001, Armenian Constitutional Court, §§ 83 and 87, 29 May 2020). In particular, the Supreme Court of Cassation has repeatedly explained that both offences contained the same elements and that the domestic courts were entitled to reclassify a criminal offence of abuse of office as one of abuse of position (see paragraphs 23 and 24 above). 51.     The Court therefore considers that the consequences of a failure to comply with the relevant criminal law were adequately foreseeable, not only with the assistance of legal advice, but also as a matter of common sense (see, mutatis mutandis , Moiseyev v. Russia , no. 62936/00, § 241, 9 October 2008, and contrast Pessino v. France , no. 40403/02, § 36, 10 October 2006). In other words, the domestic courts’ interpretation in the present case was consistent with the essence of the offence in question. Consequently, the legal basis of the offence of which the applicant was convicted was also sufficiently clear and foreseeable at the time of its commission, notwithstanding the fact that the amendments to the Criminal Code were themselves only adopted thereafter. 52.     As regards the sentence imposed, the Court observes that the applicant was ultimately sentenced to ten months’ imprisonment for the offence of abuse of position (see paragraph 13 above), in accordance with Article 234 of the amended Criminal Code (see paragraph 20 above). The sentence imposed, however, did not go beyond what was specified in Article 359 of the legislation in force before the amendments were introduced (see paragraphs 19 and 22 above). 53.     Having regard to the foregoing, the Court considers that at the time when the offence was committed, the applicant’s actions constituted crimes that were defined with sufficient accessibility and foreseeability under Serbian law, and that he could reasonably have foreseen the risk of being prosecuted and convicted for the conduct in question (see, inter alia and mutatis mutandis , Jorgic v.   Germany , no. 74613/01, § 113, ECHR 2007-III). 54.     Finally, although neither the High Court nor the Court of Appeal had explained the reasons for the application of the newly enacted legislation, adequate reasoning was subsequently furnished by the Supreme Court of Cassation (see paragraph 7 above). Indeed, the latter has consistently held that both offences contained the same elements, that there was legal continuity between the two offences and that domestic courts were entitled to reclassify a criminal offence of abuse of office as one of abuse of position (see paragraphs 23 and 24 above). That approach was subsequently endorsed by the Constitutional Court in the applicant’s case (see paragraph 10 above). 55.     It follows that the applicant’s complaint under Article 7 of the Convention, is manifestly ill-founded and must be rejected pursuant to Article   35 §§ 3 and 4 of the Convention. Complaint under Article 6 of the Convention 56.     The applicant complained that the practice of the domestic courts was inconsistent, contrary to the guarantees contained in Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” The parties’ submissions 57.     The Government submitted that the domestic judgments in the applicant’s case had been based on a correct and lawful interpretation of the domestic law, which had been decided by the ordinary courts at two levels of jurisdiction and had then been confirmed in turn by the Supreme Court of Cassation and the Constitutional Court. 58.     The applicant reaffirmed his complaint. The Court’s assessment 59.     The relevant principles in respect of inconsistent practice of domestic courts are set out in, for example, Nejdet Şahin and Perihan Şahin v. Turkey ([GC], no. 13279/05, §§ 49-58, 20 October 2011) and Lupeni Greek Catholic Parish and Others v.   Romania ([GC], no.   76943/11, §   116, 29 November 2016). In particular, the Court has found, inter alia , that only profound and long-standing differences in the practice of the highest domestic court may be contrary to the principle of legal certainty (see Nejdet Şahin and Perihan Şahin , cited above, § 53, and Beljić and Others v. Serbia (dec.), nos. 3000/16 and 7189/16, §§ 107-09, 23 January 2024.). 60.     Turning to the present case, the Court notes that the applicant has referred to only one divergent final judgment, which has not been the subject of review by the Supreme Court of Cassation or the Constitutional Court (see paragraph 25 above). It follows that he has failed to show that there were, in the practice of the highest domestic court, profound and long-standing differences which could be deemed contrary to the principle of legal certainty. 61.     Accordingly, the applicant’s complaint under Article 6   §   1 of the Convention is manifestly ill-founded and must be rejected in accordance with Article   35   §§   3 (a) and 4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 14 November 2024.     Andrea Tamietti   Gabriele Kucsko-Stadlmayer   Registrar   President     [1] http://www.vk.sud.rs/sites/default/files/attachments/Bilten1.pdf , last accessed on 13 June 2024.