FIRST SECTION

DECISION

Application no. 38771/15 Darko MATIJAŠIĆ against Croatia

The European Court of Human Rights (First Section), sitting on 8 June 2021 as a Chamber composed of:

Péter Paczolay, President, Ksenija Turković, Krzysztof Wojtyczek, Alena Poláčková, Gilberto Felici, Lorraine Schembri Orland, Ioannis Ktistakis, judges, and Liv Tigerstedt, Deputy Section Registrar,

Having regard to the above application lodged on 29 July 2015,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Darko Matijašić, is a Croatian national, who was born in 1963 and lives in Motovun. He was represented before the Court by Mr M. Zubović, a lawyer practising in Pazin.

2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. The applicant holds a driving licence for motor vehicles of all categories. In 1999, he had to retake his driving test owing to a number of road-traffic offences he had committed.

5 . On 31 May 2013 the applicant was found guilty of the minor road ‑ traffic offence of speeding by a penalty notice issued by the Istria Police Department ( Policijska uprava istarska ). He was fined 3,000 Croatian kunas (HRK) and three penalty points were added to his licence.

6 . By a judgment of the Pula Minor Offences Court ( Prekršajni sud u Puli ) of 6 September 2013, the applicant was fined HRK 3,900 for speeding on 30 September 2011. The court also imposed a protective measure of prohibiting the applicant from driving category B motor vehicles for a period of two months. Another three penalty points were added to his licence.

7 . On 10 April 2014 the Pula Minor Offences Court found the applicant guilty of speeding on 20 November 2013 and fined him HRK 4,500. The court also imposed a protective measure of prohibiting the applicant from driving category B motor vehicles for a period of two months. Another three penalty points were added to his licence.

8 . On 6 August 2014 the Istria Police Department issued the applicant with a ban on driving all motor vehicles for a period of twelve months. This measure was imposed under section 286(6) of the Road Traffic Safety Act, which provided that the ban was to be imposed in respect of a driver who in a period of two years had accumulated a total of nine penalty points for minor road traffic offences entailing the imposition of three penalty points.

9. The applicant appealed against that decision to the High Minor Offences Court ( Visoki prekršajni sud Republike Hrvatske ). He argued, in particular, that the subsequent imposition of the measure in issue for the same conduct for which he had already been found guilty and sentenced in minor-offence proceedings, had amounted to a breach of the ne bis in idem principle.

10 . On 15 October 2014 the High Minor Offences Court dismissed the applicant’s appeal as unfounded on the grounds that the application of the measure under section 286(6) of the Road Traffic Safety Act was not a penalty imposed on the applicant but merely a legal consequence of the fact that he had collected a certain amount of penalty points over a statutory period of time.

11. The applicant challenged that decision before the Constitutional Court ( Ustavni sud Republike Hrvatske ), reiterating his argument of a breach of the ne bis in idem principle. On 27 January 2015 the Constitutional Court declared his complaint inadmissible on the grounds that it was not an individual act amenable to constitutional review.

12. The decision of the Constitutional Court was served on the applicant on 16 February 2015.

13 . The relevant provisions of the Minor Offences Act ( Prekršajni zakon , Official Gazette no. 107/07, with subsequent amendments) read as follows:

Section 5

Types of legal sanctions for minor offences

“(1) Legal sanctions... that can be imposed on a perpetrator [of a minor offence] ... are:

1. penalty (fine and imprisonment),

2. protective measures in accordance with section 50(2) of this Act,

(2) Legal sanctions that are prescribed for minor offences by this Act are:

1. warning measures (admonition and suspended sentence),

2. precautionary measures (section 50(1) of this Act),

3. disciplinary measures.”

Section 34

“(1) If a fine issued in minor-offence proceedings... is not paid in full or in part within the time-limit set in the minor-offence decision, it shall be executed by force...

(2) A fine of above HRK 2,000 which has not been paid in full or in part ... shall be converted to community work...

(3) If the convicted person does not agree to community work or fails to perform it due to his own fault within the set time-limit, the fine shall be replaced by imprisonment.”

Section 50 Types of protective measures

“(1) Precautionary measures include:

...

6. prohibition from driving a motor vehicle ...”

Section 51 The purpose of protective measures

“The purpose of protective measures is to eliminate, through their application, the conditions that enable or encourage the commission of a new minor offence.”

Section 58

Prohibition from driving a motor vehicle

“(1) The protective measure of prohibition from driving a motor vehicle can be applied to the perpetrator of a minor offence against traffic safety, when there is a danger of a repeat offence against traffic safety by means of driving a motor vehicle...”

Section 79

Legal consequences of a conviction

“(2) Legal consequences of a conviction that consist of accumulating penalty points are prescribed by law.”

14 . The relevant provisions of the Road Traffic Safety Act ( Zakon o sigurnosti prometa na cestama , Official Gazette no 67/08, with subsequent amendments), under the heading “Legal consequences of a conviction”, as in force at the material time, read as follows:

Section 286

“1. The legal consequence of the conviction of a driver for specific offences under this Act with final force and effect and on the basis of a certain number of accumulated penalty points shall be the loss of the right to drive a motor vehicle ...

2. The competent police administration or police station shall enter in its records the penalty points for a driver found guilty by a final decision of an offence which attracts penalty points under this Act.

3. Penalty points shall be recorded by the police administration of the police station which instituted the minor-offence proceedings.

4. Upon expiry of a two-year period after the date on which the minor-offence decision on the basis of which penalty points were accumulated and recorded becomes final, the penalty points shall no longer be taken into account when rendering the decisions referred to in subsections 6 and 7 of this provision and shall be deleted from the record.

5. After penalty points have been taken into account for the decisions referred to in subsections 6 and 7 of this provision, they shall be deleted from the driver’s record.

6. A driver who has accumulated nine penalty points within a period of two years ... shall be prohibited from driving motor vehicles of all categories for a period of twelve months.

...”

Section 289

“1. A driver whose ... driving licence has been temporarily seized ... may not operate a vehicle in road traffic for the duration of such a measure.

...

4. A fine in the amount of HRK 5,000 to 15,000 or imprisonment of up to sixty days shall be imposed in minor offence proceedings on a driver who operates a vehicle during the application of the measures referred to paragraph 1 of this section.”

15 . According to comparative data submitted by the Government (document entitled “ European Demerit Point Systems: Overview of their main features and expert opinions ” dated October 2011), 21 out of 27 EU countries had introduced a demerit point system mainly as a prevention tool, whereas some also used it for the correction of offenders’ behaviour and the selection of habitual offenders. According to that report, demerit point systems were introduced to provide higher road safety.

COMPLAINT

16. The applicant complained under Article 4 of Protocol No. 7 to the Convention that his prosecution and punishment for minor road traffic offences, and the subsequent application of a driving ban on account of the same offences, had violated his right not to be punished twice.

THE LAW

17. Complaining about a violation of the ne bis in idem principle, the applicant relied on Article 4 of Protocol No. 7 to the Convention, the relevant part of 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.”

18 . The Government argued, firstly, that the driving ban imposed on the applicant did not meet the “Engel criteria” and could thus not be considered “criminal” in nature. It concerned a preventive administrative measure aimed at ensuring traffic safety and not punishing the perpetrator. Once the police had established that all three of the applicant’s convictions had become final within two years and that each conviction referred to an offence on the basis of which the applicant had accumulated penalty points, the driving ban applied automatically irrespective of the type of offences or sanctions imposed for them. In applying the measure in question, the domestic authorities had not reviewed the applicant’s earlier minor-offence convictions or reassessed his guilt for those offences. Given the nature of the measure as well as its limited duration, the Government considered that it had not placed an excessive individual burden on the applicant.

19. In any event, the Government argued that there had been no duplication of proceedings in the applicant’s case, as the three sets of minor ‑ offence proceedings and the subsequent driving ban had been closely connected in substance and in time, thus forming a coherent response by the State to the applicant’s persistent violation of the traffic regulations.

20. The applicant maintained that the driving ban imposed on him had constituted a punishment and that he had consequently been punished twice for the same behaviour.

21. Article 4 of Protocol No. 7 prohibits the prosecution or trial for a second “criminal offence” in so far as it arose from identical facts or facts which were substantially the same (see Sergey Zolotukhin v. Russia [GC], no. 14939/03, § 82, ECHR 2009; A and B v. Norway [GC], nos. 24130/11 and 29758/11, § 108, 15 November 2016; and Marguš v. Croatia [GC], no. 4455/10, § 114, ECHR 2014).

22. 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 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 Sergey Zolotukhin , cited above, § 52; and Seražin v. Croatia (dec.), no. 19120/15, § 64, 9 October 2018).

23. 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 does not, however, rule out 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 Jussila v. Finland [GC], no. 73053/01, §§ 30-31, ECHR 2006 ‑ XIV, and Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98, §§ 82-86, ECHR 2003 ‑ X).

24. In the present case, the parties did not dispute that the minor-offence proceedings involving road traffic offences were “criminal” in nature for the purposes of Article 4 of Protocol No. 7 (see Bajčić v. Croatia , no. 67334/13, §§ 27-28, 8 October 2020; see also, in the context of Article 6, Marčan v. Croatia , no. 40820/12, § 33, 10 July 2014).

25. As regards the ensuing driving ban, the Court has assessed the nature of driving bans in several cases, either in the context of Article 6 or in the context of Article 4 of Protocol No. 7. In Escoubet v. Belgium ([GC], no. 26780/95, § 38, ECHR 1999 ‑ VII), the Court found in the context of Article 6 of the Convention that the temporary withdrawal of the applicant’s driving licence for six days, before the commencement of any proceedings, on account of a suspected drunk-driving offence did not concern a criminal charge. In Mulot v. France ((dec.), no. 37211/97 , 14 December 1999) the applicant’s driving licence was temporarily withdrawn by a prefect for six months for safety reasons before the commencement of any court proceedings. Also, in Hangl v. Austria ((dec.), no. 38716/97 , 20 March 2001) the two-week driving ban imposed by the police authorities was considered to be of a preventive nature and not of criminal character. On the other hand, in Nilsson v. Sweden ((dec.), no. 73661/01, ECHR 2005 ‑ XIII), the Court found that withdrawal of a driving licence on the ground of a criminal conviction constituted a “criminal” matter for the purpose of Article 4 of Protocol No. 7. What was more, in the Court’s view, the severity of the measure – suspension of the applicant’s driving licence for eighteen months – was in itself so significant, regardless of the context of his criminal conviction, that it could ordinarily be viewed as a criminal sanction. Subsequently, in Boman v. Finland (no. 41604/11, § 32, 17 February 2015) the Court found that the two-month a driving ban imposed on the applicant following his criminal conviction for driving a vehicle without a licence had been “criminal” in nature. In Rivard v. Switzerland (no. 21563/12, § 24, 4 October 2016), where the applicant’s driving license had been withdrawn for one month, after he had already been fined for speeding, and where the Swiss Federal Tribunal had recognised the “criminal” nature of the measure at issue, the Court accepted that it had been “criminal” for the purposes of Article 4 of Protocol No. 7.

26. The Court thus has to examine whether, on the basis of the above criteria, the application of the driving ban under section 286(6) of the Road Traffic Safety Act in respect of the applicant amounted to the application of a penalty in “criminal proceedings”.

27. The domestic legal classification of the driving ban under section 286(6) of the Road Traffic Safety Act is a preventive measure distinct from any penalty that may be applied in criminal or minor offences proceedings.

28. Classification in domestic law is not, however, decisive for the purposes of the Convention, having regard to the autonomous and substantive meaning to be given to the term “criminal” charge and penalty (see paragraph 22 above; see also, among many other authorities, Escoubet , cited above, § 33, and Becker v. Austria , no. 19844/08, § 26, 11 June 2015). The Court must therefore examine the “very nature” of the measure in question.

29. As to the nature of the proceedings imposing a driving ban on the applicant, the Government submitted that under domestic law they were administrative proceedings resulting in a precautionary measure aimed at protecting road traffic safety.

30. The Court observes that the present case concerns a situation in which the driving ban had been imposed on the applicant as a result of the fact that he had collected a certain number of penalty points for traffic violations he had committed over a statutory period of time. In other words, the measure complained of was imposed as a direct and foreseeable consequence of the applicant’s repeated behaviour within a limited period of time which demonstrated his unsuitability to hold licence. It should therefore be distinguished from the cases referred to above (see Nilsson , Boman , and Rivard , all cited above), in which the imposition of the driving ban had been issued as part of the sanction for a particular road traffic offence.

31. The Court further notes that under Croatian law, two types of driving bans can be imposed for traffic violations. The first type of driving ban, regulated by the Minor Offences Act, may be imposed on a perpetrator of a minor offence as part of his punishment, in addition to a fine or imprisonment (see paragraph 13 above). The driving ban as a precautionary measure in that context usually reflects the gravity of the minor offence committed and its duration may vary. Such a measure thus clearly pursues the aims of retribution and deterrence together with that of prevention and is to be regarded as “criminal” in nature.

32. The second type of driving ban, regulated by section 286(6) of the Road Traffic Safety Act, ensues automatically after an individual collected a certain number of negative points over a specific amount of time determined by law. There is no fresh examination of previous traffic offences. As the Government pointed out, neither the level of guilt of the individual nor the seriousness of the minor offence(s) is re-examined (see paragraph 18 above). The driving ban is defined as a legal consequence of several convictions. Although it has to a certain degree a punitive and deterrent effect, its aim is primarily preventive, to ensure road traffic safety.

33. The Court observes in this connection that, according to comparative law information submitted by the Government and uncontested by the applicant, by 2012 at least 21 out of 27 European Union Member States had implemented a system of penalty points in traffic, precisely with a view to improving road traffic safety and to further educating recidivist drivers of the existing road traffic safety regulations (see paragraph 15 above).

34. The Court for its part has stressed the importance of putting in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life in the context of road traffic (see Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, § 135, 25 June 2019). It has also criticised deficient functioning of the relevant road safety regulatory framework to address a repeated and habitual unlawful conduct in road traffic (see Smiljanić v. Croatia , no. 35983/14, § 71, 25 March 2021).

35. In light of the foregoing, the Court accepts that the driving ban under section 286(6) of the Road Traffic Safety Act was a clear and foreseeable consequence of the applicant’s repeated violations of road traffic regulations and jeopardising the life and limb of others. As the High Minor Offences Court stressed, the driving ban imposed did not amount to a penalty for the applicant’s previous behaviour, but instead constituted a legal consequence of the penalty points he had collected on his licence due to his previous convictions (see paragraph 10 above). The Court is thus satisfied that the said measure was aimed primarily at road traffic safety and not punishment of the applicant (see, mutatis mutandis , Seražin , cited above, § 79).

36. The Court notes that the application of the driving ban under section 286(6) of the Road Traffic Safety Act did not involve the imposition of fine or deprivation of liberty, which is normally an indication of a criminal sanction (see Sergey Zolotukhin , cited above, § 56; see also, M. v. Germany , no. 19359/04, §§ 126-129 and 132, ECHR 2009).

37. It is true that non-compliance with the driving ban may result in a fine and imprisonment but that would not be a direct consequence. Such non-compliance is 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 (see paragraph 14 above). According to the Court’s case ‑ law, such an indirect ability to apply the sanctions is not sufficient to determine the measure as “criminal” (see Escoubet , cited above, § 38; and Seražin , cited above, § 89).

38. In view of the above findings, the Court does not consider that the application of the driving ban under section 286(6) of the Road Traffic Safety Act in respect of the applicant involved the determination of a “criminal charge”. It therefore concludes that Article 4 of Protocol No. 7 does not apply in the present case.

39. It follows that the applicant’s complaint is 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,

Declares the application inadmissible.

Done in English and notified in writing on 1 July 2021.

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Liv Tigerstedt Péter Paczolay Deputy Registrar President