FOURTH SECTION

DECISION

Application no . 48298/13 Goran Å UBINSKI against Slovenia

The European Court of Human Rights (Fourth Section), sitting on 13 September 2016 as a Chamber composed of:

András Sajó , President, Nona Tsotsoria , Paulo Pinto de Albuquerque , Egidijus Kūris , Iulia Motoc , Gabriele Kucsko-Stadlmayer , Marko Bošnjak , judges, and Marialena Tsirli, Section Registrar ,

Having regard to the above application lodged on 24 July 2013,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Goran Šubinski , is a Slovenian and Croatian national who was born in 1971 and is currently serving a prison sentence in Dob pri Mirni . He was represented before the Court by Mr Ž. Klun , a lawyer practising in Ljubljana.

A. The circumstances of the case

1 . The facts of the case, as submitted by the applicant, may be summarised as follows.

2 . On 14 April 2003 the applicant was arrested and remanded in custody on suspicion of having committed a criminal offence. The investigating judge of the Murska Sobota District Court ordered him to be placed in pre-trial detention in the remand section of Murska Sobota Prison, where he remained until a final decision was delivered in his case on 17 March 2005.

3 . On 12 March 2005 the applicant attempted to escape from detention. In the early hours of the morning, he caused a flood in his cell by damaging the pipe under the sink. Two prison officers came to turn the water off, with one of them setting about repairing the leak and the other standing at the cell door. The applicant sprayed them both with pepper spray, stabbed one of them with a piece of wire from a coat hanger and attempted to push past them and get out of the cell. However, the prison officers managed to restrain him and prevented him from escaping. The prison officer who was stabbed sustained minor injuries.

1. Disciplinary proceedings

4 . On 14 March 2005 the Murska Sobota Prison administration informed the Murska Sobota District Court about the applicant ’ s attempted escape.

5 . On 15 March 2005 the president of the pre-trial panel of the Murska Sobota District Court found the applicant guilty of making an item intended to be used as a weapon in an attack and of having physically attacked a prison officer. The applicant had thereby committed disciplinary breaches referred to in the first and second points of the second paragraph of section 213.c of the Criminal Procedure Act (see paragraph 22 below).

6 . The president of the pre-trial panel punished the applicant by prohibiting his visits and correspondence for a period of two months.

2. Criminal proceedings

7 . On 17 March 2010 the Murska Sobota District Court found the applicant guilty of attempted escape and of an attempt on the life of the prison officer who was stabbed with the wire. He was convicted of attempted escape and attempted murder and sentenced to nine and a half years ’ imprisonment.

8 . At the trial, the applicant objected that the institution of the criminal proceedings had violated the principle of ne bis in idem . However, the court held that the disciplinary sanction that had been imposed on him had not excluded prosecution under the rules of criminal procedure. According to the district Court, the principle of ne bis in idem would only be violated if the provisions concerning a disciplinary breach entirely coincided with the elements of a criminal offence, which was, however, not the case in the applicant ’ s situation. Namely, the elements of the disciplinary breaches that the applicant had been found to have committed were not entirely equivalent to the elements of the criminal offences of attempted murder and attempted escape which were examined in the criminal proceedings.

9 . The applicant appealed against the judgment, arguing, inter alia , that the criminal trial had amounted to a violation of the ne bis in idem principle.

10 . On 9 December 2010 the Maribor Higher Court granted the applicant ’ s appeal in so far as it related to the nature and legal classification of the offences he had committed and remitted the case to the district court for reconsideration, instructing the lower court to establish the facts more thoroughly. However, the higher court dismissed the applicant ’ s complaint of double jeopardy, confirming the view of the lower court that the sanction imposed under the rules of disciplinary procedure did not exclude the prosecution of the applicant on criminal charges. The applicant had not been convicted of a criminal offence in the disciplinary proceedings, but merely of two breaches of disciplinary rules. That meant, therefore, that the matter brought before the criminal court had not yet been resolved.

11 . In the course of the retrial, the applicant asked for a different panel of the Murska Sobota District Court to consider his case because the panel that had delivered the first judgment had already taken a position on his guilt.

12 . On 26 January 2011 a newspaper published an article saying that the applicant would be tried before the same panel as in the previous set of first-instance proceedings because the president of the Murska Sobota District Court had dismissed the applicant ’ s application for a different one.

13 . On 27 January 2011 the president of the Murska Sobota District Court dismissed the applicant ’ s application for the retrial to be held before a different panel with the reasoning that there existed no statutory grounds for disqualifying the judges who had participated in the first set of proceedings. The fact that they had already pronounced themselves on the issues concerned did not in itself imply that their impartiality was compromised and that the retrial would not be conducted fairly. The president noted that the Maribor Higher Court had quashed the first-instance judgment owing to a failure to fully establish the facts concerning the applicant ’ s intent to murder the prison officer he had stabbed in the back, which required additional evidence to clarify the matter. Accordingly, a new evaluation of fresh evidence was to be made in the case. In the president ’ s opinion, there were no indications that such an evaluation could not be made in a fair and impartial manner by the judges who were already acquainted with the case.

14 . On 14 February 2011 the applicant ’ s counsel requested an explanation from the president of the Murska Sobota District Court of how it had been possible, in the absence of any press conference, for the newspaper to obtain information about the dismissal of the applicant ’ s application before a formal decision had been issued.

15 . On 11 March 2011 the president of the Murska Sobota District Court replied to the applicant ’ s counsel that decisions on parties ’ procedural motions were taken by him personally, while the drafts were prepared by the district court ’ s legal advisers on his instructions. The president further stated that he had interviewed the staff working on the applicant ’ s case, but had not obtained any relevant information. He had also contacted the journalist who had written the article in question, who had explained that it had been based on his experience and expectations.

16 . On 18 May 2011 the Murska Sobota District Court delivered a new judgment finding the applicant guilty of attempted escape and of stabbing the prison officer in the back with a coat hanger wire in order to facilitate his escape, causing him minor injuries. The applicant was convicted of attempted escape under Article 294 in conjunction with Article 22 of the Criminal Code and of causing minor bodily harm under Article 133 of the Code. He was sentenced to two years and five months ’ imprisonment.

17 . The applicant again appealed against the judgment, arguing that the ne bis in idem principle had been violated by the institution of criminal proceedings against him. He also alleged that he had only committed one criminal offence, namely attempted escape under Article 294 of the Criminal Code. In the applicant ’ s opinion, the infliction of minor bodily harm had been a lesser offence incorporated into the definition of “force”, constituting one of the elements of the criminal offence of escaping from custody (see paragraph 23 below). In that connection, the applicant relied on the Commentary to the Criminal Code, stating that if an individual escaping from custody used force which resulted in grievous bodily harm or murder, the offence of escape from custody was merged into either of the more serious offences.

18 . On 22 May 2012 the Maribor Higher Court granted the applicant ’ s appeal in part, reducing his sentence to one year and two months ’ imprisonment. However, the applicant ’ s complaint of double jeopardy was dismissed. Moreover, as regards the applicant ’ s view that the injuries he had inflicted on the prison officer should be incorporated into the criminal offence of escape from custody, the higher court took the view that only such force as did not reach the threshold of minor bodily harm could be incorporated into the criminal offence of escape from custody. The higher court added that the merging of offences was only applied when the offence of escape from custody was absorbed by the more serious offences of bodily harm.

19 . The applicant lodged a request for the protection of legality (an extraordinary legal remedy) with the Supreme Court, reiterating, inter alia , the complaints of double jeopardy and that minor bodily harm should be incorporated into the offence of escape from custody.

20 . On 8 November 2012 the Supreme Court dismissed the applicant ’ s request for the protection of legality, confirming the view of the lower courts that a final decision delivered in disciplinary proceedings did not preclude bringing criminal charges against him. The disciplinary sanction could not be equated with a criminal sentence and, moreover, section 213.c of the Criminal Procedure Act did not exclude prosecution for acts defined as disciplinary breaches. Further, as regards the alleged requirement to incorporate minor bodily harm into the description of the criminal offence of escape from custody, the Supreme Court reiterated the view of the Maribor Higher Court that the facts at issue had constituted two separate criminal offences because the use of force at the threshold of minor bodily harm was not absorbed by the offence of escape from custody. The applicant lodged a constitutional complaint with the Constitutional Court.

21 . On 28 March 2013 the Constitutional Court found the applicant ’ s constitutional complaint inadmissible.

B. Relevant domestic law

22 . Disciplinary matters regarding pre-trial detainees are regulated by section 213.c of the Criminal Procedure Act, which provides as follows:

“(1) Detainees may be disciplined for disciplinary breaches. The investigating judge or the president of the [pre-trial] panel may impose a disciplinary sanction.

(2) Disciplinary breaches are:

– physical attacks on other detainees, prison officers or other official persons;

– the production, acceptance or introduction into the facility of items intended for an attack or escape;

– introduction into the facility and production of alcoholic beverages and narcotics and their distribution,

– violations of the regulations on safety at work, fire safety, explosions and other natural disasters,

– repeated violations of the internal rules of the facility,

– causing serious material damage intentionally or through serious negligence,

– insults and undignified behaviour.

(3) For disciplinary breaches, a prohibition of or restrictions on visits and correspondence may be imposed. Restrictions on or the prohibition of visits shall not apply to visits by defence counsel, doctors, the human rights ombudsman and diplomatic and consular representatives of the country of which the detainee is a citizen.

(4) Complaints may be lodged with the panel (sixth paragraph of section 25) against the decision on punishments imposed under the first paragraph of this section within twenty-four hours of receipt thereof. The appeal shall not stay the execution of the decision.”

23 . The relevant provisions of the Criminal Code concerning attempted criminal acts and the offences of minor bodily harm and escape from custody provide as follows:

Article 22 – Attempt to Commit a Criminal Act

“(1) Anybody who intentionally initiated a criminal offence but did not complete it shall be punished for an attempted criminal act, provided that such an attempt involved a criminal offence for which a sentence of three years ’ imprisonment or a heavier sentence may be imposed under statute; attempts to commit any other criminal offence shall be punishable only when so expressly provided for by statute.

(2) A perpetrator who attempted to commit a criminal offence shall be punished within the limits prescribed for such an offence or the sentence shall be reduced, as the case may be.”

Article 133 – Minor Bodily Harm

“(1) Whoever inflicts bodily harm on another person resulting in the temporary weakness or impairment of an organ or part of his body, his temporary inability to work, the impairment of his appearance or temporary damage to his health shall be punished by a fine or by imprisonment for not more than one year.

(2) If the injury under the preceding paragraph has been inflicted by means of a weapon, dangerous tool or any other instrument capable of causing serious bodily harm or grave damage to health the perpetrator shall be sentenced to imprisonment for not more than three years.

...”

Article 294 – Escape from Custody

“Whoever, by force or threat of imminent attack on life or limb, escapes from a penal institution or detention centre shall be sentenced to imprisonment for not more than three years.”

COMPLAINTS

24 . Invoking Article 4 of Protocol No. 7 to the Convention the applicant complained that he had been tried and convicted twice for the same criminal offence.

25 . Moreover, the applicant complained under Article 6 §§ 1 and 2 of the Convention that he had not had a fair trial as the decision to dismiss his request that the case be retried before a different panel of judges had been published in a newspaper before the decision had even been written.

26 . Lastly, relying on Article 7, the applicant alleged that he had been convicted of two separate charges of escape from custody and causing minor bodily harm despite the fact that the latter charge was incorporated into the definition of the offence of escape from custody.

THE LAW

A. Complaint under Article 4 of Protocol No. 7 to the Convention

27 . The applicant claimed that he had been tried and punished twice. He invoked 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.

...”

28 . The applicant argued that the disciplinary proceedings in which he had been found guilty of making a weapon to be used in an attack and of attacking a prison officer (see paragraph 5 above), for which he had been punished by prohibiting his visits and correspondence for two months, had constituted a decision on the merits which had precluded another set of proceedings being instituted for the same offences under the rules of criminal procedure. Moreover, the purpose of the sanctions imposed on him, to prevent him from committing further violations, had been the same in both sets of proceedings. In the applicant ’ s view that purpose had been achieved by the imposition of the sanction in the disciplinary proceedings as he had not attempted to escape from custody since.

29 . The Court reiterates that the aim of Article 4 § 1 of Protocol No. 7 is to prohibit the repetition of criminal proceedings that have been concluded by a final decision. In the present case, two measures were imposed on the applicant in two separate and consecutive sets of proceedings. On 15 March 2005 he was found guilty of two breaches of pre-trial detention discipline. On 18 May 2011 he was found guilty of two criminal offences and sentenced to two years and five months ’ imprisonment, subsequently reduced to a year and two months.

30 . The Court considers that in order to ascertain whether the applicant can invoke the protection of Article 4 of Protocol No. 7 it is necessary to establish, firstly, whether the disciplinary proceedings against the applicant may be qualified as “criminal” within the meaning of that provision. In that connection, the Court points out that 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 v. Russia [GC], no. 14939/03, § 52, ECHR 2009, and the references cited therein).

31 . 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. It is enough that the offence in question is by its nature to be regarded as criminal or that the offence renders the person liable to a penalty which by its nature and degree of severity belongs in the general criminal sphere (see Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98, § 86, ECHR 2003 ‑ X). The relative lack of seriousness of the penalty cannot divest an offence of its inherently criminal character (see Öztürk v. Germany , 21 February 1984, § 54, Series A no. 73, and Lutz v. Germany , 25 August 1987, § 55, Series A no. 123). This 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 Jussila v. Finland [GC], no. 73053/01, §§ 30-31, ECHR 2006-XIV, and Ezeh and Connors , cited above, § 82-86).

1. The first of the Engel criteria – the legal characterisation under domestic law

32. The Court observes that the sanction imposed on the applicant was based on section 213.c of the Criminal Procedure Act (see paragraphs 5 and 22 above). Under domestic law, the relevant provision defines and sanctions disciplinary breaches and, as such, belongs to disciplinary law.

33 . However, the Court reiterates that the legal characterisation of the procedure and the offence under national law cannot be the sole criterion of relevance for the applicability of the principle of non bis in idem under Article 4 § 1 of Protocol No. 7. Otherwise, the application of that 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 Sergey Zolotukhin v. Russia , cited above, § 52).

2. The second of the Engel criteria – the nature of the charges

34 . In the case of Campbell and Fell v. the United Kingdom (28 June 1984, §§ 68-69, Series A no. 80), it was noted that misconduct by a prisoner might take different forms. While certain acts were clearly no more than questions of internal discipline, others could not be seen in the same light. Relevant indicators were that “some matters may be more serious than others”, that the illegality of the relevant act might turn on the fact that it was committed in prison and that conduct which constituted an offence under such rules might also amount to an offence under the criminal law so that, theoretically at least, there was nothing to prevent conduct of that kind being the subject of both criminal and disciplinary proceedings.

35 . In the present case, the Court notes that the offences in question related to a group possessing a special status, namely prisoners, as opposed to all citizens. However, that cannot be considered as a conclusive argument for their purely disciplinary nature. Namely, it must also be observed that while the disciplinary offences of attacking a prison officer and the production of an item intended to be used in an attack with which the applicant was charged in the disciplinary proceedings did not entirely correspond to the criminal charges of attempted escape from custody and minor bodily harm, they were clearly more serious than mere violations of internal discipline. Moreover, the attack on the prison officer at the same time constituted conduct punishable under criminal law.

36 . The Court considers that those factors, even if they were not of themselves sufficient to lead to the conclusion that the offences with which the applicant was charged are to be regarded as “criminal” for Convention purposes, clearly give them a certain colouring which does not entirely coincide with that of a purely disciplinary matter.

37 . In the Court ’ s opinion it is therefore necessary to turn to the third criterion: the nature and degree of severity of the penalty that the applicant risked incurring (see Engel and Others , § 82, and Campbell and Fell , § 72, both cited above).

3. The third of the Engel criteria – the nature and severity of the penalty

38 . As already mentioned, the disciplinary sanction imposed on the applicant for the two breaches of discipline in pre-trial detention was a two-month prohibition of visits and correspondence. While that sanction certainly amounted to an aggravation of the conditions of the applicant ’ s pre-trial detention, albeit for a limited period, the Court has already found that measures constituting a mere aggravation of the conditions of detention, as opposed to those extending it, did not suffice to bring the disciplinary proceedings in question within the sphere of being “criminal” within the meaning of the Convention (see Toth v. Croatia ( dec. ), no. 49635/10, § 37, 6 November 2012, and the references therein). The same considerations must apply to instances of aggravation of the conditions of pre-trial detention.

39 . Moreover, the Court notes that the restriction of prisoners ’ visiting rights has been found to fall within the sphere of their personal rights and, accordingly, held to be civil in nature (see Ganci v. Italy , no. 41576/98, § 25, ECHR 2003 ‑ XI). In the Court ’ s opinion, that conclusion applies equally to a restriction on prisoners ’ correspondence.

4. Conclusion

40 . Having regard to the foregoing considerations, the Court finds that the disciplinary proceedings brought against the applicant were not criminal in nature and that therefore his subsequent conviction in criminal proceedings did not contravene the ne bis in idem principle of Article 4 of Protocol No. 7 to the Convention.

41 . 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.

B. Other complaints

42 . The applicant further stated that the decision of the president of the Murska Sobota District Court to dismiss his application for the case to be retried before a different panel of judges had been published in a newspaper a day before the decision had been delivered. According to the applicant, that indicated that the case against him had been decided even before the retrial had begun and amounted to a violation of Article 6 §§ 1 and 2 of the Convention, the relevant parts of which provide as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

43 . The Court notes that the president of the district court conducted an inquiry into a possible breach of confidentiality which, however, brought no results (see paragraph 15 above). The president denied that the information at issue had been divulged to the press by employees of the district court. However, even assuming that there was a breach of confidentiality, the Court observes that the information that was published concerned a strictly procedural decision on the composition of the trial panel and involved no assumptions about the applicant ’ s guilt. It was also not relevant to the outcome of the trial. Furthermore, the applicant in his application to the Court did not substantiate what, if any, repercussions the publication of the newspaper article had on his right to be presumed innocent or, more generally, on the fairness of his trial.

44 . Thus, the Court finds that the applicant ’ s submissions do not disclose any appearance of a violation of Article 6 §§ 1 and 2 of the Convention.

45 . Lastly, the applicant complained that the charge of causing minor bodily harm should have been absorbed by the offence of escape from custody and that consequently he should only have been tried for the latter offence. In that regard, the applicant invoked Article 7 of the Convention, the relevant part of which 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.

...”

46 . In so far as the applicant ’ s submissions may be understood to be saying that the domestic court ’ s interpretation of the element of “force” contained in the criminal offence of escape from custody fell short of the requirement of foreseeability, the Court reiterates that in any system of law, including criminal law, however clearly drafted a legal provision may be, there is an inevitable element of judicial interpretation (see, as a recent authority, Del Rio Prada v. Spain ([GC], no. 42750/09, § 92, ECHR 2013). Moreover, on many occasions and in very different spheres the Court has held that it is in the first place for the national authorities, and in particular the courts, to construe and apply the domestic law (see, for example, Slivenko and others v. Latvia ( dec. ), no. 48321/99, § 105, ECHR 2003-XI). Accordingly, an issue of foreseeability could only arise under the Convention if the domestic courts ’ assessment of the facts or domestic law was manifestly unreasonable or arbitrary.

47 . Having regard to the limitations inherent in defining any criminal offence, the Court finds that the domestic law may not have provided a definite answer to the question of what amount of force was incorporated in the criminal offence of escape from custody. However, since the infliction of minor bodily harm was clearly punishable as a separate criminal offence and referred to a different legal interest, the Court does not consider that the applicable legislation gave the applicant any reasonable expectation that the latter offence would be absorbed by the offence of escape from custody. Nor did the applicant allege that his opinion with regard to the matter had been based on the prevailing case-law of the domestic courts. The Court thus takes the view that the applicant could have reasonably anticipated that he would be prosecuted for two separate offences of causing minor bodily harm and attempting to escape from custody. Therefore, in the Court ’ s opinion, the domestic courts ’ interpretation of “force” in the applicant ’ s case was neither unforeseeable nor arbitrary.

48 . It follows that also 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.

For these reasons, the Court unanimously

Declares the application inadmissible .

Done in English and notified in writing on 6 October 2016 .

Marialena Tsirli András Sajó Registrar President