FIRST SECTION

DECISION

Application no . 49635/10 Milenko TOTH against Croatia

The European Court of Human Rights (First Section), sitting on 6 November 2012 as a Chamber composed of:

Isabelle Berro-Lefèvre , President, Elisabeth Steiner , Nina Vajić , Anatoly Kovler , Khanlar Hajiyev , Linos-Alexandre Sicilianos , Erik Møse , judges, and Søren Nielsen , Section Registrar ,

Having regard to the above application lodged on 30 July 2010,

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 Milenko Toth, is a Croatian national, who was born in 1962 and is currently serving a prison term in Lepoglava State Prison (“the Prison”).

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

A. The circumstances of the case

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

1. Disciplinary proceedings in prison

4. By a decision of the Prison Governor of 30 November 2007, the applicant was found to have committed two disciplinary offences. The relevant part of the decision reads:

“The accused inmate Toth Milenko ...

is guilty

(1) in that on 6 November 2007 when he was receiving his mail he started to curse and insult prison guard J.K. by telling him ‘ It is obvious how much schooling you have now when you are searching this! ’ and ‘ I fuck you unschooled! ’ ; and

(2) in that on 6 November 2007, during a search of prisoners in Section 1A of the Prison, he insulted prison guards D.S. and M.B. by calling them “garbage” and then prevented them from carrying out their duties by holding D.S. by the hand and starting to pull him and saying ‘ Leave this, you garbage ’ and when they used force against him he threatened them by yelling ‘ I ’ m going to kill you all! ’ .”

As regards the offence under (1), the applicant was found to have disclosed impolite behaviour and to have verbally insulted the guards. He was punished with a prohibition on using money inside the Prison for a period of three months. As regards the offence under (2), he was found to have prevented an official from carrying out his duties and punished with twenty-one days of solitary confinement.

5. On an unspecified date the applicant lodged an appeal arguing that the facts of the case had been wrongly established.

6. On 4 January 2008 a Varaždin County Court sentence-execution judge ( sudac izvršenja Županijskog suda u Varaždinu ) in substance upheld the Governor ’ s decision, in that he found that the applicant had committed one minor disciplinary offence consisting of insults, making threats and impolite behaviour and one grave disciplinary offence consisting of preventing an official from carrying out his or her duties. He punished the applicant with twenty-one days of solitary confinement for the grave disciplinary offence and also upheld the other sanction imposed.

2. Criminal proceedings

7. On 9 November 2007 the Prison administration lodged a criminal complaint against the applicant with the Ivanec Municipality State Attorney ’ s Office ( Općinsko državno odvjetništvo u Ivancu ) alleging that on 6 November 2007 the applicant had uttered threats to “find and kill them all” to prison guards D.S. and M.B.

8. In the course of the criminal proceedings a copy of the above ‑ mentioned disciplinary decision was enclosed in the case-file.

9. On 31 January 2008 the applicant was indicted on charges of making death threats to State officials in the Varaždin Municipal Court ( Općinski sud u Varaždinu ). On 7 April 2010 that court found the applicant guilty of two counts of making threats. The relevant part of the decision reads:

“The accused Toth Milenko ...

is guilty

in that at 1 p.m. on 6 November 2007 in Section 1A of the Lepoglava State Prison, during the search of his belonging, when he was separated from the other inmates by guards D.S. and M.B. because of the threat that he would burn down his cell, and, being revolted, he called guards D.S. and M.B. garbage and told them that he was going to find and kill them all.”

He was sentenced to three years and ten months ’ imprisonment.

10. The applicant lodged an appeal whereby he complained, inter alia , that the principle of ne bis in idem had been violated. On 7 May 2010 the Varaždin County Court dismissed the appeal, finding that the first proceedings conducted in the prison had been disciplinary and not criminal in nature. The relevant part of the judgment reads:

“ ... a disciplinary measure is not a criminal punishment because the prison bodies which conduct disciplinary proceedings are not courts ... Even though the main purpose of a disciplinary measure ... is deterring of the perpetrator from committing a fresh disciplinary offence, a disciplinary offence ... does not involve deprivation of liberty ... ”

11. On 11 May 2010 the applicant lodged a request for an extraordinary review of a final judgment with the Supreme Court ( Vrhovni sud Republike Hrvatske ) whereby he again complained, inter alia , that the principle of ne bis in idem had been violated.

12. On 20 May 2010 the applicant lodged a constitutional complaint whereby he also, inter alia , complained that the principle of ne bis in idem had been violated.

13. On 31 August 2010 the Supreme Court dismissed the request for the extraordinary review of a final judgment on the same basis as the County Court.

14. On 4 July 2012 the Constitutional Court ( Ustavni sud republike Hrvatske ) dismissed the applicant ’ s constitutional complaint of 20 May 2010, endorsing the views of the lower courts.

B. Relevant domestic law

15. The relevant provisions of the Criminal Code ( Kazneni zakon , Official Gazette nos. 110/1997, 27/1998, 50/2000, 129/2000, 51/2001, 113/2001, 190/2003, 105/2004, 84/2005, 71/2006, 152/2008 and 57/2011) read:

MAKING THREATS

Article 129

“(1) Whoever threatens another person with harm in order to intimidate or disturb that person shall be fined up to one hundred and fifty monthly wages or sentenced to imprisonment for a term not exceeding six months.

(2) Whoever seriously threatens to kill another person ... shall be fined or sentenced to imprisonment for a term not exceeding one year.

...”

INSULT

Article 199

“(1) Whoever insults another person shall be fined ... or sentenced to imprisonment for a term not exceeding three months.

(2) Whoever insults another person ... in front of other people ... shall be fined ... or sentenced to imprisonment for a term not exceeding six months.

... ”

PREVENTING AN OFF I CIAL FROM CA R RYING OUT HIS OR HER DUTIES

Article 317

“(1) Whoever, [whether] by using force or threatening that he or she will use force, prevents an official from carrying out his or her duties or in the same manner forces him or her to carry out his or her duties shall be sentenced to imprisonment for a term of between three months and three years.

... ”

16. The relevant provisions of the Code of Criminal Procedure ( Zakon o kaznenom postupku , Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002, 63/2002, 62/2003 and 115/2006) read as follows:

Article 368

“An infringement of the Criminal Code arises if:

...

3. there exist circumstances which exclude criminal prosecution, in particular, where ... the matter has already been finally adjudicated;

...”

Article 425

“(1) A defendant who has been finally sentenced to a prison term ... may lodge a request for the extraordinary review of a final judgment on account of infringements of this Act.

(2) A request for the extraordinary review of a final judgment shall be lodged within a month after the final judgment has been served on the defendant.

...”

Article 426

“The Supreme Court shall decide requests for the extraordinary review of a final judgment.”

Article 427

“A request for the extraordinary review of a final judgment may be lodged [in respect of]:

1. an infringement of the Criminal Code to the detriment of the convicted person under Article 368(1)-(4) of this Act ...

...

3. an infringement of the rights of the defence at the trial or of the procedural rules at the appellate stage, if it may have influenced the judgment.”

17. The relevant provisions of the Enforcement of Prison Sentences Act ( Zakon o izvršavanju kazne zatvora , Official Gazette nos. 128/1999 and 190/2003), read as follows:

DISCIPLINARY OFFENCES, MEASURES AND PROCEEDINGS

Section 145

“...

(2) Minor disciplinary offences are:

...

8. insulting and impolite behaviour;

...

(3) Grave disciplinary offences are:

...

4. violent behaviour;

...

10. preventing an official or any other person involved in the implementation of the programme of execution [of prison sentences] from performing their duties;

...”

DISCIPLINARY MEASURES

Section 146

“(1) Disciplinary offences are punishable with disciplinary measures.

(3) Disciplinary measures are:

1. an admonition;

2. restriction or prohibition on using money inside the prison for up to three months;

3. restriction or temporary deprivation of some or all privileges enumerated in sections 129 and 130 of this Act;

...

5. solitary confinement for up to twenty-one days during free time or [all] day and night;

...”

PROCEEDINGS IN CONNECTION WITH COMMITTING A FRESH CRIMINAL OFFENCE WHILE SERVING A PRISON TERM

Section 149

“(1) A prisoner who commits a criminal offence liable to State-assisted prosecution and a fine or imprisonment of up to six months shall be given a disciplinary punishment.

(2) When a prisoner commits any other criminal offence liable to State-assisted prosecution, the prison governor shall immediately inform a competent State attorney of it. The prison governor may order the temporary separation of that prisoner from the other prisoners ... until a court ’ s decision.

... ”

COMPLAINTS

18. The applicant complained under Article 4 of Protocol No. 7 that he had been tried and convicted twice for the same offence.

19. The applicant also complained under Article 6 of the Convention that the criminal proceedings against him had been instituted despite the fact that the injured parties had not lodged a criminal complaint.

20. Lastly, he complained under Article 13 that he had had no effective remedy.

THE LAW

A. Alleged violation of Article 4 of Protocol No. 7 to the Convention

21. The applicant complained that he had been tried and convicted twice for the same offence. 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.”

1. The parties ’ submissions

22. The Government argued that the applicant had abused his right of petition because his punishment of a prohibition on using money inside the Prison for three months given in the disciplinary proceedings had been insignificant, while his punishment of solitary confinement had been justified. They further argued that the offence in respect of which the applicant had been punished in the disciplinary proceedings was not a criminal offence but rather a disciplinary one, since it was classified as such in the Enforcement of Prison Sentences Act. The purpose of punishing disciplinary offences committed by prisoners was to ensure the proper functioning of the prison regime. These offences were not part of a person ’ s criminal record.

23. As regards the legal character of the disciplinary offence in question, the Government argued that the elements of the criminal offence of making threats were threatening an official in connection with his or her duties. The disciplinary offence of insult, making threats and impolite behaviour for which the applicant had been punished in the disciplinary proceedings consisted of behaviour which was unacceptable in the prison context. Thus, the threats made by the applicant had been only one of the elements of the disciplinary offence in issue.

24. The Government further argued that the purpose of the punishment given in the disciplinary proceedings was not retribution, but regulatory. Disciplinary offences were exclusively directed towards prisoners.

25. The applicant maintained his position.

2. The Court ’ s assessment

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.

27. In addition, it is the Court ’ s established jurisprudence that the second and third criteria laid down in Engel are alternative and not necessarily cumulative: for Article 6 to be held applicable, it suffices that the offence in question is by its nature to be regarded as “criminal” from the point of view of the Convention, or that the offence made the person liable to a sanction which, by its nature and degree of severity, belongs in general to the “criminal” sphere (see Öztürk v. Germany , 21 February 1984, Series A no. 73, § 54, and Lutz v. Germany , 25 August 1987, Series A no. 123, § 55). This does not exclude that a cumulative approach may be adopted 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 Bendenoun v. France , 24 February 1994, Series A no. 284, § 47; Benham v. the United Kingdom , 10 June 1996, Reports of Judgments and Decisions 1996-III, § 56; Garyfallou AEBE v. Greece, 24 September 1997, Reports 1997-V, § 33; and Lauko v. Slovakia, 2 September 1998, Reports 1998-VI, § 57).

28. The Court has already held that the “ Engel ” criteria apply in the prison context in connection with the disciplinary punishment of prisoners (see Campbell and Fell , v. the United Kingdom , 28 June 1984 , §§ 68-69, Series A no. 80, and Ezeh and Connors , cited above, §§ 83-85)

(a) The first of the Engel criteria – the domestic classification of the offences

29. The Court observes that the applicant, who has been serving a prison term since 1992, was found to have verbally insulted prison guards, made threats, disclosed impolite behaviour and prevented an official from carrying out his or her duties in the proceedings conducted before the Prison authorities and the Varaždin County Court judge responsible for the execution of sentences. He was punished with a prohibition on using money inside the Prison for three months as well as with twenty-one days of solitary confinement. Under Croatian law, the offences in issue were classified as disciplinary offences under the Enforcement of Prison Sentences Act.

30. However, 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. Furthermore, in the domestic legal classification the offences in issue amounted at the same time to disciplinary offences under section 145 of the Enforcement of Prison Sentences Act and to criminal offences under Articles 129 (making threats); 199 (insult) and 317 (preventing an official from carrying out his or her duties) of the Criminal Code. Thus, the Court cannot on this criterion alone decide on whether the disciplinary proceedings were “criminal” in nature.

31. The notion of “penal procedure” in the text of Article 4 of Protocol No. 7 must also 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 ).

(b) The second of the Engel criteria – the nature of the charges

32. In Campbell and Fell (cited above, § 71), 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 prison rules might also amount to an offence under the criminal law so that, theoretically at least, there was nothing to prevent conduct of this kind being the subject of both criminal and disciplinary proceedings.

33. The charges brought against the applicant in the disciplinary proceedings might not be considered as entirely the same as those brought against him in the criminal proceedings. While in the disciplinary proceedings he was punished for verbal insults, making threats, impolite behaviour and preventing an official from carrying out his or her duties, in the criminal proceedings he was found guilty of making death threats. However, as already indicated above, some of the charges brought against the applicant in the disciplinary proceedings clearly corresponded to certain offences in the ordinary criminal law. Thus, the charges of verbal insults, making threats and preventing an official from carrying out his or her duties are also prescribed under Articles 129, 199 and 317 of the Criminal Code.

34. The Court considers that these factors, even if they were not in themselves sufficient to lead to the conclusion that the offences with which the applicant was charged in the disciplinary proceedings 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.

35. The Court finds that it is therefore necessary to turn to the third criterion: the nature and degree of severity of the penalty that the applicants risked incurring (see Engel and Others , § 82, and Campbell and Fell , § 72, both cited above).

(c) The third of the Engel criteria – the nature and severity of the penalty

36. The Court has held that adding additional days to an already convicted prisoner ’ s sentence amounted to a criminal penalty (see Campbell and Fell , § 82, and Ezeh and Connors , § 126, both cited above).

38. In the present case the applicant was punished with twenty-one days of solitary confinement, the maximum prescribed under the Enforcement of Sentences Act. This punishment did not extend the applicant ’ s prison term and thus did not amount to an additional deprivation of liberty, but only to aggravation of the conditions of his detention. Having regard to this, the Court finds, in compliance with the above case-law, that the first set of proceedings conducted before the Prison authorities and the sentence ‑ execution judge was not criminal in nature and that therefore the applicant ’ s subsequent conviction in the criminal proceedings did not contravene the ne bis in idem principle of Article 4 of Protocol No. 7.

39. 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 alleged violations of the Convention

40. The applicant also complained under Article 6 of the Convention that the criminal proceedings had been instituted despite the fact that the injured parties had not lodged a criminal complaint and under Article 13 that he had had no effective remedy.

41. 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 considers that this part of the application does not disclose any appearance of a violation of the Convention. It follows that it is inadmissible under Article 35 § 3(a) as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Søren Nielsen Isabelle Berro-Lefèvre Registrar President