FIRST SECTION

DECISION

Application no. 34210/14 Marko PAVIĆ against Croatia

The European Court of Human Rights (First Section), sitting on 18 May 2021 as a Committee composed of:

Alena Poláčková , President, Péter Paczolay , Gilberto Felici, judge s, and Liv Tigerstedt, Deputy Section Registrar ,

Having regard to the above application lodged on 28 April 2014,

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 Marko Pavić , is a Croatian national, who was born in 1981 and lives in Zadar. He was represented before the Court by Mrs V. Drenški Lasan , a lawyer practising in Zagreb.

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

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

4 . At the request of the Zagreb State Attorney ’ s Office ( Op ć insko dr ž avno odvjetni š tvo u Zagrebu ), on 2 February 2008 the Zagreb County Court ( Ž upanijski sud u Zagrebu ) ordered the search of the applicant ’ s home and car. The search warrant was issued in relation to a criminal investigation in respect of a group of persons, including the applicant, for illegal drug trafficking, a criminal offence provided for in Article 173 § 2 of the Criminal Code (see paragraph 17 below).

5 . On the same day, the applicant ’ s flat and car were searched and certain amounts of cocaine were found and seized.

6 . Following a request to prosecute ( optužni prijedlog ) filed by the Zagreb Police Department ( Policijska uprava Zagreba č ka ) of 2 February 2008 for a minor offence under section 3(1) of the Prevention of Narcotics Abuse Act and the applicant ’ s confession, on 3 February 2008 the Zagreb Minor Offences Court ( Prekr š ajni sud u Zagrebu ) found the applicant guilty of the minor offence of possession of narcotic drugs without permission by a competent authority. He was fined 5,000 Croatian kunas (HRK).

7 . On 14 October 2009 the High Minor Offences Court ( Visoki prekr Å¡ ajni sud ) upheld the judgment given at first instance.

8 . Meanwhile, on 29 February 2008 the Zagreb County Court ( Županijski sud u Zagrebu ) opened an investigation in respect of the applicant and four other persons who were suspected of possessing narcotic drugs with the intent of illegally trafficking and putting drugs into circulation, thereby committing the criminal offence of illegal drug trafficking under Article 173 §§ 1 and 2 of the Criminal Code.

9 . On 5 June 2008 the applicant was indicted, together with a certain D.M., for possession and unauthorised sale of narcotic drugs, thereby committing a criminal offence under Article 173 § 2 of the Criminal Code.

10 . During the proceedings, the applicant pleaded not guilty and stated that he would present his defence at the end of the proceedings.

11 . At a hearing held on 27 December 2010, the applicant presented his defense . He stated that he had confessed to the possession of drugs in the minor-offence proceedings at the suggestion of a police officer and with a view to avoiding criminal prosecution. He stated that he had been aware that D.M. was producing something in his flat and that he had not wanted anything to do with it. He argued that he had not sold the drugs, but instead had sold the remainder of a pack of Viagra which he had obtained from D.M. During the presentation of evidence, the judgment of the Zagreb Minor Offences Court of 3 February 2008 and the ruling of the High Minor Offences Court of 14 October 2009 were also read out. The applicant also put forward a ne bis in idem argument in his closing argument given on 21 January 2011.

12 . On 25 January 2011 the Zagreb County Court found the applicant guilty as charged under Article 173 § 2 of the Criminal Code and sentenced him to three years and seven months ’ imprisonment. The relevant parts of that court ’ s judgment read as follows.

“The [applicant] is found guilty of ... organizing drug trafficking in Zagreb in January and February 2008, jointly and according to a prior agreement with D.M. on the joint trafficking of the narcotic drug cocaine on the illegal drug market, contrary to section 3 of the Prevention of Narcotics Abuse Act ..., by procuring large quantities of cocaine, which D.M. mixed with a ‘ mannitol ’ filler in the [applicant ’ s] flat ..., which drugs they then sold on the Zagreb drug market, and thus:

a) on 11 January 2008 ... in front of a petrol station ... D.M. sold an unspecified amount of cocaine to ...;

b) on 24 January 2008 ... at a car park ... D.M. sold at least 7 grams of ... cocaine to ...;

c) on 2 February 2008 the [applicant] in his flat ... had ready for sale three plastic packs of cocaine, weighing 0.67, 0.68, 0.66 and 0.75 grams, ...

whereby the [applicant] illegally trafficked, and possessed with the intent of trafficking, substances declared to be narcotic drugs by law ...

... The fact that the [applicant] was convicted by a final judgment in the course of minor-offence proceedings for possession of narcotic drugs which are the subject of the present proceedings does not constitute legal grounds on which the court in these proceedings, with regard to point 1.c), has to render a judgment dismissing the charge because the matter has already been adjudicated. Specifically, in the present proceedings, the scope of the charges against the [applicant] is broader than the scope of the charges in the minor-offence proceedings – that is to say, in the present proceedings he has been charged with possessing the narcotic drugs in question with the intent of trafficking.”

13 . Following an appeal by the applicant, on 4 May 2011 the Supreme Court ( Vrhovni sud Republike Hrvatske ) upheld the judgment given at first instance. With regard to the complaint alleging a violation of the ne bis in idem principle, the Supreme Court held as follows.

“The first-instance court was correct in not accepting that the present case concerned an adjudicated matter since the comparison of the factual descriptions of the minor offence of which [the applicant] was found guilty by the judgment of the Zagreb Minor Offences Court ... and the factual description of the criminal offence of which he was found guilty by the impugned judgment leads to the conclusion that they do not concern charges with identical factual descriptions.

Specifically, by the impugned judgment, the [applicant] was found guilty of organising drug trafficking, jointly and according to a prior agreement with D.M. on the joint trafficking of cocaine, by procuring large quantities of cocaine, mixing it with a ‘ mannitol ’ filler in the [applicant ’ s] flat, and then selling it on the Zagreb drug market, and on two occasions D.M. sold cocaine to Ž. , while four more PVC packs of cocaine, weighing 0.679, 0.689, 0.669 and 0.759 grams, were found in the applicant ’ s flat, which packs he kept with the intent of trafficking.

The judgment in the minor-offence proceedings found the [applicant] guilty of possessing four packs of cocaine, weighing 0.7, 0.8, 0.8 and 0.8 grams, found in the flat, and 0.1 grams of cocaine found in the [applicant ’ s] car, which drugs were confiscated on 2 February 2008.

Thus, apart from the fact that almost identical quantities of drugs were confiscated from the [applicant], all the other facts which amounted to constituent elements of the criminal offence of which the accused was found guilty by the impugned judgment were new and gave rise to charges of a greater scope than the offences of which he had been convicted in the minor-offence proceedings.”

14 . On 29 June 2011 the applicant lodged a constitutional complaint, alleging a violation of Article 4 of Protocol No. 7 to the Convention and of the right to a fair trial under Article 29 § 1 of the Constitution.

15 . On 24 October 2013 the Constitutional Court ( Ustavni sud Republike Hrvatske ) dismissed the applicant ’ s constitutional complaint. Comparing the operative parts of the Zagreb Minor Offences Court ’ s judgment of 3 February 2008 and the Zagreb County Court ’ s judgment of 25 January 2011, the Constitutional Court found that the offences with which the applicant had been charged in the minor-offence proceedings and the criminal proceedings were not factually identical. The Constitutional Court ’ s decision was served on the applicant on 14 November 2013.

16 . The relevant parts of the Prevention of Narcotics Abuse Act ( Zakon o suzbijanju zloupotrebe opojnih droga , Official Gazette no. 107/2001 with subsequent amendments), as in force at the material time, read as follows:

Section 3

“(1) The growing of plants from which narcotics may be produced and the production, possession and trafficking in narcotics, plants and parts of the plants from which narcotics may be produced is banned, as is the production, possession and trafficking in substances which may be used for the production of narcotics, save for [such possession, production and trafficking] under the conditions prescribed by this Act for medical, nutritional, veterinarian or educational purposes or for the purposes of scientific research.

...”

Section 54

“(1 ) A legal entity shall be fined between HRK 20,000 and HRK 50,000 for the minor offences of:

1. possession of narcotics ...

...

(3) For the minor offence under subsection (1) point 1 ... of this section, a person shall be fined between HRK 5,000 and HRK 20,000.”

17 . The relevant parts of the Criminal Code ( Kazneni zakon , Official Gazette no. 110/1997 with subsequent amendments), as in force at the material time, read as follows:

Article 63

“...

(2) A prison sentence, a fine or a fine imposed in minor-offence proceedings shall count towards the penalty for a criminal offence if the description of that criminal offence corresponds to the minor offence for which the penalty has been imposed.”

Article 173

“(1 ) Whoever unlawfully possesses substances which are classified as narcotics shall be fined or sentenced to a term of imprisonment not exceeding one year.

(2) Whoever, without authorization, manufactures, processes, sells or offers for sale or buys for the purpose of reselling, keeps, distributes or brokers the sale and purchase of, or in some other way and without authorization puts into circulation, substances or preparations declared to be narcotic drugs by law shall be punished by imprisonment for a minimum of three years.

...”

COMPLAINT

18 . The applicant complained that he had been tried and punished twice for the same offence, in breach of Article 4 of Protocol No. 7 to the Convention.

THE LAW

19 . The applicant relied Article 4 of Protocol No. 7 to the Convention, which reads as follows:

“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.

2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.

3. No derogation from this Article shall be made under Article 15 of the Convention.”

20 . The Government maintained that the two sets of proceedings had not concerned the same facts. The applicant had been convicted and punished in the minor-offence proceedings for possessing cocaine on a particular day in his car and in his flat. In contrast, in the criminal proceedings he had been convicted owing to the fact that, jointly and according to a prior agreement with D.M., during January and February 2008 – in other words, over a longer period of time than that in the minor-offence proceedings – he had organised the procurement and sale of cocaine on the illegal drug market, in connection with which he had been found on 2 February 2008 to be in possession of four packs of cocaine in his flat, ready to be sold on.

21 . Thus, apart from the fact that the drugs had been found by searching the applicant ’ s flat, all the other facts in the factual description of the criminal offence had been new, and taken together had constituted a criminal offence distinct from that of which the applicant had been convicted in the minor-offence proceedings. It clearly followed that the factual substance of the criminal proceedings had been more complex and had entailed charges of a far greater scope, thus distinguishing the present case from that of Tomasović v. Croatia (no. 53785/09, 18 October 2011).

22 . The Government further pointed out that the description of the two punishable offences alone had shown that their constituent elements had been different; section 3(1) of the Prevention of Narcotics Abuse Act referred to possession of drugs as punishable conduct, whereas Article 173 § 2 of the Criminal Code specified the element of possession with the intent of trafficking as an essential element for the criminal offence of illegal drug trafficking. In other words, the purpose and intent of possession in the criminal offence were not the same and had not even been considered or punished in the minor-offence proceedings in the applicant ’ s case. Moreover, in the minor-offence proceedings the applicant had been given the minimum prescribed fine, which, by its lack of severity, had not, and could not have covered possession of drugs with the intent of trafficking. Lastly, the applicant ’ s ne bis in idem complaint had been examined and rejected at all levels of jurisdiction during the criminal proceedings precisely on the basis of the factual description of the offences.

23 . Should the Court nevertheless find that the idem element was present, the Government maintained that there had been no duplication of the trial because the two proceedings had been sufficiently connected in substance and in time so as to form a coherent whole.

24 . The applicant maintained that his convictions in minor-offence and criminal proceedings had both been based on the same facts, with only a negligible difference in the amounts of drugs established to have been found. There had also been a duplication of proceedings, since in both the minor-offence and the criminal proceedings he had been tried and punished twice for facts which were substantially the same.

25 . In the applicant ’ s view, both sets of proceedings had pursued the same purpose and had addressed the same aspect of unlawful conduct. In view of the existing legal provisions, the consequences had not been foreseeable to him. T here had been duplication in the collecting of evidence, given that the criminal investigation had been conducted independently of the findings of the minor-offence court.

26 . The applicant had been made to bear an excessive burden because the sanction imposed on him in the minor-offence proceedings had not been taken into account in the criminal proceedings. Lastly, the two sets of proceedings had not been sufficiently connected in time since the criminal proceedings had lasted for another two years after the completion of the minor-offence proceedings.

27 . Article 4 of Protocol No. 7 to the Convention is understood as prohibiting the prosecution or trial of a second “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; Marguš v. Croatia [GC] , no. 4455/10, § 114, ECHR 2014; and A and B v. Norway [GC], nos. 24130/11 and 29758/11, § 108, 15 November 2016).

28 . In cases raising an issue under Article 4 of Protocol No. 7, it should be determined whether the specific national measure complained of entails, in substance or in effect, double jeopardy to the detriment of the individual or whether, in contrast, it is the product of an integrated system enabling different aspects of the wrongdoing to be addressed in a foreseeable and proportionate manner forming a coherent whole, so that the individual concerned is not thereby subjected to injustice (see A and B v. Norway , cited above , § 122) . The object of Article 4 of Protocol No. 7 is to prevent the injustice of a person ’ s being prosecuted or punished twice for the same criminalised conduct. It does not, however, outlaw legal systems which take an “integrated” approach to the social wrongdoing in question, in particular an approach involving parallel stages of legal response to the wrongdoing by different authorities and for different purposes (ibid., § 123).

29 . At the outset, the Court is satisfied that both sets of proceedings complained of were “criminal” in nature for the purposes of Article 4 of Protocol No. 7 (see Tomasović , cited above, § 25).

30 . The notion of the “same offence” – the idem element of the ne bis in idem principle in Article 4 of Protocol No. 7 – was clarified in Sergey Zolotukhin (cited above, §§ 78-84). Following the approach adopted in that judgment, it is clear that the determination as to whether the offences in question were the same ( idem ) depends on a facts-based assessment (ibid., § 84), rather than, for example, a formal assessment consisting in comparing the “essential elements” of the offences. The prohibition in Article 4 of Protocol No. 7 to the Convention concerns the prosecution or trial of a second “offence” in so far as the latter arises from identical facts or facts which are substantially the same (ibid., § 82). In the Court ’ s view, statements of fact concerning both the offence for which the applicant has already been tried and the offence of which he or she stands accused are an appropriate starting-point for its determination of the issue whether the facts in both proceedings were identical or substantially the same (see, in this connection, Sergey Zolotukhin , cited above, § 83). The Court ’ s inquiry should therefore focus on those facts which constitute a set of concrete factual circumstances involving the same defendant and inextricably linked together in time and space, the existence of which must be demonstrated in order to secure a conviction or institute criminal proceedings (ibid., § 84).

31 . In the present case, the applicant was first found guilty of the minor offence of possession of drugs under section 3(1) of the Prevention of Narcotics Abuse Act for the narcotic drug cocaine, which was found during the search of his flat and car on 2 February 2008 (see paragraph 6 above). In subsequent criminal proceedings on indictment, the applicant was charged with and ultimately convicted of the criminal offence of illegal drug trafficking under Article 173 § 2 of the Criminal Code in that he, jointly with another person, in January and February 2008 illegally trafficked substances declared to be narcotic drugs by law (see paragraph 13 above).

32 . The Court notes that in Tomasović (cited above, §§ 27-28), it had found a violation of Article 4 of Protocol No. 7 where the applicant had been convicted in both criminal and minor-offence proceedings for one instance of being in possession of narcotic drugs. In contrast, while the minor-offence proceedings in the present case related to one instance dated 2 February 2008, when the applicant was found in possession of certain amounts of cocaine in his flat, the subsequent proceedings on indictment related to a number of facts – in particular acting jointly and in a prior agreement with another person over a longer period of time (January and February 2008) and with the intention of selling narcotic drugs on the illegal market (see paragraph 13 above) – which were not covered by the applicant ’ s conviction in the minor-offence proceedings (compare Hauser ‑ Sporn v. Austria , no. 37301/03, § 43, 7 December 2006).

33 . Consequently, the charges in the criminal proceedings cannot be said to have been based on “substantially the same facts” as those for which the applicant had already been punished in the minor-offence proceedings, as they did not concern the same behaviour or the same time frame (see Ramda v. France , no. 78477/11, § 87, 19 December 2017).

34 . Accordingly, this complaint 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 10 June 2021 .

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Liv Tigerstedt Alena Poláčková Deputy Registrar President