Communicated on 4 July 2018

FIRST SECTION

Application no. 4101/14 Michael LJUBAS against Croatia lodged on 8 January 2014

STATEMENT OF FACTS

The applicant, Mr Michael Ljubas , is a Croatian national who was born in 1968 and lives in Zagreb. He is represented before the Court by Mr M. Ujević , a lawyer practising in Zagreb.

A. The circumstances of the case

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

On 19 August 2004 the applicant was indicted in the Zagreb Municipal Criminal Court ( Op ć inski kazneni sud u Zagrebu ) on charges of misfeasance in business under Article 292 §§ 1(4) and 2 of the 1997 Criminal Code ( Kazneni zakon , Official Gazette nos. 110/1997, 27/1998, 50/2000, 129/2000, 51/2001, 111/2003, 190/2003, 105/2004, 84/2005, 71/2006 and 110/2007). It was alleged that he, as the manger of a company, had failed to declare taxes and the relevant contributions to the pension and health-care funds for the company ’ s employees.

On 18 December 2009 the Zagreb Municipal Criminal Court found the applicant guilty and sentenced him to ten months ’ imprisonment, suspended for three years. It also ordered the confiscation of unlawfully obtained financial gains of 143,595.59 Croatian kunas (HRK) (approximately 19,600 euros (EUR)), which included HRK 7,371 (approximately EUR 1000) for contributions to the pension fund and HRK 6,048 (approximately EUR 820) for contributions to the health-care fund.

The applicant challenged the first-instance judgment by lodging an appeal and alleging numerous substantive and procedural flaws.

On 1 January 2013 the new Criminal Code of 2011 came into force ( Kazneni zakon , Official Gazette no. 125/2011), which abolished the offence of misfeasance in business.

On 21 February 2013 the Å ibenik County Court ( Ž upanijski sud u Å ibeniku ), acting as a court of appeal, upheld the first-instance judgment and sentenced the applicant to nine months ’ imprisonment, suspended for three years. However, it held that given the changes in the Criminal Code, the impugned failure to declare taxes and pay contributions to the pension and health-care funds should be reclassified as the offence of evasion of tax and custom duties under Article 256 § 1 of the 2011 Criminal Code.

The applicant challenged that judgment by lodging a constitutional complaint before the Constitutional Court ( Ustavni sud Republike Hrvatske ), arguing that his conviction for the impugned conduct had no basis in the Criminal Code of 2011 that was applicable to his case. He stressed in particular that the alleged evasion of paying contributions to pension and health-care funds was no longer punishable under the 2011 Code.

On 20 June 2013 the Constitutional Court declared the applicant ’ s constitutional complaint inadmissible as manifestly ill-founded.

The decision of the Constitutional Court was served on the applicant ’ s representative on 9 July 2013.

B. Relevant domestic law

The relevant provision of the 1997 Criminal Code ( Kazneni zakon , Official Gazette nos. 110/1997, 27/1998, 50/2000, 129/2000, 51/2001, 111/2003, 190/2003, 105/2004, 84/2005, 71/2006 and 110/2007) reads as follows:

Article 292

“(1) A responsible person in a legal entity who, with the aim of acquiring illegal financial gain for his or her legal entity or any other legal entity,

...

- in fulfilling obligations towards budgets and funds, withholds funds due to these,

...

shall be punished by imprisonment for between six months and five years.

(2) If by the criminal offence referred to in paragraph 1 of this Article, considerable financial gain is acquired and the perpetrator acted with intent to acquire such gain, he or she shall be punished by imprisonment for between one and eight years. ”

The relevant provision of the 2011 Criminal Code ( Kazneni zakon , Official Gazette no. 125/2011) provides as follows:

Article 134

“Whosoever withholds or limits the rights from pension or health care insurance ..., and if thereby no other criminal offence is committed, shall be punished by imprisonment of up to one year.”

Article 256

“(1) Whosoever, with the aim of he or she or another person evading the payment in full or in part of a tax or customs duty, provides false or incomplete information on income, objects or other facts of relevance for determining the amount of tax or customs duty payable, or whosoever, in the case of mandatory declaration, fails, with the same aim, to declare his or her income, objects or other facts of relevance for the determination of the amount of tax or customs duty payable, which results in a reduction of the amount of tax or customs duty payable by an amount exceeding twenty thousand kunas , or to an inability to determine such a sum by the said amount, shall be punished by imprisonment for between six months to five years.

...”

COMPLAINTS

The applicant complains, under Article 6 § 1 and Article 7 of the Convention, about the manner in which the domestic courts interpreted the succession of proscription related to the evasion of taxes and other public contributions under the old and new Criminal Codes, which led to his punishment under a provision that was not applicable to his case.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention? In particular, are the decisions of the domestic courts sufficiently reasoned with regard to the legal basis for the applicant ’ s conviction?

2. Did the application of the criminal law (Article 256 § 1 of the 2011 Criminal Code) for the applicant ’ s conviction operate to his disadvantage as concerns the basis for the conviction and/or sentencing, within the meaning of Article 7 of the Convention (see, for instance, Maktouf and Damjanović v. Bosnia and Herzegovina [GC], nos. 2312/08 and 34179/08, § 70, ECHR 2013 (extracts))?

The Government are required to provide copies of all relevant documents concerning the applicant ’ s case.