Information Note on the Court’s case-law 200

October 2016

Žaja v. Croatia - 37462/09

Judgment 4.10.2016 [Section II]

Article 7

Article 7-1

Nulla poena sine lege

Inconsistent interpretation by the domestic courts of ambiguous provision of domestic law: violation

Facts – The applicant, a Croatian national, was convicted of an administrative offence on account of his alleged breach of customs regulations, having brought his car, registered in the Czech Republic, into Croatia. He complained that, as a result of a wrong interpretation of the relevant law, he had been convicted of and fined for a customs-related administrative offence even though he had done nothing illegal.

Law – Article 7: The purported offence was of a criminal character and thus attracted the guarantees of Article 7. While it was primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation, so that the Court’s role was confined to ascertaining whether the effects of such an interpretation were compatible with the Convention, the position was different and the Court’s powers of review greater when it was not the domestic legislation but the Convention itself, in particular Article 7, which expressly referred to the domestic law, in this instance requiring that there should be a legal basis for a conviction and sentence. In such cases, since a failure to comply with the domestic legislation could in itself entail a violation of the Convention, the Court had to have jurisdiction to decide whether the relevant provision of criminal law had been complied with.

In the light of those principles the Court considered that its task was to examine whether the relevant law in the applicant’s case had been foreseeable, that is, whether the applicant’s act, at the time it was committed, constituted an administrative offence defined with sufficient precision by domestic and/or international law. In carrying out that examination the Court had to ascertain whether the applicant could have known from the wording of the relevant provision – if need be, with informed legal advice – what acts or omissions would make him liable for the offence.

The Court noted that the wording of the relevant provision gave rise to uncertainty and ambiguity and the practice of the domestic authorities in interpreting the relevant term was inconsistent at the time the applicant allegedly committed the offence. Inconsistent case-law lacked the required precision to avoid all risk of arbitrariness and enable individuals to foresee the consequences of their actions. No one should be forced to speculate, at peril of conviction, whether his or her conduct is prohibited or be exposed to unduly broad discretion on the part of the authorities, particularly if the uncertainty could have been dispelled by drafting the legislation in more precise terms or through judicial interpretation. As a result of the lack of precision, the applicant had not, even with informed legal advice, been able to distinguish between permissible and prohibited behaviour and was thus unable to foresee, with the degree of certainty required by Article 7 of the Convention, that entering Croatia in his car, while arguably having his habitual residence in the Czech Republic, would constitute an offence. By the same token, the room left to those authorities for the interpretation and application of the relevant law had been too wide to provide effective safeguards against arbitrary prosecution, conviction or punishment.

Conclusion : violation (unanimously).

Article 41: The most appropriate form of redress would, in principle, be the reopening of the proceedings, if requested.

(See also Vasiliauskas v. Lithuania [GC], 35343/05, 20 October 2015, Information Note 189 ; and Kononov v. Latvia [GC], 36376/04, 17 May 2010, Information Note 130 )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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