Published on 2 October 2023

SECOND SECTION

Application no. 29002/22 Tomislav BARAĆ against Croatia lodged on 6 June 2022 communicated on 12 September 2023

SUBJECT MATTER OF THE CASE

The application concerns reclassification of a criminal charge and its consequences for the applicant’s defence rights. It also concerns the applicant’s conviction for acts which, in his view, were not unlawful under domestic law.

In particular, the applicant complains under Article 6 § 1 and § 3 (a) and (b) of the Convention that he was indicted, inter alia , on three counts of the criminal offence of abuse of powers in business operations and convicted for that offence by the first-instance court. However, on appeal, the Supreme Court, applying the more lenient law, reclassified the offence as the offence of tax evasion and, without giving the applicant an opportunity to defend himself against that new legal classification of the offence, convicted him on three counts of tax evasion.

Beside those offences the applicant was also convicted on three counts of the criminal offence of abuse of trust in business operations based on three allegedly unjustified money withdrawals from the bank accounts of companies of which he was the director and the sole shareholder.

The applicant complains under Article 7 of the Convention that those acts were not criminal offences because withdrawing money from accounts of one’s own company cannot be considered illegal. Moreover, there was no injured party as the “victims” of those offences could have only been the companies of which the applicant was the sole shareholder.

Furthermore, the relevant provision of the Penal Code defining the criminal offence of abuse of trust in business operations was a referencing (blanket) provision referring to the relevant rules of company law. However, the only provision of the Commercial Companies Act to which the criminal courts referred was a general provision according to which a director of such a company must act as a prudent businessman in handling the company’s assets. The applicant therefore complains that either the domestic courts’ decisions were not sufficiently reasoned, contrary to Article 6 § 1 of the Convention, or his conviction for three criminal offences of abuse of trust in business operations was not sufficiently precise and foreseeable, contrary to Article 7 of the Convention.

QUESTIONS TO THE PARTIES

1. Was the applicant informed of the nature of the accusation against him, and was he afforded adequate time and facilities to prepare his defence, as required by Article 6 § 1 and § 3 (a) and (b) of the Convention, given that the Supreme Court on appeal reclassified the offence he had initially been charged with (see Pélissier and Sassi v. France [GC], no. 25444/94, §§ 51-63, ECHR 1999-II; Mattoccia v. Italy , no. 23969/94, §§ 58-72, ECHR 2000-IX; and Varela Geis v. Spain , no. 61005/09, §§ 40-55, 5 March 2013)?

2. Did the applicant have a fair hearing in the criminal proceedings complained of, as required by Article 6 § 1 of the Convention? In particular, did the domestic courts in convicting the applicant for the criminal offences of abuse of trust in business operations on account of money withdrawals from the bank accounts of companies of which he was the director and the sole shareholder, give sufficient reasons as to why those withdrawals were unlawful, as required by Article 6 § 1 of the Convention (see Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 84, 11 July 2017)?

3. Was the applicant’s conviction for the criminal offences of abuse of trust in business operations based on acts which did not constitute an offence under the relevant domestic law, contrary to Article 7 of the Convention (see Pantalon v. Croatia , no. 2953/14, §§ 45-54, 19 November 2020)? In particular, were the three money withdrawals from the bank accounts of companies of which the applicant was the director and the sole shareholder unlawful under domestic law and, if so, under which provisions?