Published on 11 April 2023

SECOND SECTION

Application no. 49358/22 Rene CHELLERI against Croatia and two other applications (see list appended) communicated on 23 March 2023

SUBJECT MATTER OF THE CASES

The three applications are part of a larger group of cases lodged against Croatia by thirteen Slovenian nationals and one company. They originate in a maritime border dispute in the Piran Bay which has been ongoing between Croatia and Slovenia since 1991. In 2009 the two countries signed an arbitration agreement with a view to resolving the border dispute. In the course of the arbitration proceedings, an issue arose on account of unofficial communications between the arbitrator appointed by Slovenia and that State’s Agent before the arbitral tribunal. In 2015 Croatia declared that it was terminating the arbitration agreement on that basis and thereafter ceased to participate in the proceedings. In 2016 the arbitral tribunal ruled that, by engaging in unofficial contact with the arbitrator, Slovenia had acted in breach of the arbitration agreement, but considered that the breach had not affected its ability to make the final award in its new composition. In 2017 it made the arbitration award, establishing the maritime border between the two countries in the Piran Bay by giving Slovenia approximately three ‑ quarters of the Bay, and Croatia one quarter. Slovenia incorporated into its domestic legislation the maritime border as established by the arbitration award, whereas Croatia continues to apply the maritime border as defined in its 2011 Bylaw on borders in Croatian fishing seas, which stipulates that until the end of the process of establishing the border with Slovenia, the maritime border runs through the middle of the Piran Bay.

Following a number of incidents in the disputed waters in the Piran Bay, Slovenia initiated proceedings against Croatia before the European Commission and the Court of Justice of the European Union (“CJEU”). The Commission did not reply, whereas the CJEU held that it lacked jurisdiction to rule on the action, deeming that it was not for it to examine the extent and limits of the territories of Croatia and Slovenia by applying the border determined by the arbitration award in order to verify the existence of the alleged infringements of European Union (“EU”) law. Meanwhile, both countries started instituting minor-offence proceedings against each other’s nationals, in relation to their activities in the disputed area in the Piran Bay.

The three applications brought before the Court concern minor-offence proceedings against the applicants, Slovenian nationals, in which they were found guilty of minor offences under section 43(1)(5) of the Croatian State Border Surveillance Act - entering Croatian territorial sea without complying with the border procedures - and under sections 77(1)(5) and 78(1)(3) of the Croatian Maritime Fishing Act in connection with Article 42 § 1 (a) and Article 3 § 1 (a) and (c) of Council Regulation (EC) no. 1005/2008 and Article 13 of the Council Regulation (EC) no. 1967/2006 (commercial fishing in Croatian territorial sea without a valid fishing privilege issued by Croatia and using trawl nets in a prohibited area). They were ordered to pay fines in various amounts.

The applicants complain under Article 7 of the Convention that it was not foreseeable that the acts they allegedly committed were punishable under Croatian law, given that they did not occur on Croatian territory. Notably, the applicants argue that the maritime border between Croatia and Slovenia was determined by the 2017 arbitration award, which is binding for both countries in accordance with the arbitration agreement concluded in 2009, that the activities for which they were convicted had occurred to the north of that border, that is, in Slovenian territory, and that they could not have been required to know that Croatia would not respect international law, namely the arbitration award.

The first and the second applicants also complain, under Article 7 of the Convention, that the actions for which they were convicted did not constitute minor offences under the Croatian and the EU law. Specifically, the first applicant complains that the domestic courts failed to cite Annex VI point 3.1.2. to the Schengen Borders Code to which section 43(1)(5) of the Croatian State Border Surveillance Act refers, that point 3.1.2 of Annex VI did not apply to fishing boats which did not enter a harbour nor transport passengers, and that in any event not complying with it did not constitute an offence. The second applicant complains that he held permission to fish, issued by Slovenia as the “corresponding coastal state” referred to in section 77(1)(5) of the Croatian Maritime Fishing Act, and that section 78(1)(3) did not prevent fishing in the Piran Bay.

QUESTIONS TO THE PARTIES

1. Were the minor offences for which the applicants were convicted of a criminal character, thus attracting the guarantees of Article 7 of the Convention (see, mutatis mutandis, Pantalon v. Croatia , no. 2953/14, §§ 25 ‑ 33, 19 November 2020)?

2. Did the acts and omissions for which the applicants were convicted constitute minor offences under the Croatian law and, where applicable, the EU law at the time when they were committed, as envisaged by Article 7 of the Convention?

3. Was it foreseeable for the applicants that the acts and omissions for which they were convicted constituted minor offences under Croatian law, having regard to the place where they had occurred (see, mutatis mutandis, Plechkov v. Romania , no. 1660/03, §§ 65 and 67, 16 September 2014, and Yașar v. Romania , no. 64863/13, § 56, 26 November 2019)?

APPENDIX

No.

Application no.

Case name

Lodged on

Applicant Year of Birth Place of Residence Nationality

Represented by

1.

49358/22

Chelleri v. Croatia

15/10/2022

Rene CHELLERI 1993 Izola Slovenian

Ivica SENJAK

2.

49562/22

Radolovič v. Croatia

15/10/2022

Robert RADOLOVIČ 1965 Izola Slovenian

Ivica SENJAK

3.

54489/22

Virant v. Croatia

16/11/2022

Jan VIRANT 1998 Izola Slovenian

Maja MENARD