Published on 15 May 2023

FOURTH SECTION

Application no. 18415/20 Božidar MINIĆ against Serbia lodged on 7 April 2020 communicated on 29 April 2023

SUBJECT MATTER OF THE CASE

The application concerns the applicant’s conviction for the criminal offence of “abuse of position” ( zloupotreba položaja odgovornog lica ) even though this particular crime was only introduced into the Serbian Criminal Code several years after the date of the commission of the alleged crime. At that time, however, there was another criminal offence, “abuse of office” ( zloupotreba službenog položaja ), which the national courts deemed to contain the same elements of criminal conduct.

The applicant complains under Article 6 § 1 of the Convention that the relevant judgments of the criminal courts in his case lacked proper reasoning. Furthermore, according to the applicant, they were also flagrantly inconsistent with the same courts’ acquittal of other specified defendants in “practically identical circumstances”, and thus created a situation of profound legal uncertainty. Lastly, the applicant complains under Article 7 of the Convention that he was convicted for acts which did not constitute a criminal offence under domestic law at the time of their commission.

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?

(a) In particular, in view of the reasons given by Pirot High Court and the Niš Court of Appeals, in their judgments of 4 April 2016 and 7 November 2016 respectively, were the provisions of Article 6 respected in his case (see, for example, Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 84, 11 July 2017, with further references)?

(b) Furthermore, having regard to the applicant’s allegation that the same Niš Court of Appeal, unlike in his case, acquitted other specified defendants of the same criminal offence in practically identical circumstances, but based on a divergent interpretation of the relevant domestic law, was the principle of legal certainty contained in Article 6 complied with by the national judiciary (see, for example and mutatis mutandis , Stoilkovska v. the former Yugoslav Republic of Macedonia , no. 29784/07, §§ 37 and 47-49, 18 July 2013)?

2. Did the acts of which the applicant was convicted constitute a criminal offence under national law at the time when they were committed, as envisaged by Article 7 of the Convention (see, for example, Maktouf and Damjanović v. Bosnia and Herzegovina [GC], nos. 2312/08 and 34179/08, § 66, ECHR 2013 (extracts), with further references)?