Communicated on 8 September 2014
FIRST SECTION
Application no. 52204/14
Braco BEGOVIĆ
against Croatia
lodged on 11 July 2014
STATEMENT OF FACTS
The applicant, Mr Braco Begović, is a Croatian national, who was born in 1951 and lives in Zagreb. He is represented before the Court by Mr D. Krtić, a lawyer practising in Osijek.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 12 November 1996 the applicant was indicted in the Pula County Court (Županijski sud u Puli) on charges of abuse of power and authority under Article 215 §§ 1, 3 and 5 of the Criminal Code (Krivični zakon Republike Hrvatske; Official Gazette nos. 50/1978, 25/1984, 52/1987, 43/1989, 8/1990, 9/1991, 33/1992, 39/1992, 77/1992, 91/1992, 32/1993 and 38/1993; hereinafter: the “1993 Criminal Code”) alleging that in the period between 15 April 1994 and 18 May 1995, as director of a company in Croatia, he had uttered false invoices and thereby caused damage to the Ministry of Defence.
On 27 May 2009 the applicant was found guilty as charged under Article 337 §§ 1, 3 and 4 of the Criminal Code (Kazneni zakon, Official Gazette no. 110/1997; hereinafter: the “1997 Criminal Code”), which came into force on 1 January 1998, repealing the 1993 Criminal Code.
The applicant and the competent State Attorney’s Office appealed this judgment before the Supreme Court (Vrhovni sud Republike Hrvatske).
On 6 December 2013 the Supreme Court upheld the first-instance judgment re-qualifying the applicant’s conviction as abuse of trust in business activity under Article 246 of the Criminal Code (Kazneni zakon, Official Gazette nos. 125/2011 and 144/2012; hereinafter: the “2011 Criminal Code”), which came into force on 1 January 2013. As to the continuity between the legal qualifications under Article 215 of the 1993 Criminal Code and Article 246 of the 2011 Criminal Code, the Supreme Court noted:
“Since the new Criminal Code (Official Gazette nos. 125/2011 and 144/2012) came into force on 2 January 2013, this court, under Article 3 of the 2011 Criminal Code, found the legal continuity and qualified the facts from the operative part of the [first-instance] judgment as the offence under Article 246 § 2 of the 2011 Criminal Code.”
Against this judgment the applicant lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) complaining, inter alia, about the foreseeability of the application of the 2011 Criminal Code in his case.
On 8 May 2014 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded on the grounds that the Supreme Court provided sufficient reasons for its decision.
The decision of the Constitutional Court was served on the applicant’s representative on 26 May 2014.
B. Relevant domestic law
The relevant provision of the Criminal Code (Krivični zakon Republike Hrvatske; Official Gazette nos. 50/1978, 25/1984, 52/1987, 43/1989, 8/1990, 9/1991, 33/1992, 39/1992, 77/1992, 91/1992, 32/1993 and 38/1993) reads as follows:
Abuse of power and authority
Article 215
“(1) An official or person in a position of authority who, in order to acquire for himself or another any non-pecuniary gain, or who, in order to cause damage to another, uses his position of power, oversteps his authority or fails in his duty, shall be punished by a term of imprisonment up to three years.
...
(3) If a pecuniary gain is acquired as a result of the criminal offence referred to in paragraph 1 of this Article, and it does not constitute some other offence, the perpetrator shall be punished by a term of imprisonment from six months to five years.
(4) If a considerable pecuniary gain is acquired as a result of the criminal offence referred to in paragraph 1 of this Article and the perpetrator acted with intent to acquire such gain, or if [the offence] resulted in large-scale damage, he or she shall be punished by a term of imprisonment of one to ten years.”
The relevant provision of the Criminal Code (Kazneni zakon, Official Gazette nos. 125/2011 and 144/2012; hereinafter: the “2011 Criminal Code”) provides:
Abuse of trust in business activity
Article 246
“(1) Whoever in business activity breaches the duty to protect property interests of another established by law, administrative or judicial decision, contract or trust, and thereby acquires for himself or another unlawful pecuniary gain, or thereby, or by some other means, causes damage to another whose property interests was required to ensure, shall be punished by imprisonment between six months and five years.
(2) If a considerable pecuniary gain is acquired as a result of the criminal offence referred to in paragraph 1 of this Article or a considerable damage is caused, the perpetrator shall be punished by imprisonment between one and ten years.”
COMPLAINT
The applicant complains that it was not sufficiently foreseeable and clear from the decisions of the domestic courts that the acts for which he had been charged with constituted offence under the provision of national law, which was retrospectively applied to his conviction.
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, were the decisions of the domestic courts sufficiently reasoned as regards the application of the relevant provisions of criminal law to the applicant’s conviction?
2. Was the application of the relevant provision of national criminal law to the applicant’s conviction sufficiently foreseeable, as required by Article 7 of the Convention?
The Government are requested to submit two copies of the relevant documents in the applicant’s case.
Full & Egal Universal Law Academy