Communicated on 3 July 2014
FIRST SECTION
Application no. 36077/14
Nino BEVC
against Croatia
lodged on 3 May 2014
STATEMENT OF FACTS
The applicant, Mr Nino Bevc, is a Slovenian national, who was born in 1983 and lives in Poljčane. He is represented before the Court by Mr T. Hotko, a lawyer practising in Zagreb.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant lived in Croatia based on an employment residence permit.
On 17 May 2012 the State Attorney’s Office for the Suppression of Corruption and Organised Crime (Ured za suzbijanje korupcije i organiziranog kriminaliteta; hereinafter: the “State Attorney’s Office”) opened an investigation in respect of the applicant and several other persons on charges of conspiracy in giving loans for a disproportionate benefit under Article 233 § 2 of the Criminal Code (Kazneni zakon, Official Gazette nos. 110/1997, 27/1998, 50/2000, 129/2000, 51/2001, 111/2003, 190/2003, 105/2004, 84/2005, 71/2006, 110/2007, 152/2008, 57/2011 and 143/2012; hereinafter: the “1997 Criminal Code”).
In connection with the investigation, the applicant was arrested and detained on 31 May 2012.
On 1 January 2013 new Criminal Code (Kazneni zakon, Official Gazette nos. 125/2011 and 144/2012; hereinafter: the “2011 Criminal Code”) came into force, which, in Article 242, changed the qualification of the offence of usury activities.
On 22 May 2013 the applicant was released from pre-trial detention.
On the same day, the State Attorney’s Office ordered the preventive measures of seizure of the applicant’s passport and identity card, and ordered him to report regularly to a police officer, on the grounds that there was a reasonable suspicion that the applicant has committed an offence under Article 233 § 2 of the 1997 Criminal Code and that there was a risk that he might flight as he had no permanent connection with Croatia.
The same measure was further extended on 22 July and 20 September 2013.
On an unspecified date the applicant complained to the investigating judge of the Zagreb County Court (Županijski sud u Zagrebu) about the decision of the State Attorney’s Office.
On 24 September 2013 the investigating judge dismissed the applicant’s appeal endorsing the reasoning of the State Attorney’s Office.
On 15 October 2013 the applicant lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) arguing that the criminal offence under Article 233 § 2 of the 1997 Criminal Code was no longer punishable under the 2011 amendments and that therefore his travel documents had been unlawfully seized.
On 7 November 2013 the applicant obtained an expert opinion of a university professor of criminal law, P.N., who considered that the offence for which the applicant was prosecuted was no longer punishable under the 2011 Criminal Code.
On 9 December 2013 the Constitutional Court declared the applicant’s constitutional complaint inadmissible on the grounds that the investigating judge’s decision dismissing the applicant’s appeal against the preventive measures order was not a decision deciding about his rights and obligations or a criminal charge against him. This decision was served on the applicant on 19 December 2013.
On 17 March 2014 the applicant obtained another expert report of a university professor of criminal law, L.C., explaining that the offence under Article 233 § 2 of the Criminal Code was no longer punishable.
B. Relevant domestic law
The relevant provision of the Criminal Code (Kazneni zakon, Official Gazette nos. 110/1997, 27/1998, 50/2000, 129/2000, 51/2001, 111/2003, 190/2003, 105/2004, 84/2005, 71/2006, 110/2007, 152/2008, 57/2011 and 143/2012) reads:
Usury contract
Article 233
“(1) Whoever, by taking advantage of the emergency/distress, difficult financial conditions, insufficient experience, light-mindedness or diminished capability of judgement of another person, receives from such a person, or contracts with such a person, pecuniary gain for himself or for a third person which is obviously disproportionate to the consideration he has given, done or bound himself to give or to do shall be punished by imprisonment between one and three years.
(2) The same punishment as referred to in paragraph 1 of this Article shall be applicable to anybody who engages himself in giving loans, contracting thereby exorbitant pecuniary gain.”
The relevant provision of the Criminal Code (Kazneni zakon, Official Gazette nos. 125/2011 and 144/2012) provides:
Usury contract
Article 242
“(1) Whoever, by taking advantage of the emergency/distress, insufficient experience, diminished capability of judgement or seriously feeble will of another person, receives from such a person, or contracts with such a person, pecuniary gain for himself or for a third person which is obviously disproportionate to the consideration he has given, done or bound himself to give or to do shall be punished by imprisonment between one and three years.
(2) If the perpetrator is engaged in the activities under paragraph 1 of this Article, he or she shall be punished by imprisonment between one and eight years.”
COMPLAINT
The applicant complains, under Article 2 of Protocol No. 4 to the Convention, that he was unlawfully restricted in his freedom of movement and prevented from leaving the territory of Croatia.
QUESTION TO THE PARTIES
Has there been a violation of the applicant’s right to liberty of movement and his freedom to leave the territory of Croatia, contrary to Article 2 of Protocol No. 4?
The Government are requested to submit two copies of the relevant documents in the applicant’s case.
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