Legal summary
May 2024
Chelleri and Others v. Croatia (dec.) - 49358/22, 49562/22 and 54489/22
Decision 16.4.2024 [Section II]
Article 7
Article 7-1
Nullum crimen sine lege
Convictions of Slovenian fishermen for minor offences in respect of activities in maritime waters in the area of the Piran Bay claimed by both Croatia and Slovenia: inadmissible
Facts – The three applications originate in a border dispute which has been ongoing between Croatia and Slovenia since 1991 when the two countries declared their independence from Yugoslavia. In the context of bilateral negotiations aiming to establish a common border, the two countries could not agree, inter alia, on their respective maritime border in the Bay of Piran (“the Bay”). Slovenia claimed sovereignty over the entirety of the Bay, its vital interest being having access to the “high seas” of the Adriatic, whereas Croatia’s position was that the delimitation should be made along the equidistance line.
In 2009 the two countries signed an arbitration agreement, following which Slovenia lifted its reservations to Croatia’s accession to the European Union (“EU”). In 2014 the Croatian authorities started warning Slovenian fishermen that they were in the territorial waters of the Republic of Croatia and asking them to leave. In 2015, consequent to unofficial communications during the arbitration proceedings between the arbitrator appointed by Slovenia and that State’s agent before the arbitral tribunal, Croatia declared that it was terminating the agreement on that basis and withdrew from the proceedings. In 2016 the arbitral tribunal ruled that although by engaging in unofficial contact with the arbitrator Slovenia had acted in breach of the arbitration agreement, Croatia was not entitled to terminate it and thus the agreement remained in force.
In 2017 the arbitral tribunal made an arbitration award by which, in so far as relevant for the present case, it delimited the border in the Bay by allocating approximately three‑quarters of the Bay to Slovenia and one quarter to Croatia, the line in between constituting the boundary between the internal waters of the two countries. Outside the closing line of the Bay, it established the course of the boundary between their respective territorial seas and a connection (junction) between the Slovenian territorial sea and an area beyond the territorial seas of Croatia and Italy.
Slovenia fully incorporated into its domestic legislation the maritime border as established in the award. Croatia, on the other hand, considers that the arbitration agreement has been terminated and that the arbitration award has no effect. It continues to apply the Rules on borders in the fishing sea of the Republic of Croatia which stipulate that until the end of the process of establishing the border with Slovenia, the maritime border extends along the equidistance line in the Bay.
In 2020, in proceedings brought by Slovenia against Croatia, the Court of Justice of the European Union 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 the two countries by applying directly the border determined by the arbitration award in order to verify the existence of the alleged infringements of EU law.
Meanwhile, both countries started instituting minor-offence proceedings against each other’s nationals (fishermen) in relation to their activities in the disputed maritime area.
The three applicants, Slovenian fishermen, were found guilty by the Croatian Courts of minor offences with respect to their activities in the maritime waters claimed both by Croatia and Slovenia. They complain under Article 7 of the Convention that their alleged acts and omissions had not constituted minor offences under Croatian law because they had not occurred on Croatian territory.
Law – Article 7:
The minor offences of which the applicants had been found guilty had been of a criminal character, thus attracting the guarantees of Article 7. The Court’s function was to assess whether there had been a sufficiently clear legal basis, having regard to the applicable law at the material time, for the applicants’ convictions and, in particular, whether their convictions could reasonably have been foreseen by them.
It was clear that the applicants’ complaint was based on the premise that the maritime border between Croatia and Slovenia had been determined by the arbitration award and that they were implicitly seeking a finding that Croatia’s failure to comply, in particular with the obligation to observe the border established in that award, constituted a breach of its international law obligations as well as its own Constitution, and, consequently, could not be lawful in the sense of Article 7.
In that regard, the Court reiterated that although the Convention and its Protocols should as far as possible be construed in harmony with the other rules of international law, it did not seek to review compliance with them as such but to examine the case under the Convention or its Protocols.
Croatia fiercely contested the applicability and validity of the arbitration award in question and had withdrawn from the arbitration proceedings. It was not for the Court to rule on the validity of Croatia’s termination of the arbitration agreement, the competence of the arbitral tribunal to make the arbitration award, or the validity and legal effects of that award; those were questions of public international law which did not fall within the Court’s competence.
The Court distinguished the present case from that of Plechkov v. Romania (in which it had found that a Bulgarian national’s conviction for illegal fishing within the Romanian exclusive economic zone in the Black Sea had been based on an unforeseeable application of legislation implementing the United Nations Convention on the Law of the Sea). Unlike that case, first, the extent of the Croatian maritime waters was precisely defined in Croatian law, namely, until the end of the process of establishing the border with Slovenia, the maritime border extended at the equidistance line in the Bay; and second, the Croatian jurisprudence on the matter was abundant and consistent.
Furthermore, it was common knowledge that Croatia did not recognise that the maritime border had been established by the arbitration award and the bilateral border dispute was a serious political one which had been ongoing for more than three decades. The present applications could not therefore be viewed in disregard of that state of the matter, and certainly not as an isolated situation in which a random person engaging in maritime fishing might not have been aware of a border issue between two countries. In fact, since 2014 Slovenian fishermen had since 2014 been routinely warned by the Croatian police that they were entering Croatian waters with their vessels and had been asked to leave.
Moreover, the convictions the applicants complained of had been committed between December 2018 and December 2019 whereas they had received their first penalty notices before the former date. Therefore, it could not be said that their convictions had been unforeseeable to them.
The Court thus considered that the applicants could have reasonably foreseen that their conduct in the disputed waters would have constituted minor offences under the applicable Croatian legislation.
Accordingly, the applications were manifestly ill-founded.
Lastly, the Court emphasised that the above conclusion was without prejudice to any efforts of the two Member States to strive to bring their dispute as to the border matter to an end by using any peaceful means available. In that connection it noted that, independently of the border issue, the two countries were apparently seeking to find an agreement for their respective fishermen to be able to freely navigate and fish in the maritime waters concerned.
Conclusion: inadmissible (manifestly il-founded).
(See also Plechkov v. Romania, 1660/03, 16 September 2014, Legal Summary; United Nations Convention on the Law of the Sea)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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