Information Note on the Court’s case-law 254
August-September 2021
Galović v. Croatia - 45512/11
Judgment 31.8.2021 [Section I]
Article 4 of Protocol No. 7
Right not to be tried or punished twice
Proceedings and penalties forming part of a coherent and proportionate whole to punish individual acts and patterns of domestic violence: no violation
Facts – The applicant was found guilty of a series of minor offences of domestic violence under the Protection against Domestic Violence Act against his wife and children over the course of a number of years, and, in particular, for two incidents occurring in January 2008 and on 3 November 2008. He was subsequently also convicted for several counts of domestic violence, as defined in the Criminal Code, for events taking place between February 2005 and 3 November 2008. He appealed unsuccessfully.
Law – Article 4 of Protocol No. 7: All of the proceedings concerned had been criminal in nature. The Court also accepted that the facts in the subsequent criminal proceedings had in part been identical to the facts in the two sets of minor-offence proceedings complained of. The domestic courts had sought to show that the applicant’s conduct, which had been sanctioned on a number of occasions in minor-offence proceedings, had eventually reached the threshold of seriousness so as to be considered and punished under criminal law: the facts for which the applicant had already been convicted had formed an integral part of those subsequent proceedings on indictment. The Court therefore had to examine whether there had been a duplication (bis) of the proceedings.
The purpose of the minor-offence proceedings had been to provide a prompt reaction to a particular incident of domestic violence that in itself had not amounted to any criminal offence under the Criminal Code in order to timely and effectively prevent further escalation of violence within the family and to protect the victim. That is what had been done in the applicant’s case on a number of separate occasions. Once the applicant’s unlawful behaviour had reached a certain level of severity, the proceedings on indictment had been initiated against him, aimed at addressing an ongoing situation of violence in a comprehensive manner. The individual incidents sanctioned in two sets of minor-offence proceedings complained of, taken together with other incidents, had demonstrated a pattern of behaviour and contributed to the assessment of the seriousness of the applicant’s criminal conduct and only in their entirety had they reflected the cumulative impact on his victims. In those circumstances the Court had no cause to call into question the reasons for such partial duplication of the proceedings.
As regards the question of whether duality of the proceedings had been foreseeable for the applicant, having behaved violently towards close family members on a number of occasions, the applicant should have been aware that his conduct could have entailed consequences such as the institution of minor-offence proceedings for a particular individual incident under the Protection against Domestic Violence Act and criminal proceedings for continuous and repeated behaviour of domestic violence criminalised under the Criminal Code.
As to the manner of conducting the proceedings, the criminal court had taken note of all the previous minor-offence judgments against the applicant and had used certain documentary evidence from those proceedings. The fact that the criminal court decided again to hear certain witnesses at the trial might be regarded as an inherent feature of proceedings on indictment and a requirement safeguarding the rights of the accused under Article 6. The interaction and coordination between the two courts had therefore been adequate and that the two sets of proceedings had formed a coherent whole. Consequently, the applicant had not suffered a disadvantage associated with the duplication of proceedings, beyond what had been strictly necessary.
As regards the sanctions imposed, each of the applicant’s minor-offence convictions had taken into account the penalty imposed on him in the previous minor-offence proceedings. Subsequently, the criminal court had expressly acknowledged that the applicant had already been punished in five sets of minor offence proceedings. It had also deducted from his sentence the period which the applicant had spent in detention on the basis of the two minor offence convictions complained of. Consequently, the domestic courts had applied the principle of deduction and ensured that the overall amount of penalties imposed on the applicant had been proportionate to the seriousness of the offence concerned. It could not therefore be said that the applicant had been made to bear an excessive burden.
Finally, turning to the connection in time between the various sets of proceedings, the Court noted that the time element in the specific context of domestic violence bearing in mind its specific dynamics took on a particular meaning. What was important was for the domestic criminal-law system to effectively deal with instances of domestic violence, individually and in their aggregate, by producing adequate deterrent effects capable of ensuring the effective prevention of unlawful acts. The authorities had intervened, when informed, each time there had been an isolated incident of domestic violence in the family in order to provide immediate relief to its victims. After a number of incidents occurring relatively close together in time (over a period of some three years) had reached a certain degree of severity and “culminated” in the event of 3 November 2008, the authorities had initiated the last set of minor-offence proceedings, and, about a month thereafter, the proceedings on indictment for the continuous offence of domestic violence under the Criminal Code. In fact, the criminal investigation had started in December 2009 after the domestic court had found the applicant guilty of domestic violence in respect of the last incident and he had been indicted in January 2009, two days before the judgment in the minor offence proceedings had become final. Any disadvantage that might have ensued for the applicant from conducting those two proceedings in parallel for such a short period of time had thus been negligible. The criminal proceedings thereafter had continued for eight months at first instance and another two and half years on appeal and before the Constitutional Court. Thus, the various proceedings had been sufficiently connected in time so that the subsequent institution of criminal proceedings could not be seen as abusive.
Overall, the proceedings and penalties had formed a coherent and proportionate whole which had enabled punishing both the individual acts committed by the applicant and his pattern of behaviour in an effective, proportionate and dissuasive manner.
Conclusion: no violation (unanimously).
The Court also found that there had been no violation of Article 6 §§ 1 and 3 (b) and (c) as regards the brevity of the period during which the applicant had had to prepare his defence before the appeal court session; and a violation of Article 6 §§ 1 and 3 (c) as regards the applicant’s absence from the appeal court session.
Article 41: EUR 1,500 in respect of non-pecuniary damage; claim for pecuniary damage dismissed.
(See also A and B v. Norway [GC], 24130/11 and 29758/11, 15 November 2016, Legal Summary)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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