IGNJATIĆ v. CROATIA

FIRST SECTION

DECISION

Application no. 53195/16
Milovan IGNJATIĆ
against Croatia

The European Court of Human Rights (First Section), sitting on 21 September 2021 as a Committee composed of:

 Krzysztof Wojtyczek, President,
 Erik Wennerström,
 Ioannis Ktistakis, judges,
and Attila Teplán, Acting Deputy Section Registrar,

Having regard to the above application lodged on 5 September 2016,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1.  The applicant, Mr Milovan Ignjatić, is a Croatian national, who was born in 1962 and lives in Rijeka. He was represented before the Court by Mr I. Smokrović, a lawyer practising in Rijeka.

2.  The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.The circumstances of the case

3.  The facts of the case, as submitted by the parties, may be summarised as follows.

4.  On 7 February 2008 a fire broke out on a fishing boat in the Cres shipyard as a result of overheating due to machine cutting and welding performed by the applicant. The fire was localised and extinguished by the fire brigade.Minor-offence proceedings

5.  On 3 November 2008 the police lodged a motion with the Mali Lošinj Minor Offences Court (Prekršajni sud u Malom Lošinju) to indict the applicant for failing to seek approval from the employee responsible for fire protection, to undertake fire protection measures and to determine whether the possibility of causing fire to adjacent areas had been eliminated. Consequently, the applicant was charged with a minor offence referred to in section 2(3) of the Fire Protection Act, punishable under section 49(3) of the same Act.

6.  On 20 April 2009 the Mali Lošinj Minor Offences Court acquitted the applicant finding that he had been carrying out the welding works as an employee of a company and could therefore not be held solely responsible for the omissions of that legal entity.

7.  The parties did not appeal that judgment, which thus became final on 1 November 2009.Criminal proceedings

8.  Meanwhile, on 8 May 2008 the Rijeka Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Rijeci) lodged a motion to indict the applicant under Article 263 §§ 2 and 4 of the Criminal Code for endangering lives and property through dangerous action. The motion stated that on 7 February 2008 at the Cres shipyard, in the capacity of a responsible person, the applicant had not acted according to occupational health and safety rules, in particular by failing to request approval for welding works from the employee responsible for fire protection and to prepare the place of work in accordance with the prescribed technical standards.

9.  Following a remittal of the case, the applicant complained that he had already been finally acquitted for the same offence in the minor-offence proceedings. At the request of the Rijeka Municipal Court, the Mali Lošinj Minor Offences Court’s case file was obtained and submitted into the criminal case file.

10.  On 22 September 2011 the Rijeka Municipal Court found the applicant guilty of a criminal offence against public safety of persons and property, described in Article 271 § 3 in conjunction with Article 263 §§ 2 and 4 of the Criminal Code. The court sentenced the applicant to eleven months in prison, suspended for a period of four years. The relevant part of the first-instance judgment reads as follows:

“...on 7 February 2008, ... at Cres shipyard, as an employee and authorised manager of... a company which assumed a contractual obligation towards ... [a] fishing trade, contrary to section 55 of the Occupational Health and Safety Act, [the applicant] failed to ensure that works were performed in accordance with the occupational health and safety rules, whereby he started, with the help of employees, to perform cutting works on the metal sheet at the outer bow section of the boat without previously, in accordance with sections 2, 7 and 8 of the Ordinance on Fire Protection Measures, ... lodging a request for approval for welding works from the employee responsible for fire protection or the authorised persons at the shipyard, and failing to prepare the place of work in accordance with the prescribed technical standards, whereby the cutting of the metal led to a fire after two wooden laminate plates in the boat’s sleeping cabin caught fire, which eventually led to the burning down of six beddings, the entire electrical installation, the hydraulics box and part of the sonar equipment with the total value of HRK 369,062.56.”

The first-instance court dismissed the applincat’s complaint that the matter was finally adjudicated as follows:

“...although the event, the defendant and the injured person are the same, these are two completely different punishable acts: a minor offence and a criminal offence that significantly differ in their structure, the object of protection and the amount of punishable wrongdoing. In the minor-offence proceedings, the applicant was [accused] under the Occupational Health and Safety Act, which did not include the objective element of guilt. Therefore, these proceedings do not refer to the same offence, but to a single event that led to a minor offence and criminal responsibility.”

11.  On appeal, on 18 July 2012, the Rijeka County Court (Županijski sud u Rijeci) upheld the first-instance judgement dismissing the applicant’s ne bis in idem complaint as follows:

 “...When assessing the application of the ne bis in idem principle, the court should consider the nature of the punishable offence, the severity of the penalty imposed and the equivalence of the factual description. When comparing the essential elements of the minor offence referred to in section 2(3) of the Fire Protection Act and the serious criminal offence against public safety, it becomes clear that the punishable offences are not equivalent. Elements of the minor offence were achieved by the very act of failing to apply fire protection measures and that action does not simultaneously constitute a punishable offence proscribed in Article 271 § 3 in conjunction with Article 263 §§ 2 and 4 of the Criminal Code, where a greater amount of wrongdoing is incriminated. For the latter criminal offence to exist, the perpetrator must negligently endanger property of considerable value (or life and limb), and it must give rise to the consequence of extensive pecuniary damage. Therefore, the two offences refer to different amounts of wrongdoing that are described differently both in the factual account of the offences in the minor-offence decision and in the factual description in the operative part of the contested [criminal] judgment. While the minor-offence decision refers to the aforementioned omissions and failure to implement fire protection measures, the factual description of the criminal offence, in addition to individual equivalent omissions consisting of the applicant failing to seek approval prior to welding works from the Cres shipyard employee and similarly described omissions on the cutting location, also refers to the state of specific danger caused in terms of fire outbreak and to the consequence of damaged property in the amount of HRK 369,062.56. Therefore, this second-instance court deems that, in this case, the factual descriptions of the minor offence and of the criminal offence for which [the applicant] was found guilty do not constitute the same criminal offence because they do not arise from the same or nearly identical facts or the same punishable actions, and the court does not find a violation of the ne bis in idem principle or the prohibition of repeated prosecution for the same matter, in breach of the Criminal Code.”

12.  On 17 February 2016 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s subsequent constitutional complaint (decision served on the applicant on 8 March 2016), finding that:

“... in this specific case there is no factual or legal equivalence between the offences with which [the applicant] was charged in minor-offences and criminal proceedings. The severity of the consequences with which [he] was charged in criminal proceedings, as well as the prescribed sanctions for that offence, are essentially different from those with which [he] was charged in the first minor offences proceedings ... the definition of offences referred to in section 2(3) of the Fire Protection Act ... does not contain the consequence of causing excessive material damage, which is a crucial element in the definition of the criminal offence against the public safety of persons and property... as described in Article 263 §§ 2 and 4 in conjunction with Article 271 § 3 of the 1997 Criminal Code... in this case, the appeal court gave reasons backed by arguments for assessing the specific allegations of the applicant in the appeal, and found the factual findings of the first-instance court correct and lawful, with which the Constitutional Court also agrees. Consequently, the Constitutional Court finds that the contested judgements did not violate the ne bis in idem principle in the applicant’s case, as prescribed in Article 31 § 2 of the Constitution.”Relevant domestic law

13.  Relevant provisions of the Fire Protection Act (Zakon o zaštiti od požara, Official Gazette nos. 58/93, 33/05 and 107/07) read as follows:

Section 2

“(3)  Everyone shall be careful not to cause a fire.”

Section 49

“(2)  An individual who causes a fire shall be punished for a minor offence by a fine from HRK 100,000 to HRK 1,000,000 or by imprisonment from 30 to 60 days (section 2(3)).

(3)  An individual referred to in paragraph 2 of this section who negligently causes a fire shall be punished for a minor offence by a fine from HRK 10,000 to HRK 50,000....”

14.  Relevant provisions of the Criminal Code (Kazneni zakon, Official Gazette no. 110/97 with subsequent amendments), as in force at the material time, provided as follows:

Endangering Life and Property by Dangerous Public Actions or Means

Article 263

“(1)  Whoever endangers the life or limb of people or property of considerable value by fire, flood, an explosive, poison or poisonous gas, ionizing radiation, mechanical force, electric or other power, or by some publicly dangerous action or objects shall be punished by imprisonment from one to eight years.

(2)  The same punishment as referred to in paragraph 1 of this Article shall be inflicted on an official or responsible person who does not install devices for protection against fire, explosion, flood, poison, poisonous gases or ionizing radiation proscribed by law, or does not maintain such devices in working condition, or fails to activate them in case of need, or fails to act in accordance with the regulations or technical rules on safety measures, endangering thereby the life and limb of people or property of considerable value.

...

(4)  Whoever negligently commits the criminal offences referred to in paragraphs 1 and 2 of this Article shall be punished by imprisonment from six months to five years.”

Serious Criminal Offences Against Public Safety

Article 271

“(3)  If a criminal offence referred to in Article 263, paragraph 4, Article 264, paragraph 2, Article 265, paragraph 3, Article 266, paragraph 2 of this Code causes a serious bodily injury or extensive pecuniary damage, the perpetrator shall be punished by imprisonment from one to eight years.”

15.  Relevant provision of the Occupational Health and Safety Act (Zakon o zaštiti na radu, Official Gazette nos. 59/1996, 94/1996, 114/2003) provides as follows:

Section 55

“(1)  Employers in construction, erection, forestry, or shipbuilding work shall prepare the construction site and ensure that the work is being carried out in compliance with occupational safety and health protection at work regulations before the commencement of work on a temporary construction site.”

COMPLAINT

16.  The applicant complained under Article 4 of Protocol No. 7 to the Convention that he had been tried twice for the same offence.

THE LAW

17.  The applicant relied on Article 4 § 1 of Protocol No. 7 to the Convention, which provides as follows:

“1.  No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.”The parties’ arguments

18.  The Government argued that the two sets of proceedings did not concern the same facts. In the minor-offence proceedings the applicant was charged with failure to take all appropriate fire protection measures, the ultimate causing of pecuniary damage being irrelevant. In the criminal proceedings, on the other hand, he was charged with recklessly endangering property of considerable value by way of a specific dangerous action – a mandatory element of the criminal offence being extensive pecuniary damage, which under the relevant domestic case law, concerns damage above HRK 300,000.

19.  The Government further maintained that there had been no duplication of proceedings. The two sets of proceedings pursued different purposes and concerned different protected objects. At the same time, they were related to each other and could be regarded as one integrated response by the State to the various aspects of the applicant’s unlawful conduct. Moreover, according to the domestic law and practice, the two separate proceedings had been foreseeable to the applicant, who had been the responsible person to implement preventive fire protection measures. The criminal court assessed the entire case file of the minor-offence proceedings and used it in the manner permitted by law. Finally, the two proceedings having started in 2008 and, having been completed two years apart, had been sufficiently connected in time.

20.  The applicant maintained that both sets of proceedings against him concerned identical factual circumstances: the same place and time, and the same omission by the applicant to take certain preventive actions. Both proceedings had the same object of protection, and both referred to the extensive pecuniary damage which ensued as a result of the applicant’s omissions. In the applicant’s view, there had clearly been duplication of the evidentiary procedure and the two sets of proceedings had not been sufficiently connected in time.The Court’s assessmentGeneral principles

21.  Article 4 of Protocol No. 7 to the Convention is understood as prohibiting the prosecution or trial of a second “offence” in so far as it arose from identical facts or facts which were substantially the same (see Sergey Zolotukhin v. Russia [GC], no. 14939/03, § 82, ECHR 2009; Marguš v. Croatia [GC], no. 4455/10, § 114, ECHR 2014; and A and B v. Norway [GC], nos. 24130/11 and 29758/11, § 108, 15 November 2016).

22.  In cases raising an issue under Article 4 of Protocol No. 7, it should be determined whether the specific national measure complained of entails, in substance or in effect, double jeopardy to the detriment of the individual or whether, in contrast, it is the product of an integrated system enabling different aspects of the wrongdoing to be addressed in a foreseeable and proportionate manner forming a coherent whole, so that the individual concerned is not thereby subjected to injustice (see A and B v. Norway, cited above, § 122). The object of Article 4 of Protocol No. 7 is to prevent the injustice of a person’s being prosecuted or punished twice for the same criminalised conduct. It does not, however, outlaw legal systems which take an “integrated” approach to the social wrongdoing in question, in particular an approach involving parallel stages of legal response to the wrongdoing by different authorities and for different purposes (ibid., § 123).Application of the principles in the present case

(a)   Whether both sets of proceedings were criminal in nature

23.  In comparable cases against Croatia involving minor offences, the Court has held, on the basis of the “Engel criteria” (see Engel and Others v. the Netherlands, 8 June 1976, Series A no. 22), that minor-offence proceedings were “criminal” in nature for the purposes of Article 4 of Protocol No. 7 (see Maresti v. Croatia, no. 55759/07, § 61, 25 June 2009; Tomasović v. Croatia, no. 53785/09, § 25, 18 October 2011; and, in the context of an Article 6 complaint, Marčan v. Croatia, no. 40820/12, § 33, 10 July 2014).

24.  Noting that the parties did not dispute this, the Court sees no reason to depart from the conclusion reached in those previous cases and holds that both sets of proceedings in the present case concerned a “criminal” matter within the autonomous meaning of Article 4 of Protocol No. 7.

(b)   Whether the offences were the same in nature (idem)

25.  The notion of the “same offence” – the idem element of the ne bis in idem principle in Article 4 of Protocol No. 7 – was clarified in Sergey Zolotukhin (cited above, §§ 78-84). Following the approach adopted in that judgment, it is clear that the determination as to whether the offences in question were the same (idem) depends on a facts-based assessment (ibid., § 84), rather than, for example, a formal assessment consisting in comparing the “essential elements” of the offences. The prohibition in Article 4 of Protocol No. 7 to the Convention concerns the prosecution or trial of a second “offence” in so far as the latter arises from identical facts or facts which are substantially the same (ibid., § 82). In the Court’s view, statements of fact concerning both the offence for which the applicant has already been tried and the offence of which he or she stands accused are an appropriate starting-point for its determination of the issue whether the facts in both proceedings were identical or substantially the same (see, in this connection, Sergey Zolotukhin, cited above, § 83). The Court’s inquiry should therefore focus on those facts which constitute a set of concrete factual circumstances involving the same defendant and inextricably linked together in time and space, the existence of which must be demonstrated in order to secure a conviction or institute criminal proceedings (ibid., § 84).

26.  In the present case, there is no doubt that both the minor-offence proceedings and the criminal proceedings concerned a fire which broke out as a result of welding works on a ship located in the Cres shipyard on 7 February 2008 (see paragraph 4 above).

27.  In the minor-offence proceedings the applicant was prosecuted under the Fire Protection Act for failing to seek approval for welding from the competent person at the shipyard, to undertake fire protection measures and to determine whether the possibility of causing fire to adjacent areas had been eliminated contrary to section 2 of that Act (3) (see paragraph 5 above). In the subsequent criminal proceedings, the applicant was prosecuted and punished under Article 271 § 3 in conjunction with Article 263 §§ 2 and 4 of the Criminal Code for endangering property of high value by a publicly dangerous action (see paragraph 10 above). The charges against him encompassed his failure to seek approval for welding from the competent person at the shipyard and to properly prepare of the place on which welding work was to be performed (see paragraph 8 above).

28.  In other words, both the minor-offence and the criminal proceedings concerned the facts that the applicant had failed to seek approval for welding from the competent person at the shipyard and to undertake fire protection measures prescribed under the domestic law. In that part the Court considers that the idem element is present.

29.  It is also true, as the Government suggested, that the criminal proceedings took account of the extensive pecuniary damage caused by the fire, which was not assessed in the minor-offence proceedings. The Court recalls that, even when the overlap in facts was only partial such as in the present case, the bifurcation of proceedings carries a risk of “double counting” of punishment and vexatious re-prosecution, both of which are contrary to the principle of ne bis in idem. Thus, even in such cases the Court must be satisfied that there has been, even if only partially, no duplication of trial or punishment (bis), as proscribed by Article 4 of Protocol No. 7 to the Convention (see, mutatis mutandis, Bajčić v. Croatia, no. 67334/13, § 38, 8 October 2020).

(c)   Whether there was a duplication of proceedings (bis)

30.  The general principles concerning duplication of proceedings have been explained in A and B v. Norway (cited above, §§ 130-33).

31.  In the present case, in 2009 the applicant was acquitted in the minor-offence proceedings for causing a fire. Before those proceedings were finalised, in 2008 he was indicted under Article 271 § 3 in conjunction with Article 263 §§ 2 and 4 of the Criminal Code for causing extensive pecuniary damage to property with a publicly dangerous action. He was ultimately sentenced in those proceedings to a suspended prison sentence in 2011 (see paragraph 10 above).

32.  Assessing the connection in substance between the minor-offence and criminal proceedings in the present case, the Court notes that the purpose of the minor-offence proceedings was to address the applicant’s failure to comply with fire-safety regulations in performing his work. As the Government explained, this minor offence is aimed at discouraging all persons from disregarding fire-safety regulations, irrespective of whether or not their conduct causes a life-endangering situation or damage to property. The subsequent criminal proceedings against the applicant, on the other hand, were conducted precisely with the aim of addressing the consequence of his failure to comply with fire-safety regulations, that is, to penalise his conduct which caused extensive pecuniary damage to property (compare and contrast Gradinger v. Austria, 23 October 1995, § 54, Series A no. 328‑C). The Court therefore accepts that the two sets of proceedings pursued complementary purposes in addressing different aspects of the applicant’s failure to respect fire safety regulations, criminal proceedings being limited to offences which are particularly serious, such as reckless endangerment of life or property (see paragraph 14 above).

33.  As to the manner of conducting the proceedings, the Court notes that the criminal court obtained and inspected the case file from the minor-offence proceedings in its entirety (see paragraph 9 above). It can therefore be concluded that the interaction between the two courts was adequate and that the two sets of proceedings formed a coherent whole (see Bajčić, cited above, § 43; see also, a contrario, Kapetanios and Others v. Greece, nos. 3453/12 and 2 others, §§ 65-74, 30 April 2015, where the applicants had first been acquitted in criminal proceedings, and later on imposed with severe administrative fines for the same conduct). Consequently, the applicant has not suffered a disadvantage associated with the duplication of proceedings, beyond what was strictly necessary.

34.  The Court further notes that, while the applicant was acquitted in the minor-offence proceedings (see paragraph 6 above), the criminal court imposed a suspended custodial sentence on him. In the Court’s view, the penalty imposed did not exceed what was strictly necessary in relation to the seriousness of the offence concerned. It cannot therefore be said that the applicant was made to bear an excessive burden (see the relevant criteria set out in A and B v. Norway, cited at paragraph 30 above).

35.  Finally, turning to the connection in time between the two proceedings, the Court notes that the criminal indictment was filed by the Rijeka State Attorney’s Office in May 2008, whereas the minor-offence proceedings were instituted by the police some six months later, in November 2008 (see paragraphs 8 and 5 above). The two sets of proceedings were then conducted in parallel for about a year, when the Mali Lošinj Minor Offences Court’s acquittal became final (see paragraph 7 above). The criminal proceedings thereafter lasted for another five years and three months before three court instances. In particular, the first instance conviction was pronounced about two years after the acquittal in the minor‑offences proceedings (see paragraph 10 above) and became final only nine months later (see paragraph 11 above). While it is true that it took the Constitutional Court thereafter over three and a half years to decide the applicant’s constitutional complaint, in the Court’s view that period cannot be considered disproportionate, abusive or unreasonable for the purposes of Article 4 of Protocol No. 7, nor can it of itself suffice to disconnect in time the minor-offence and the criminal proceedings in the present case (see, Bajčić, cited above, § 45; and contrast Kapetanios, cited above, § 67, where the delay between the conclusion of the two sets of proceedings had amounted to between 9 and 14 years; and Nodet v. France, no. 47342/14, §§ 52-53, 6 June 2019, where the Court found no sufficiently close substantive or temporal link between the two sets of proceedings). In these circumstances, the Court is satisfied that the two proceedings were sufficiently connected in time.

36.  In conclusion, the two foreseeable complementary sets of proceedings in the present case were sufficiently connected in substance and in time, as required by the Court’s case-law, so as to be considered to form part of an integral scheme of sanctions under Croatian law for failure to comply with fire safety regulations and causing extensive pecuniary damage. In the light of the foregoing, the Court finds no abuse of the State’s right to impose a punishment (jus puniendi), nor can it conclude that the applicant suffered any disproportionate prejudice resulting from the duplication of proceedings, which formed a coherent and proportionate whole (see, Bajčić, cited above, § 46).

37.  It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 14 October 2021.

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 Attila Teplán Krzysztof Wojtyczek
Acting Deputy Registrar President

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