Published on 2 June 2025
SECOND SECTION
Application no. 29698/23
Luka JERIĆ
against Croatia
lodged on 24 July 2023
communicated on 13 May 2025
STATEMENT OF FACTS
The application concerns criminal proceedings in which the applicant was found guilty of four counts of abuse of trust in business operations (zlouporaba povjerenja u gospodarskom poslovanju) under Article 246 § 2 of the 2011 Penal Code. In particular, the domestic courts established that he, as the majority shareholder of the A. company and the president of its supervisory board (nadzorni odbor), had taken part in the overall management of its operations and had, by undertaking the incriminated acts, breached his duty of due care for its pecuniary interests. That duty was based in law, namely in section 252 of the Commercial Companies Act, which provided for the duty of due care of the management board members (članovi uprave).
The domestic courts found that the provisions of the 2011 Penal Code were more lenient for the applicant than those of the 1997 Penal Code, which was in force at the time of commission, and in particular of Articles 292 § 2 and 337 § 4 thereof which provided for the criminal offences of abuse of authority in business operations (zlouporaba ovlasti u gospodarskom poslovanju), and abuse of office and authority (zlouporaba položaja i ovlasti), respectively. They thus applied the former.
The applicant, relying on Article 7 of the Convention, complains that he could not have been convicted under either Penal Code. Specifically, being a shareholder and the president of the supervisory board, he was never authorised to manage the A. company’s operations and had thus lacked the necessary personal capacity – that of an official or the responsible person under Article 337 § 4 of the 1997 Penal Code, or of a management board member under Article 246 § 2 of the 2011 Penal Code in connection with section 252 of the Commercial Companies Act – to be convicted as the perpetrator of the offences in question.
Moreover, relying on Article 6 § 1 of the Convention, he complains that the prosecution for one the offences, committed in the period between 1 March 1995 and 29 May 2000, had become time-barred. In particular, he submits that the domestic courts’ conclusion that the prescription period started to run only after the offence had been completed, i.e., when the last day of the incriminated period had passed, was erroneous and contrary to the Supreme Court’s decision no. Kž-13/2006 of 25 May 2006. According to the latter, the prescription period for the prosecution of the criminal offence of abuse of office and authority started to run when the unlawful situation was firstly established. The applicant contends that in his case the relevant date was 1 March 1995 and that the (absolute) prescription period had thus expired on 2 March 2015, whereas the first-instance court’s judgment was adopted in 2017.
QUESTIONS TO THE PARTIES
1. Did the acts of which the applicant was convicted constitute a criminal offence under national law at the time when they were committed, as envisaged by Article 7 of the Convention (see Kotlyar v. Russia, nos. 38825/16 and 2 others, §§ 28-34, 12 July 2022, and Rohlena v. the Czech Republic [GC], no. 59552/08, § 56, ECHR 2015)?
2. In particular, having regard to the capacity in which the applicant acted within the A. company, was his conviction under Article 246 § 2 of the 2011 Penal Code in connection with section 252 of the Commercial Companies Act foreseeable and thus in compliance with Article 7 of the Convention (see, for example, Del Río Prada v. Spain [GC], no. 42750/09, §§ 91-93, ECHR 2013)? More specifically, was it in line with the requirement that the provisions of the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy (see, for example, Del Río Prada, cited above, § 78, Antia and Khupenia v. Georgia, no. 7523/10, §§ 35-37, 8 June 2020; and, mutatis mutandis, Başkaya and Okçuoğlu v. Turkey [GC], nos. 23536/94 and 24408/94, §§ 42-43, ECHR 1999-IV)?
3. Having regard to the applicable prescription period (see the Supreme Court’s judgment and decision of 11 September 2020 in the applicant’s case, as well as Article 81 of the 2011 Penal Code), was the applicant found guilty of a criminal offence which had in the meantime become time-barred, contrary to Article 6 § 1 and/or Article 7 of the Convention (see, for instance, Coëme and Others v. Belgium, nos. 32492/96 and 4 others, § 146, ECHR 2000-VII; Antia and Khupenia, cited above, § 39, and Navalnyy and Ofitserov v. Russia, nos. 46632/13 and 28671/14, § 101, 23 February 2016)?