Communicated on 15 January 2014
SECOND SECTION
Application no. 50124/13
Momčilo MILENKOVIĆ
against Serbia
lodged on 12 June 2013
STATEMENT OF FACTS
The applicant, Mr Momčilo Milenković, is a Serbian national, who was born in 1969 and lives in Leskovac. He is represented before the Court by Mr Z. Đušić, a lawyer practising in the same town.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 17 October 2007 the Leskovac police informed the local minor‑offences judge and the public prosecutor’s office about a violent incident between the applicant and a certain R.C. that had occurred on 12 October 2006 in a neighbourhood of Leskovac.
1. Conviction for a minor offence
By a decision of 6 November 2007 the minor-offences judge in Leskovac (sudija Opštinskog organa za prekršaje u Leskovcu) found that at about 5.30 p.m. on 12 October 2006, R.C. had first verbally insulted the applicant’s family and punched his mother, while the applicant had struck him several times on the head. The judge concluded that these actions had been in breach of public order and peace and had thus been contrary to Article 6(3) of the Public Order Act 2000 (see below at 2.a., Relevant domestic law and practice). Each of them was ordered to pay a fine in the amount of 4,000 dinars (“RSD”) plus RSD 700 for costs (at that time equivalent to approximately 60 euros in all), which in case of non-compliance would be converted into a prison term.
2. Conviction of a criminal offence
On 4 April 2007 the Leskovac Public Prosecutor’s Office (“LPPO”) criminally charged the applicant with inflicting grievous bodily harm on R.C. in connection with the above incident, contrary to Article 121 § 2 of the Criminal Code 1998. The LPPO, as well as the applicant and his family in the capacity of private prosecutors, lodged separate indictments against R.C. for several offences. All indictments were joined in the same proceedings before the Leskovac Municipal Court.
In a judgment of 13 April 2011 the Leskovac Municipal Court found the applicant guilty as charged and sentenced him to three months’ imprisonment. It held that at about 4.00 and 4.30 p.m. on 12 October 2006, the applicant, after his family had been insulted and his mother had been punched by R.C., had severely harmed R.C. in that he had knocked him down to the ground and continued hitting him several times on the head. R.C. was found guilty and fined for insulting and causing minor bodily injuries.
The applicant appealed, inter alia arguing that he had already been punished in respect of the same incident by the Leskovac minor-offences judge, with the result that the principle of ne bis in idem had been violated.
On 20 March 2012 the Niš Appeals Court upheld the judgment in respect of the applicant and dismissed the charges against R.C. as statute-barred. As regards the principle ne bis in idem, the court held that the applicant had been found guilty of a minor offence against public order and peace in the minor offences proceedings, whereas he had been convicted of the criminal offence of grievous bodily harm in the criminal proceedings. According to the court, the description of the type of sanctioned acts therefore clearly differed.
The applicant appears not to have served the criminal sanction yet.
3. Constitutional avenue
In a subsequent constitutional appeal lodged on 25 May 2012 the applicant reiterated that he had been tried and punished twice for the same offence, in breach of Article 34 § 4 of the Constitution.
On 20 May 2013 the Constitutional Court, referring to the reasoning of the Niš Appeals Court as “fully acceptable from the constitutional point of view”, dismissed the applicant’s appeal as ill-founded. The decision of the Constitutional Court was served on the applicant’s representative on 29 May 2013.
B. Relevant domestic law and practice
1. Relevant provisions concerning the principle ne bis in idem
The Constitution of the Republic of Serbia (published in the Official Gazette of the Republic of Serbia - OG RS – no. 98/06) guarantees, under Article 34 § 4, that no person may be prosecuted or sentenced for a criminal offence for which he has been acquitted or convicted by a final judgment, for which the charges have been dropped or criminal proceedings have been discontinued by a final decision. The same prohibitions should be applicable to all other proceedings conducted for any other act punishable by law.
The language of Article 6 § 1 of the Criminal Procedure Code (Zakon o krivičnom postupku, published in the Official Gazette of the SRY, nos. 70/01 and 68/02 and OG RS nos. 58/04, 85/05, 115/05, 46/06, 49/07 and 122/08), corresponds to Article 34 § 4 of the 2006 Constitution referred to above.
According to Article 8 of the Minor Offences Act 2005 (Zakon o prekršajima, published in OG RS nos. 101/05, 116/08 and 111/09) no one shall be sanctioned in minor offences proceedings two or more times for the same minor offence, nor may a person be punished for a minor offence if he or she had been convicted by a final decision in criminal or commercial proceedings of an offence which had the same essential elements as the minor offence in question.
2. Provisions concerning the relevant offences
Article 121 § 2 of the 1976 Criminal Code (Krivični zakonik Republike Srbije, published in OG RS, nos. 85/2005, 88/2005, 107/2005, 72/2009, 111/2009, 121/2012 and 104/2013) provides that “whoever inflicts bodily injury on another or impairs another’s health shall be sentenced to imprisonment for a term of not less than one year and not exceeding eight years.” Under Article 50 § 3 the competent court could impose a sanction below the prescribed minimum in the event that there were mitigating circumstances.
Article 6(3) of the Public Order Act (Zakon o javnom redu i miru, published in OG RS nos. 851/92, 53/93, 67/93, 48/94, 85/05 and 101/05) provides that anyone who disturbs the peace in a public place by verbally or physically attacking another person, or by inciting or participating in a fight, is committing a minor offence against public order and shall be fined in an amount up to RSD 30,000 or to a term of imprisonment not exceeding sixty days.
COMPLAINT
The applicant complains under Article 4 of Protocol No. 7 that he was convicted of the same offence twice.
QUESTION TO THE PARTIES
1. Has the applicant been tried for or convicted twice of the same offence in the territory of the respondent State, in breach of Article 4 § 1 of Protocol No. 7 (see, for example, Sergey Zolotukhin v. Russia [GC], no. 14939/03, §§ 78-87/115, ECHR 2009; Tsonyo Tsonev v. Bulgaria (no. 2), no. 2376/03, §§ 47-57, 14 January 2010; Maresti v. Croatia, no. 55759/07, 25 June 2009; and Zigarella v. Italy (dec.), no. 48154/99, ECHR 2002‑IX (extracts))?
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