FOURTH SECTION
Application no. 32042/11
Adnan MUSLIJA
against Bosnia and Herzegovina
lodged on 14 April 2011
STATEMENT OF FACTS
THE FACTS
The applicant, Mr Adnan Muslija, is a citizen of Bosnia and Herzegovina, who was born in 1969 and lives in Sarajevo. He is represented before the Court by Mr K. Kolić, a lawyer practising in Sarajevo.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Conviction of a minor offence
On 13 February 2003 the Kakanj Police lodged a request for minor‑offences proceedings to be instituted against the applicant in the Kakanj Minor-Offences Court (Općinski sud za prekršaje Kakanj).
In a decision of 16 August 2004 the Kakanj Minor-Offences Court found that on 12 February 2003 at about 6.40 p.m. the applicant had physically attacked his former wife, M.P., at her flat in Kakanj. The applicant punched M.P. in the head several times and proceeded to kick and punch her about the body in the presence of their minor children. The applicant was found guilty of a minor offence against public order (battery) under section 3(1)(2) of the Public Order Act 2000 (see “Relevant domestic law” below) for which he was imposed a fine of 150 convertible marks (BAM)[1]. That decision became final on 19 October 2004.
On 3 August 2006 the applicant paid the fine.
2. Conviction of a criminal offence
On 18 September 2003 the competent public prosecutor lodged an indictment with the Kakanj Municipal Court accusing the applicant of causing grievous bodily injury to M.P.
On 9 January 2008 the Kakanj Municipal Court found the applicant guilty of a criminal offence against the person (grievous bodily injury) and sentenced him to three months’ imprisonment. In ordering the sentence, the court took into account various mitigating circumstances, such as, that the applicant was a father of three minor children, that he had no previous convictions, that he was unemployed, the lapse of time and the fact that he did not reoffend. The court also had regard to the fact that the incident took place in the presence of the applicant’s and M.P.’s minor children, as an aggravating circumstance. On 7 April 2008 that judgment was upheld by the Zenica Cantonal Court.
3. Proceedings before the Constitutional Court
On 4 June 2008 the applicant lodged a constitutional appeal complaining of a violation of the non bis in idem principle. On 11 January 2011 the Constitutional Court of Bosnia and Herzegovina rejected his appeal. It held that in the minor-offences proceedings the applicant had been found guilty of a minor offence against public order (battery), whereas in the criminal proceedings he had been convicted for a criminal offence against the person (grievous bodily injury). Therefore, the Constitutional Court held that, although both decisions were based on the same incident, the offences had different nature and purpose.
B. Relevant domestic law
Article 48 § 2 of the Criminal Code 1998[2], which was in force until 1 August 2003, provided, inter alia, that a fine imposed for a minor offence would be deducted from a sentence imposed in the criminal proceedings (BAM 50 equals 1 day in prison) if the criminal offence contains the same elements as the minor offence. Article 177 § 1 of this Code provided that whoever inflicts bodily injury on another or impairs another’s health should be sentenced to imprisonment for a term of no less than six months and not exceeding five years. The competent court can impose a sanction below the prescribed minimum in the existence of mitigating circumstances (Article 41 § 2 of this Code).
Section 3(1)(2), of the Public Order Act 2000[3] provides that battery attracts a fine between BAM 200 and BAM 500 or imprisonment not exceeding sixty days (section 6(1) of this Act). As of 15 July 2007, battery attracts only a fine between BAM 200 and BAM 500.
COMPLAINTS
The applicant complains that he was tried and convicted twice for the same offence. He relies on Article 4 of Protocol No. 7 to the Convention. The applicant complaints about the outcome of the criminal proceedings described above also under Articles 6 and 14 of the Convention.
QUESTION
Has the applicant been punished twice for the same offence as prohibited by Article 4 § 1 of Protocol No. 7 (see Maresti v. Croatia, no. 55759/07, 25 June 2009)?
[1]1. The convertible mark uses the same fixed exchange rate to the euro that the German mark has: EUR 1 = BAM 1.95583.
[2]2. Krivični zakon Federacije Bosne i Hercegovine, Official Gazette of the Federation of Bosnia and Herzegovina, nos. 43/98, 2/99, 15/99, 29/00 and 59/02.
[3]1. Zakon o javnom redu i miru Zeničko-dobojskog kantona, Official Gazette of the Zenica-Doboj Canton nos. 8/00, 15/03, 11/07 and 8/08.
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