THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF CROATIA
No. U-III-2270/2001
Zagreb, 26 March 2002
The Constitutional Court of the Republic of Croatia in the Council of Six for
deciding on constitutional complaints, composed of Judge Jasna Omejec, President
of the Council, and Judges Marijan Hranjski, Mario Kos, Ivan Mrkonjic, Emilija Rajic
and Vice Vukojevic, Council Members, deciding on the constitutional complaint of M.
B., represented by the K., H. & U. Law Firm from V., at a meeting of the Council held
on 26 March 2002, rendered the unanimous
DECISION
I.
The constitutional complaint is accepted.
II.
The following are repealed:
- sentence of the County Court in V., No. Kž-227/01-8 of 16 October 2001,
- sentence of the Municipal Court in V., No. K-267/99-8 of 19 March 2001.
III.
procedure.
The case is referred back to the Municipal Court in V. for repeated
Statement of reasons
1.
The applicant, represented by the K., H. & U. Law Firm from V., lodged a
constitutional complaint against the sentence of the County Court in V., No. Kž227/01-8 of 16 October 2001, whereby the appeal of the applicant (who was first
defendant) was partly accepted and the sentence revised of the Municipal Court in
V., No. K-267/99-8 of 19 March 2001, in relation to the criminal act in Item 1 of the
dictum in the sentence of the court of original jurisdiction.
In Item 1 of the dictum of the disputed sentence of the County Court in V., the
applicant and two other defendants were freed of the charge of committing the
criminal act in Article 335 para. 2 of the Criminal Code (Official Gazette of the
Republic of Croatia, Narodne novine, No. 110/97), and Item 2 of the same sentence
stipulates that the costs of the criminal proceedings in connection with the above
criminal act, for the applicant and the second and third defendants, shall be met from
the court’s budgetary funds.
In Item III of the disputed sentence, the County Court in V. revised the sentence of
the court of original jurisdiction in relation to the applicant, found the applicant guilty
2
of the criminal act in Article 298 para. 1 of the Criminal Code, and sentenced him to 8
(eight) months imprisonment, suspended (in accordance with Article 67 of the same
Code) unless he commits a new criminal act within a term of 2 (two) years.
In Items IV and V of the disputed sentence of the County Court in V. (in relation to the
imposed measure of seizing the object of the criminal act from the applicant, in
accordance with Article 80 para. 1 of the Criminal Code, in relation to including the
time the applicant spent in custody, and in relation to other expenses of the criminal
proceedings incurred by the applicant) the applicant’s appeal was refused and the
sentence confirmed of the Municipal Court in V., No. K-267/99-8 of 19 March 2001.
2.
In the constitutional complaint, the applicant basically claims that the above
first-instance sentence of the Municipal Court in V., which the County Court in V.
partly confirmed, and in which he was found guilty and sentenced for an attempt to
commit the criminal act in Article 298 para. 1, in connection with Article 33 para. 1
and Article 35 para 1 of the Criminal Code, was a misapplication of the relevant
substantive law.
The applicant points out that the evidence did not conclusively prove the essential
characteristic of the act he was charged with, i.e. that he had repeatedly engaged in
transporting goods across the frontier with the purpose to avoid paying customs duty.
Considering this very important fact (that the essential characteristic of the criminal
act was not proved), the applicant points out that at the time (5 July 1997) when the
act was committed (attempted) the Criminal Code of the Republic of Croatia was in
force (Narodne novine, Nos. 32/93, 38/93, 16/96 and 28/96), which did not recognise
this act as a criminal act. He claims that the act described could at that time only
have been treated as a customs violation, in the sense of the provisions about
violations in the Customs Law (Narodne novine, Nos. 53a/91, 33/92, 106/93, 92/94,
30/99 and 62/99), and he therefore considers that he was found guilty and punished
for an act which was not a criminal act at the time of perpetration.
He claims that the disputed sentence of the County Court in V. (and the sentence of
the court of original jurisdiction) infringed his constitutional right in Article 31 para. 1
of the Constitution of the Republic of Croatia.
The constitutional complaint is grounded.
3.
In accordance with Article 334 para. 1 of the Customs Law, “Whoever
occupies himself with transporting goods across the frontier, and in doing so avoids
the measures of customs control, or who avoids the measures of customs control
and transports goods across the frontier armed, in a group, or with the use of force or
threats, shall be punished for a criminal act and sentenced to one to five years
imprisonment and a fine”.
In accordance with Article 298 para. 1 of the Criminal Code, " Whoever transports a
large amount of goods across the frontier, and in doing so avoids the measures of
customs control, shall be punished by a fine or a prison sentence of up to three
years.”
3
4.
The Court analysed the applicant’s claims, the facts of the case established in
earlier proceedings, and the wording of the disputed sentence of the County Court in
V. (and the sentence of the Municipal Court in V., No.: K-267/99-8 of 19 March 2001),
and found that the relevant substantive law had been misapplied in the proceedings
before the competent courts.
This emerges from the fact that at the time when the incriminating act took place, the
Penal Code of the Republic of Croatia did not recognise the criminal act of which the
applicant was found guilty in the above sentence of the court of original jurisdiction
(by referring to the provisions of Article 298 para. 1 of the Criminal Code that was
passed later).
In the opinion of this Court, there can be no identity in the essence of criminal acts if
the offences differ in the description of the essential characteristics for which they lay
down type of responsibility and punishment, and this is undoubtedly the case in the
articles of the Customs Law and Criminal Code quoted.
Therefore, the Court holds that the applicant was found guilty of and punished for a
criminal act although the act he had committed was not recognised as a criminal act
at the time of its perpetration (it was recognised as a criminal act in 1997 when the
new Criminal Code was passed).
The Court especially emphasizes that the applicant was found guilty of a criminal act
and punished in accordance with the provisions of the Criminal Code that was not in
force at the time when the act was committed (because the Criminal Code was
passed after the perpetration of the act).
5.
Starting from the above, and from the obvious misapplication of the relevant
substantive law in the case of the applicant, the Court holds that his constitutional
right has been infringed because, in accordance with Article 31 para. 1 of the
Constitution of the Republic of Croatia, no one shall be punished for an act which
before its commission was not defined by law or international law as a criminal act,
nor may he be sentenced to a punishment which was not defined by law.
This is an infringement because the Court holds that when the court of original
jurisdiction ruled about the applicant’s responsibility for the act described, it did not
take the obviously relevant regulation into account, or misinterpreted the relevant
regulation, and the County Court in V. did not amend this in the disputed ruling.
6.
In pursuance of the above, grounded on the provisions of Articles 69 and 72 of
the Constitutional Act on the Constitutional Court of the Republic of Croatia (Narodne
novine, Nos. 99/99, 29/02), the Constitutional Court has decided as in the dictum.
PRESIDENT OF THE COUNCIL
Jasna Omejec, LLD, m. p.