CASE OF MARESTI v. CROATIA
Violation of Art. 6-1;Violation of P7-4;Remainder inadmissible;Non-pecuniary damage - Award
Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
4. The applicant was born in 1965 and lives in Pazin. 5. On 16 June 2005 the Pazin Police lodged a request for minor-offences proceedings to be instituted against the applicant in the Pazin Minor-Offences Court (Prekršajni sud u Pazinu). In a decision of the same day the Pazin Minor-Offences Court found that at about 7 p.m. on 15 June 2005 at the Pazin coach terminal, the applicant had, while under the influence of alcohol, verbally insulted one D.R., punched him in the head several times and proceeded to kick and punch him about the body. The applicant was found guilty of particularly offensive behaviour in a public place in that he had insulted another and caused a breach of the peace. This constituted a minor offence under section 6 of the Minor Offences against Public Order and Peace Act for which he was sentenced to forty days’ imprisonment. That decision became final on 29 June 2005. The relevant part of the decision reads: “Defendant: Armando Maresti ... is guilty in that at 7 p.m. on 15 June 2005 at the coach terminal in Pazin, while under the influence of alcohol, he ... firstly insulted D.R. ... and then pushed him with both hands and, when he fought back, started to hit him with his fists many times to the head before continuing to punch and kick him about his entire body. ...” 6. On 14 July 2005 the Pazin State Attorney’s Office (Općinsko državno odvjetništvo Pazin) lodged an indictment with the Pazin Municipal Court (Općinski sud u Pazinu) accusing the applicant of causing grievous bodily injury to A.M. 7. The applicant was represented in the proceedings by counsel. On 9 September 2005 his counsel submitted a written request for all correspondence to go through him and enclosed a signed authority by the applicant’s mother. At the time the applicant was serving a prison sentence in Pula Prison. 8. On 15 November 2005 the Pazin State Attorney’s Office lodged an indictment with the Pazin Municipal Court accusing the applicant of causing grievous bodily injury to D.R. It relied in the indictment on a police report on the events of 15 June 2005. 9. On 12 April 2006 the Municipal Court joined three separate sets of criminal proceedings against the applicant, including the proceedings in respect of the alleged assaults on A.M. and D.R. On the same day it ordered the applicant’s detention on the grounds that he had been indicted in several sets of proceedings, had a number of previous convictions and would be liable to reoffend if left at large. 10. On 19 May 2006 the Municipal Court found the applicant guilty on two counts of assault causing grievous bodily injury and one count of making death threats. In respect of the incident at the Pazin coach terminal on 15 June 2005, it found that the applicant had approached D.R. and insulted him verbally before proceeding to punch and kick him about the body. He was sentenced to one year’s imprisonment in respect of all the offences of which he was convicted. The time he had already served in connection with his conviction in the summary proceedings before the Minor-Offences Court was to be deducted from his sentence. He was ordered to undergo compulsory treatment for alcohol addiction during his imprisonment. The relevant part of the judgment reads: “Defendant Armando Maresti ... is guilty because ... 2) at about 7 p.m. on 15 June 2005. at the coach terminal in Pazin, while under the influence of alcohol, he ... approached D.R. ... and firstly insulted him verbally, ... and then proceeded to push him with both hands before hitting him on the head with his fists breaking his dental prosthesis; when he [D.R.] attempted to leave, the defendant caught him, pushed him to the ground and kicked him about his entire body thereby causing him a number of injuries...” 11. In an appeal of 7 June 2006 the applicant alleged, inter alia, that in respect of the offences against A.M. and D.R. he had already been convicted by the Pazin Minor-Offences Court and that the non bis in idem rule had been violated. On 30 June 2006 the Pula County Court (Županijski sud u Puli) allowed the applicant’s appeal in respect of the offence against A.M., on grounds other than the alleged violation of the non bis in idem rule, and upheld his convictions of the other two offences, while reducing the overall sentence to seven months’ imprisonment. 12. The appellate judgment was served on the applicant’s mother on 9 August 2006 and on his counsel on 16 August 2006. On 13 September 2006 the applicant’s counsel lodged a request with the Pazin Municipal Court for extraordinary review of the final judgment. He argued, inter alia, that the applicant had acted in self defence and repeated the submission he had made on appeal that, as the applicant had already been convicted by the Pazin Minor-Offences Court , the non bis in idem rule had been violated. 13. In a decision of 14 September 2006, the Municipal Court declared the request inadmissible as it had been lodged outside the one-month time limit. On an appeal against that decision, the applicant argued that the impugned judgment had not been properly served since his mother suffered from schizophrenia and was not capable of clear judgment and so could not be regarded as an adult member of the same household within the meaning of Article 146, paragraph 1, of the Code of Criminal Procedure. He supported that assertion with a medical certificate. He further argued that his request for extraordinary review of the final judgment had been lodged within one month after it was served on his counsel and so had complied with the prescribed time-limit. 14. On 23 February 2007 the Pula County Court dismissed the appeal after finding that the applicant’s mother had signed an authority for the applicant’s legal representation in the criminal proceedings, so that it could not be said that she had been incapable of clear judgment. 15. In a subsequent constitutional complaint lodged on 23 March 2007 the applicant argued, inter alia, that the judgment of the Pula County Court of 30 June 2006 had not been properly served on him and that his right to a remedy had thus been violated. On 24 May 2007 the Constitutional Court declared the complaint inadmissible on the ground that it did not concern the merits of the case. 16. The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002, 63/2002, 62/2003 and 115/2006) read as follows: “Correspondence for which this Act does not specifically prescribe personal service shall also be served personally. Where, however, the intended recipient is not found on the premises..., it may be served on an adult member of the same household who shall be bound to accept service...” “An infringement of the Criminal Code arises if: ... 3. there exist circumstances which exclude criminal prosecution, in particular, where ... the matter has already been finally adjudicated, ...” “(1) A defendant who has been finally sentenced to a prison term ... may lodge a request for the extraordinary review of a final judgment on account of infringements of this Act. (2) A request for the extraordinary review of a final judgment shall be lodged within a month after the final judgment has been served on the defendant. ...” “The Supreme Court shall decide requests for the extraordinary review of a final judgment.” “A request for the extraordinary review of a final judgment may be lodged [in respect of]: 1. an infringement of the Criminal Code to the detriment of the convicted person under Article 368(1)-(4) of this Act... ... 3. an infringement of the defence rights at the trial or of the procedural rules at the appellate stage, if it may have influenced the judgment.” 17. The relevant parts of the Criminal Code (Kazneni zakon, Official Gazette no. 110/1997) read as follows: “Whoever inflicts bodily injury on another or impairs another’s health shall be sentenced to imprisonment for a term of no less than three months and not exceeding three years.” 18. The relevant part of the Minor Offences against Public Order and Peace Act (Zakon o prekršajima protiv javnog reda i mira, Official Gazette nos. 5/1990, 47/1990 and 29/1994) reads: “Anyone who behaves in a particularly offensive or rude manner in a public place by insulting citizens or disturbing the peace shall be liable to a fine ... or to a term of imprisonment not exceeding sixty days.”