CASE OF TOMASOVIC v. CROATIA
Violation of P7-4
Anatoly Kovler;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
4. The applicant was born in 1973 and lives in Split. 5. On 25 March 2004 the Split police lodged a request for minor-offences proceedings to be instituted against the applicant in the Split Minor Offences Court (Prekršajni sud u Splitu). 6. On 3 March 2006 the Split Minor Offences Court found that on 15 March 2004 at about 10.35 p.m. the applicant had had 0.21 grams of heroin on her, which amounted to a minor offence under section 3(1) of the Prevention of Narcotics Abuse Act. She was fined 1,700 Croatian kunas (HRK) on the basis of section 54(1)(1) and 54(3) of the same Act. This decision became final on 15 March 2006. 7. On 8 February 2005 the Split State Attorney’s Office (Općinsko državno odvjetništvo u Splitu) lodged an indictment with the Split Municipal Court (Općinski sud u Splitu) accusing the applicant of possession of heroin. The police report was included in the case file. 8. On 19 March 2007 the Split Municipal Court, in criminal proceedings against the applicant, found the applicant guilty of possessing 0,14 grams of heroin on 15 March 2004 at about 10.35 p.m. and fined her HRK 1,526. The previous fine was to be included in this one. The applicant was also ordered to bear the costs of the proceedings in the amount of HRK 400. 9. The applicant’s conviction was upheld by the Split County Court (Županijski sud u Splitu) on 5 June 2007 but a suspended sentence of four month’s imprisonment was applied with a one-year probation period. 10. The applicant’s subsequent constitutional complaint, alleging a violation of the ne bis in idem principle, was dismissed by the Constitutional Court on 7 May 2009 on the ground that the Croatian legal system did not exclude the possibility of punishing the same person twice for the same offence when the same act is prescribed both as a minor offence and a criminal offence. 11. The relevant part of the Prevention of Narcotics Abuse Act (Zakon o suzbijanju zloupotrebe opojnih droga, Official Gazette nos. 107/2001, 87/2002, 163/2003) reads: “(1) The growing of plants from which narcotics may be produced and the production, possession and trafficking in narcotics, plants and parts of the plants from which narcotics may be produced is banned, as is the production, possession and trafficking in substances which may be used for the production of narcotics, save for [such possession, production and trafficking] under the conditions prescribed by this Act for medical, nutritional, veterinarian or educational purposes or for the purposes of scientific research. ...” “(1) A legal entity shall be fined between HRK 20,000 and HRK 50,000 for the minor offences of: 1. possession of narcotics ... ... (3) For the minor offence under subsection (1) point 1 ... of this section a person shall be fined between HRK 5,000 and 20,000.” 12. The relevant part of the Criminal Code (Kazneni zakon, Official Gazette nos. 110/1997, 27/1998, 50/2000, 129/2000, 51/2001, 111/2003, 190/2003, 105/2004) reads: “(1) Whoever unlawfully possesses substances which are prescribed as narcotics shall be fined or sentenced to a term of imprisonment not exceeding one year. ...”