FIRST SECTION
CASE OF MILOŠEVIĆ v. CROATIA
(Application no. 12022/16)
 
 
JUDGMENT
 
Art 4 P7 • Right not to be tried or punished twice • Disproportionate prejudice suffered through subjection to minor-offence and administrative (tax) proceedings for using prohibited oil as fuel • Excise duties increased one hundred times in latter proceedings • Two sets of proceedings not sufficiently linked in substance to form a coherent whole
 
STRASBOURG
31 August 2021
 
FINAL
 
30/11/2021
 
 
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Milošević v. Croatia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
 Péter Paczolay, President,
 Ksenija Turković,
 Krzysztof Wojtyczek,
 Alena Poláčková,
 Gilberto Felici,
 Erik Wennerström,
 Ioannis Ktistakis, judges,
and Renata Degener, Section Registrar,
Having regard to:
the application (no. 12022/16) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a national of Bosnia and Herzegovina, Mr Milan Milošević (“the applicant”), on 22 February 2016;
the decision to give notice of the application to the Croatian Government (“the Government”);
the decision by the Government of Bosnia and Herzegovina not to exercise their right to intervene in the proceedings in accordance with Article 36 § 1 of the Convention and Rule 44 § 1 of the Rules of Court;
the parties’ observations;
Having deliberated in private on 1 and 29 June 2021,
Delivers the following judgment, which was adopted on the last-mentioned date:
INTRODUCTION
1. The case concerns the applicant’s punishment in minor-offence proceedings for using prohibited heating oil as fuel in his truck and the subsequent imposition of excise duties for the use of that oil increased one hundred times. The applicant alleges that this infringed his right not to be tried and punished twice for the same offence. THE FACTS
2. The applicant was born in 1966 and lives in Bosanski Brod. He was represented by Mr D. Hećimović, a lawyer practising in Slavonski Brod. 3. The Government were represented by their Agent, Mrs Š. Stažnik. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. On 29 June 2012 an inspection by the authorised Vukovar Customs Office (Carinarnica Vukovar), in cooperation with the police, found that the fuel in a truck owned by the applicant was a special state-supported heating oil, which could not be used as fuel for motor vehicles. 6. On the same day, the Customs Office found the applicant guilty of a minor offence under the Excise Duties Act for the use of the heating oil in his truck contrary to section 74(2) of that Act and fined him with 4,800 Croatian kunas (HRK; approximately 640 euros (EUR)). The relevant part of the penalty notice (prekršajni nalog) reads as follows:
“The [applicant] ... is guilty... because on 29 June 2012 ... a truck owned by him... was using red tinted heating oil as fuel,
whereby he was acting in violation of section 74(2) of the Excise Duties Act,
punishable under section 80(3) of the Excise Duties Act...
... In accordance with section 34(3) of the Minor Offences Act, if the [applicant] fails to pay the fine in full or in part, it shall be collected by force, and if such enforcement is unsuccessful within a period of one year from initiation of the enforcement proceedings, the competent minor offences court shall convert the [fine] to imprisonment of 16 days...
... It has been established from the record of the inspection of the proper use of fuel ... and the record of sampling ... that [the applicant’s vehicle] used red tinted heating oil as fuel. In view of the above, the minor-offences committee of this Customs Office has established that the actions of the [applicant] fulfil all characteristics of the minor offence he has been charged with because, as the owner of a motor vehicle, he is responsible for the breach of the Excise Duties Act as stated in the operative part of this penalty notice... By his action, the [applicant] has violated section 74(2) of the Excise Duties Act, which provides that [heating] oils enumerated in section 73 of that Act could not be used as fuel in motor vehicles, boats or other machines, or for any purpose other than heating...”
7. Since the applicant did not appeal, this decision became final and he duly paid his fine. 8. On the same day, the Vukovar Customs Office sent the relevant record of the inspection of the proper use of fuel and the record of sampling to its administrative department in order to calculate the amount of tax surcharges due. 9. On 2 July 2012 the Osijek Customs Office (Carinarnica Osijek) ordered the applicant to pay HRK 123,000 (approximately EUR 16,700) in respect of excise duties, consisting of the amount of excise duties for the amount of oil in question increased one hundred times due to its illegal use on 29 June 2012. This decision was based on section 76(2) of the Excise Duties Act. 10. The applicant challenged this decision before the Ministry of Finance (Ministarstvo financija), and on 31 October 2013 the Ministry quashed the first-instance decision on the grounds that the quantity of the heating oil subject to excise duties had not been properly determined. 11. On 15 January 2014 the Osijek Custom Office rendered a fresh decision ordering the applicant payment of HRK 83,025 (approximately EUR 11,300), which consisted of the amount of excise duties for the amount of heating oil in question increased one hundred times due to its illegal use on 29 June 2012. This decision was upheld on appeal. 12. The applicant then lodged an administrative action, challenging the decision of the administrative authorities. 13. On 20 January 2015 the Osijek Administrative Court (Upravni sud u Osijeku) dismissed the applicant’s action. That decision was upheld on appeal by the High Administrative Court (Visoki upravni sud Republike Hrvatske). 14. Subsequently, the applicant lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) complaining, inter alia, that he had been punished twice for the same act, contrary to Article 4 of Protocol No. 7. 15. On 20 January 2016 the Constitutional Court declared the applicant’s complaint inadmissible as manifestly ill-founded, without providing a reply to his ne bis in idem complaint. RELEVANT LEGAL FRAMEWORK
16. The relevant provisions of the Excise Duties Act (Zakon o trošarinama, Official Gazette no. 83/09), as in force at the material time, read as follows:
Section 1
“This Act regulates the excise duties system of taxation of alcohol and alcoholic drinks, tobacco, energy sources and electricity ... which are released on the market within the territory of the Republic of Croatia.”
Section 73
“1. Gas oils subject to tariff codes ..., which are used as heating oil, must be labelled by a prescribed indicator ...”
Section 74
“1. Labelled gas oils referred to in section 73 of this Act may be used and sold solely for the purpose prescribed by this Act. 2. Labelled gas oils referred to in section 73 of this Act may not be used to power motor vehicles ... or for any other purpose except as heating oil.”
Section 76
“2. If it is established during an inspection of motor vehicles ..., that gas oils referred to in section 73 of this Act have been used for purposes and in the manner other than those prescribed by section 74 of this Act, the owner of the motor vehicle ... shall be charged with excise duties with respect to the quantities corresponding to the volume of the motor fuel tank, multiplied by a factor of one hundred...”
Excise duties minor-offences
Section 80
“1. A legal person shall be fined in the amount ... for an offence...
47.  if they do not use gas oils in the prescribed manner (section 74(2)) ... 3. A natural person shall also be fined for an offence referred to in paragraph 1, point... 47 of this section, in the amount between HRK 2,000 and HRK 10,000.”
17. In 2015 the Excise Duties Act was amended to exclude the increase by one hundred times of the amount of excise duties due in case of the use of gas oils contrary to that Act. According to the final proposal of the Amendments to the Excise Duties Act dated September 2015, such an increase of excise duties due had been contrary to the ne bis in idem principle and the Act was amended in order to comply with the jurisprudence of the Court of Justice of the European Union and best practices of other EU Member States. The provision on the excise duties minor offence relating to illegal use of gas oils as fuel in motor vehicles remained unchanged. 18. Section 34 of the Minor Offences Act (Prekršajni zakon, Official Gazette no. 107/07), as in force at the material time, provided that any unpaid fine imposed in minor-offence proceedings was to be executed by force and, if such enforcement failed, that it was to be replaced by imprisonment, calculating each day as HRK 300. THE LAW
ALLEGED VIOLATION OF ARTICLE 4 of protocol no. 7 to THE CONVENTION
19. The applicant complained that he had been tried and punished twice for the same offence contrary to Article 4 of Protocol No. 7 to the Convention, the relevant part of which reads as follows:
“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.”
Admissibility
20. The Government submitted that the applicant had failed to exhaust domestic remedies since he had not raised his ne bis in idem complaint before the administrative authorities deciding his case. 21. The applicant disagreed. He maintained that he had raised the said argument in his constitutional complaint. He further pointed out that a copy of the Court’s judgment in the case Ruotsalainen v. Finland (no. 13079/03, 16 June 2009), which was identical to his, had formed part of his case file before the Administrative Court, as submitted by the Government. The administrative authorities must have therefore been aware of his ne bis in idem grievance. 22. The Court notes that the applicant expressly raised a complaint under Article 4 Protocol No. 7 in his constitutional complaint and that he received no reply. The applicant thereby provided the national authorities with the opportunity which is in principle intended to be afforded to Contracting States by Article 35 § 1 of the Convention, namely that of putting right the violations alleged against them (see, for instance, Arps v. Croatia, no. 23444/12, § 20, 25 October 2016). The Government’s object must therefore be dismissed. 23. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ arguments

24. The applicant maintained that both the minor-offence and the subsequent administrative (tax) proceeding concerned the same event and had been based on the same legal provision. The fact that the excise duties imposed on him had been increased one hundred times proved that the said measure had been criminal in nature and had not been solely aimed at prevention of tax evasion. 25. The Government maintained that the two proceedings constituted a single integrated response to the unlawful conduct by the applicant. The minor-offence proceedings were primarily aimed at protection of traffic safety since heating oil was damaging to the engine of the vehicle that used it, whereas the administrative (tax) proceedings were aimed at collecting excise duties and therefore punishing and preventing tax evasion. Since heating oil was significantly cheaper than diesel or petrol fuel, due to a number of fiscal and parafiscal burdens the latter entailed, using heating oil in vehicles constituted a form of tax evasion because the unlawful use of heating oil to power motor vehicles caused the State to lose revenue it would otherwise have made by selling diesel or petrol fuel to drivers. 26. The Government further asserted that the two proceedings had been a foreseeable consequence of the applicant’s illegal behaviour and that there had been no duplication in the collection and assessment of evidence, primarily because the minor-offence penalty notice had been issued in a summary procedure. Moreover, the penalties for the two proceedings had been integrated on the level of the law and the applicant’s fine in the minor‑offence proceedings had been only slightly above the legal minimum. Finally, in the Government’s view, the two sets of proceedings had also been sufficiently connected in time since the administrative (tax) proceedings were initiated on the next working day following the applicant had been issued the minor-offence penalty notice.

Article of the Convention at issue: Article 4
Outcome: violation