Article 45 - Freedom of movement and of residence
Article 49 - Principles of legality and proportionality of criminal offences and penalties
Key facts of the case:
The constitutional complaint was filed by a Slovenian citizen, the owner of the boat who was fined for entering the territorial sea of the Republic of Croatia without border control. During that time, he was in the territorial sea of the Republic of Croatia engaged in commercial fishing with a trawl net on a prohibited area, without having previously obtained a permit or fishing license issued by the Republic of Croatia. The event took place on 25 January 2021 in the Gulf of Piran/Savudrijska Vala, around the still undefined border in the Adriatic Sea between the Republic of Croatia and the Republic of Slovenia. The identity of the persons on the boat could not be determined on the spot due to the intervention of the Slovenian police, so the sanctions were imposed on the person registered in the Business Register of the Republic of Slovenia as the "vessel owner". The first-instance court found the applicant responsible for two misdemeanours. The applicant argues that the disputed first instance decision violated his right to a fair trial and the principle of legality.
Key legal question raised by the Court:
The maritime border between Slovenia and Croatia is disputed because the narrow part of the Adriatic Sea in the gulf is unilaterally claimed by both Croatia and Slovenia.
Outcome of the case:
The Constitutional Court accepted the reasoning of the disputed first instance decision rendered in accordance with the Declaration on the Inter-State Relations between Croatia and Slovenia, which took the position that the border line at sea in the Gulf of Piran should be established according to the criterion of equidistance (equal distance from the coast) in the middle of the bay, and while that line at sea is not established, the States are obliged to refrain from any form of exercise of power across the centreline at sea in the gulf. Therefore, the applicant, as a professional fisherman, must and could have been aware of the different positions of the neighbouring states regarding the state border in Savudrijska Vala, and that by crossing the centreline in that part he would expose himself to committing an offence. Following this reasoning, the Constitutional Court found the applicant’s complaints about the violation of the principle of legality as not founded.
However, dissenting opinions were made by two constitutional judges who expressed their concerns about the Constitutional Court decision failing to take into consideration the “EU aspects” of this case. They argued that the territory (i.e. the "territorial sea of the Republic of Croatia") is an integral part of the misdemeanour offence for which the applicant has been declared responsible, as well as that the content of that term is disputed between neighbouring states. Therefore, they believe that the vagueness of the regulations on the basis of which sanction is imposed prevents a fair trial in the sense of Article 29 of the Constitution of the Republic of Croatia and Article 6 of the European Convention, until the term is undisputedly defined. They further emphasized that failure of two Member States in fulfilling their contractual obligations taken over within the framework of the EU legal order should not have negative consequences on individuals who have an interest in exercising their fundamental right of freedom of movement in accordance with the conditions set by the EU legal order.
The Charter of Fundamental Rights of the EU clearly stipulates that any criminal sanction for an act that falls within the scope of the competence of the EU legal order, and this is undoubtedly the case here, can only follow if the offense of a criminal nature is legally prescribed with a high degree of precision. The misdemeanour of unauthorized crossing of the state border in the context of freedom of movement on the territory of the EU when there is no consent regarding the state border in accordance with the assumed obligations of the Member States raises a number of questions about its application and thus its sufficient legal determinability.
Povelja o temeljnim pravima EU jasno određuje da bilo kakva kaznenopravna sankcija za neko postupanje koje ulazi u doseg regulatorne nadležnosti EU pravnog poretka, a to je ovdje nesumnjivo slučaj, može slijediti samo ako je djelo kaznenopravne prirode zakonski propisano s visokim stupnjem preciznosti. Prekršajno djelo neovlaštenog prelaska državne granice u kontekstu slobode kretanja na teritoriju EU kada ta državna granica nije usuglašena sukladno preuzetim obvezama država članica povlači niz pitanja o svojoj primjeni pa tako i svojoj dovoljnoj zakonskoj određenosti.
