THIRD SECTION

CASE OF MILENKOVIĆ v. SERBIA

(Application no. 50124/13)

JUDGMENT

STRASBOURG

1 March 2016

This judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
 MILENKOVIĆ v. SERBIA JUDGMENT 1

In the case of Milenković v. Serbia,

The European Court of Human Rights (Third Section), sitting as a
Chamber composed of:
Luis López Guerra, President,
Helena Jäderblom,
George Nicolaou,
Helen Keller,
Branko Lubarda,
Pere Pastor Vilanova,
Alena Poláčková, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having deliberated in private on 9 February 2016,
Delivers the following judgment, which was adopted on that date:

PROCEDURE
1. The case originated in an application (no. 50124/13) against the
Republic of Serbia lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Serbian national, Mr Momčilo Milenković (“the
applicant”), on 12 June 2013.
2. The applicant was represented by Mr Z. Đušić, a lawyer practising in
Leskovac. The Serbian Government (“the Government”) were represented
by their Agent, Mrs V. Rodić.
3. The applicant alleged that his right not to be tried twice had been
violated.
4. On 15 January 2014 the application was communicated to the
Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1969 and lives in Leskovac.

6. On 17 October 2006 the Leskovac police informed the local minor-
offence judge and the public prosecutor’s office about a violent incident
between the applicant and a certain R.C. that had occurred on
12 October 2006 in a neighbourhood of Leskovac.
2 MILENKOVIĆ v. SERBIA JUDGMENT

A. Conviction of the applicant for a misdemeanour

7. By a decision of 6 November 2007 the misdemeanour court judge in

Leskovac (sudija Opštinskog organa za prekršaje u Leskovcu) found that at
about 5.30 p.m. on 12 October 2006 in Leskovac R.C. had verbally insulted
the applicant’s children, and the applicant had then punched him several
times on the head and injured him. The judge concluded that these actions
had been in breach of public order and peace and had thus been contrary to
Article 6(3) of the Public Order Act 1992 (see paragraph 21 below under
Relevant domestic law and practice). The relevant part of the decision reads:
“Defendant[s] R.C. ... and Momčilo Milenković are guilty in that at about 5.30 p.m.
on 12 October 2006, in Subotička street in Leskovac, [the former first swore and
insulted the applicant’s children], while the latter punched R.C. several times on the
head and injured him ...”
8. Each of them was ordered to pay a fine in the amount of 4,000
Serbian dinars (RSD) plus RSD 700 for costs (at that time equivalent to
approximately 60 euros (EUR) in total), which in the event of non-
compliance would be converted into a prison term of eight days.

B. Criminal prosecution of the applicant

9. After an investigation had been conducted, on 4 April 2007

the Leskovac Public Prosecutor’s Office (“the LPPO”) charged the
applicant with the criminal offence of inflicting grievous bodily harm on
R.C. in connection with the above incident, contrary to Article 121 § 2 of
the Criminal Code 1998. The LPPO, as well as the applicant and his family
in the capacity of private prosecutors, lodged separate indictments against
R.C. for several offences. All the indictments were joined in the same
proceedings before the Leskovac Municipal Court.
10. In a judgment of 13 April 2011 the Leskovac Municipal Court found
the applicant guilty as charged and sentenced him to three months’
imprisonment. R.C. was found guilty and fined for insulting the applicant’s
family and causing minor bodily injuries to the applicant’s mother. The
court ordered the applicant to pay RSD 14,739 in court costs, while each
party was to cover its own costs and expenses.
The relevant part of the decision reads:
“Defendant Milenković Momčilo ... is guilty in that
at about 4.00 and 4.30 p.m on 12 October 2006 in Subotička Street ... he punched
[R.C.] on the left side of the face and, after knocking R.C. down, he continued
punching him in the head, thereby causing him a number of grievous bodily injuries
dangerous for life, such as: bruising of both eyelids (black eye), bruising of the left
cornea, and nose abrasions ...”
 MILENKOVIĆ v. SERBIA JUDGMENT 3

11. The applicant appealed, arguing, inter alia, that he had already been
punished in respect of the same incident by the Leskovac misdemeanour
judge, with the result that the principle of ne bis in idem had been violated
(see paragraph 18 below).
12. On 20 March 2012 the Niš Appeals Court upheld the judgment in
respect of the applicant and dismissed the charges against R.C. as statute-
barred. As regards the principle of ne bis in idem, the court held that the
applicant had been found guilty of a misdemeanour against public order and
peace in the misdemeanour proceedings, whereas he had been convicted of
the criminal offence of grievous bodily harm in the criminal proceedings.
According to the court, the descriptions of the acts sanctioned therefore
clearly differed.
13. On 19 September 2012, the Leskovac Basic Court converted the
prison sentence to house arrest without electronic monitoring.
14. On 29 November 2012 the Leskovac Basic Court amnestied the
applicant at his request, finding that the conditions for a statutory amnesty
were applicable (see paragraph 22 below).

C. Constitutional Avenue

15. In a subsequent constitutional appeal lodged on 25 May 2012 the

applicant reiterated that he had been tried and punished twice for the same
offence, in breach of Article 34 § 4 of the Constitution (see paragraph 13
below).
16. On 20 May 2013 the Constitutional Court, referring to the reasoning
of the Niš Appeals Court as “fully acceptable from the constitutional point
of view” (see paragraph 12 above), dismissed the applicant’s appeal as ill-
founded. The decision of the Constitutional Court was served on the
applicant’s representative on 29 May 2013.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Relevant provisions concerning the principle of ne bis in idem

17. The Constitution of the Republic of Serbia (published in the Official

Gazette of the Republic of Serbia - OG RS – no. 98/06) guarantees, under
Article 34 § 4, that no person may be prosecuted or sentenced for a criminal
offence for which he has been acquitted or convicted by a final judgment,
for which the charges have been dropped or criminal proceedings have been
discontinued by a final decision. The same prohibitions should be applicable
to all other proceedings conducted for any other act punishable by law.
18. The language of Article 6 § 1 of the Criminal Procedure Code
(Zakon o krivičnom postupku, published in the Official Gazette of the SRY,
4 MILENKOVIĆ v. SERBIA JUDGMENT

nos. 70/01 and 68/02 and OG RS nos. 58/04, 85/05, 115/05, 46/06, 49/07
and 122/08), corresponds to Article 34 § 4 of the Constitution 2006 referred
to above.
19. According to Article 8 of the Misdemeanours Act 2005 (Zakon o
prekršajima, published in OG RS nos. 101/05, 116/08 and 111/09) no one
shall be sanctioned in minor offences proceedings two or more times for the
same misdemeanour, nor may a person be punished for a misdemeanour if
he or she has been convicted by a final decision in criminal or commercial
proceedings of an offence which has the same essential elements as the
misdemeanour in question.

B. Provisions concerning the relevant offences

20. Article 121 § 2 of the Criminal Code of the Republic of Serbia 2005
(Krivični zakonik Republike Srbije, published in OG RS, nos. 85/2005,
88/2005, 107/2005, 72/2009, 111/2009, 121/2012 and 104/2013) provides
that “whoever inflicts bodily injury on another or impairs another’s health
shall be sentenced to imprisonment for a term of not less than one year and
not exceeding eight years.” Under Article 50 § 3 the competent court could
impose a sanction below the prescribed minimum in the event that there
were mitigating circumstances.
21. Article 6(3) of the Public Order Act (Zakon o javnom redu i miru,
published in OG RS nos. 851/92, 53/93, 67/93, 48/94, 85/05 and 101/05)
provides that anyone who disturbs the peace in a public place by verbally or
physically attacking another person, or by inciting or participating in a fight,
is committing a misdemeanour against public order and shall be fined in an
amount up to RSD 30,000 or to a term of imprisonment not exceeding sixty
days.

C. Amnesty law

22. The Amnesty Act (Zakon o amnestiji, published in OG RS

no. 107/12, came into force on 17 November 2012), stipulated, inter alia,
that all first offenders who received a prison sentence of up to three months
shall be exempted from serving their prison sentence.

D. Practice of domestic courts concerning the principle of ne bis in

idem

23. On 26 March 2014 and 12 June 2014, the Constitutional Court,

sitting in chambers of seven judges, examined complaints concerning the ne
bis in idem principle in two cases similar to the present one (see
Už. 1207/2011 and Už. 1285/2012). In its reasoning the court directly relied
on this Court’s case-law established in Engel and Others v. the Netherlands,
 MILENKOVIĆ v. SERBIA JUDGMENT 5

8 June 1976, Series A no. 22; Sergey Zolotukhin v. Russia ([GC],

no. 14939/03, ECHR 2009, Maresti v. Croatia, no. 55759/07, 25 June 2009;
and Muslija v. Bosnia and Herzegovina, no. 32042/11, 14 January 2014.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7 TO

THE CONVENTION

24. The applicant complained that he had been tried and punished twice
for the same offence in respect of an incident that had occurred on
12 October 2006. He relied on Article 4 of Protocol No. 7 to the
Convention, 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.
2. The provisions of the preceding paragraph shall not prevent the reopening of the
case in accordance with the law and penal procedure of the State concerned, if there is
evidence of new or newly discovered facts, or if there has been a fundamental defect
in the previous proceedings, which could affect the outcome of the case.
3. No derogation from this Article shall be made under Article 15 of the
Convention.”
25. The Government contested that argument.

A. Admissibility

26. The Court notes that the application is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. It further notes
that it is not inadmissible on any other grounds. It must therefore be
declared admissible.

B. Merits

1. The parties’ submissions

27. The applicant complained under Article 4 of Protocol No. 7 that,
after he had already been convicted and sentenced in misdemeanour
proceedings for disorderly acts committed on 12 October 2006, he had been
tried, convicted and sentenced again for the same offence in criminal
proceedings.
6 MILENKOVIĆ v. SERBIA JUDGMENT

28. The Government accepted that the applicant’s conviction in

misdemeanour proceedings on 6 November 2007 had been “criminal” in
nature. However, they maintained that the offences for which the applicant
had been prosecuted should be regarded as distinct, both factually and
legally.
29. On the facts, the Government claimed that in the misdemeanour
proceedings the applicant had been found guilty of disturbing public order
and peace because he had verbally and physically attacked his cousin R.C.
The purpose of the sanction in those proceedings had been to protect the
well-being of citizens and to safeguard public order and the peace in a
broader sense. Hence, the misdemeanour judge was focused on the evidence
to establish that offence, namely the discussion and fight and how they had
affected the public. Essentially, the fact that the applicant had caused R.C. a
number of grievous bodily injuries was not covered by the sanction ordered
by the misdemeanour authority. On the other hand, the criminal prosecution
of the applicant referred to a physical attack on R.C. that had caused him
grievous bodily injury. This crime protects bodily integrity, and the criminal
proceedings should have established whether the injuries had been caused or
not, regardless of the conduct of the applicant.
30. As to the legal characterisation, the Government acknowledged that
the offences were the same in their actus reus, both offences resulting from
the fact that the applicant had struck R.C. several times. They differed in
their consequences however. The definition of misdemeanour does not
include the infliction of bodily injury, while the consequence and one of the
essential elements of the crime in question is the incurred consequence
(bodily injuries), irrespective of the action leading to such a consequence.
Therefore, the present case should be distinguished from the Tsonev case
(see Tsonyo Tsonev v. Bulgaria (no. 2), no. 2376/03, 14 January 2010),
because one offence does not embrace the other in its “entirety”.

2. The Court’s assessment

(a) Whether the first penalty was criminal in nature

31. The Court observes that on 6 November 2007 the applicant was
fined in proceedings conducted under the Misdemeanours Act 2005 which
were regarded as “misdemeanours” rather than “criminal offences” under
the Serbian legal classification. It must therefore be determined whether
these proceedings concerned a “criminal” matter within the meaning of
Article 4 of Protocol No. 7.
32. The Court reiterates that the legal characterisation of the procedure
under national law cannot be the sole criterion of relevance for the
applicability of the principle of non bis in idem under Article 4 § 1 of
Protocol No. 7. Otherwise, the application of this provision would be left to
the discretion of the Contracting States to a degree that might lead to results
 MILENKOVIĆ v. SERBIA JUDGMENT 7

incompatible with the object and purpose of the Convention. The notion of
“penal procedure” in the text of Article 4 of Protocol No. 7 must be
interpreted in the light of the general principles concerning the
corresponding words “criminal charge” and “penalty” in Articles 6 and 7 of
the Convention respectively (see, as most recent, Zolotukhin, cited above,
with further references therein).
33. The Court’s established case-law sets out three criteria, commonly
known as the “Engel criteria” (see Engel and Others, cited above), to be
considered in determining whether or not there was a “criminal charge”.
The first criterion is the legal classification of the offence under national
law, the second is the very nature of the offence, and the third is the degree
of severity of the penalty that the person concerned risks incurring. The
second and third criteria are alternative and not necessarily cumulative.
This, however, does not exclude a cumulative approach where separate
analysis of each criterion does not make it possible to reach a clear
conclusion as to the existence of a criminal charge (see Jussila v. Finland
[GC], no. 73053/01, §§ 30-31, ECHR 2006-XIV, and Ezeh and Connors
v. the United Kingdom [GC], nos. 39665/98 and 40086/98, §§ 82-86, ECHR
2003-X).
34. The Court notes that, regarding the first criterion, the domestic legal
classification of the offence at issue was a “misdemeanour” under
Article 6(3) of the Public Order Act 1992 (see paragraph 21 above).
Nevertheless, the Court has previously found that the sphere defined in the
other similar legal systems as “administrative”/”misdemeanour”, including
the protection of public order, embraces certain offences that have a
criminal connotation but are too trivial to be governed by criminal law and
procedure (see Zolotukhin, cited above, § 54 with further references therein;
see also Maresti and Muslija, both cited above, § 58 and § 27 respectively).
35. By its nature, the inclusion of the misdemeanour at issue in the
Public Order Act 1992 served to guarantee the protection of human dignity
and public order, values and interests that normally fall within the sphere of
protection of criminal law. This misdemeanour was imposed by general
legal provision applying to all citizens rather than towards a group
possessing a special status. Any reference to the “minor” nature of the acts
does not, in itself, exclude its classification as “criminal” in the autonomous
sense of the Convention, as there is nothing in the Convention to suggest
that the criminal nature of an offence, within the meaning of the Engel
criteria, necessarily requires a certain degree of seriousness (see Ezeh, cited
above, § 104). Lastly, the Court considers that the fine is not intended as
pecuniary compensation for damage, but that the primary aims in
establishing the offence in question were punishment and deterrence of
reoffending, which are recognised as further characteristic features of
criminal penalties (ibid., §§ 102 and 105).
8 MILENKOVIĆ v. SERBIA JUDGMENT

36. As to the degree of severity of the measure, it is determined by

reference to the maximum potential penalty for which the relevant law
provides. The actual penalty imposed is relevant to the determination but it
cannot diminish the importance of what was initially at stake (ibid., § 120).
The Court observes that at the relevant time that Article 6(3) of the Public
Order Act 1992 provided for sixty days’ imprisonment as the maximum
penalty, although in fact the applicant was eventually sentenced to a fine in
the amount of RSD 4,000. As the Court has confirmed on many occasions,
in a society subscribing to the rule of law, where the penalty liable to be and
actually imposed on an applicant involves loss of liberty, there is a
presumption that the charges against the applicant are “criminal”, a
presumption which can be rebutted in full only exceptionally, and only if
the deprivation of liberty cannot be considered “appreciably detrimental”
given their nature, duration or manner of execution (see Engel, § 82, and
Ezeh and Connors, § 126, both cited above). In the present case the Court
does not discern any such exceptional circumstances.
37. Therefore, in the present case, the Court considers that it is clear that
both sets of proceedings are to be regarded as criminal for the purposes of
Article 4 of Protocol No. 7 to the Convention. The parties also find this to
be undisputed.

(b) Whether the offences for which the applicant was prosecuted were the
same (idem)
38. The Court acknowledged in the case of Zolotukhin (cited above) the
existence of several approaches to the question whether the offences for
which an applicant was prosecuted were the same. The Court presented an
overview of the existing three different approaches to this question. It found
that the existence of a variety of approaches engendered legal uncertainty
incompatible with the fundamental right not to be prosecuted twice for the
same offence. It was against this background that the Court provided in that
case a harmonised interpretation of the notion of the “same offence” for the
purposes of Article 4 of Protocol No. 7. The relevant principles in that
respect read as follows:
“78. The Court considers that the existence of a variety of approaches to
ascertaining whether the offence for which an applicant has been prosecuted is indeed
the same as the one of which he or she was already finally convicted or acquitted
engenders legal uncertainty incompatible with a fundamental right, namely the right
not to be prosecuted twice for the same offence. It is against this background that the
Court is now called upon to provide a harmonised interpretation of the notion of the
‘same offence’ – the idem element of the non bis in idem principle – for the purposes
of Article 4 of Protocol No. 7. While it is in the interests of legal certainty,
foreseeability and equality before the law that the Court should not depart, without
good reason, from precedents laid down in previous cases, a failure by the Court to
maintain a dynamic and evolutive approach would risk rendering it a bar to reform or
improvement (see Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 56,
ECHR 2007-...).
 MILENKOVIĆ v. SERBIA JUDGMENT 9

79. An analysis of the international instruments incorporating the non bis in idem
principle in one or another form reveals the variety of terms in which it is couched.
Thus, Article 4 of Protocol No. 7 to the Convention, Article 14 § 7 of the UN
Covenant on Civil and Political Rights and Article 50 of the Charter of Fundamental
Rights of the European Union refer to the ‘[same] offence’ (‘[même] infraction’), the
American Convention on Human Rights speaks of the ‘same cause’ (‘mêmes faits’),
the Convention Implementing the Schengen Agreement prohibits prosecution for the
‘same acts’ (‘mêmes faits’), and the Statute of the International Criminal Court
employs the term ‘[same] conduct’ (‘[mêmes] actes constitutifs’) . The difference
between the terms ‘same acts’ or ‘same cause’ (‘mêmes faits’) on the one hand and the
term ‘[same] offence’ (‘[même] infraction’) on the other was held by the Court of
Justice of the European Communities and the Inter-American Court of Human Rights
to be an important element in favour of adopting the approach based strictly on the
identity of the material acts and rejecting the legal classification of such acts as
irrelevant. In so finding, both tribunals emphasised that such an approach would
favour the perpetrator, who would know that, once he had been found guilty and
served his sentence or had been acquitted, he need not fear further prosecution for the
same act...
80. The Court considers that the use of the word ‘offence’ in the text of Article 4 of
Protocol No. 7 cannot justify adhering to a more restrictive approach. It reiterates that
the Convention must be interpreted and applied in a manner which renders its rights
practical and effective, not theoretical and illusory. It is a living instrument which
must be interpreted in the light of present-day conditions (see, among other
authorities, Tyrer v. the United Kingdom, 25 April 1978, § 31, Series A no. 26, and
Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 75, ECHR
2002-VI). The provisions of an international treaty such as the Convention must be
construed in the light of their object and purpose and also in accordance with the
principle of effectiveness (see Mamatkulov and Askarov v. Turkey [GC], nos.
46827/99 and 46951/99, § 123, ECHR 2005-I).
81. The Court further notes that the approach which emphasises the legal
characterisation of the two offences is too restrictive on the rights of the individual,
for if the Court limits itself to finding that the person was prosecuted for offences
having a different legal classification it risks undermining the guarantee enshrined in
Article 4 of Protocol No. 7 rather than rendering it practical and effective as required
by the Convention (compare Franz Fischer, cited above, § 25).
82. Accordingly, the Court takes the view that Article 4 of Protocol No. 7 must be
understood as prohibiting the prosecution or trial of a second ‘offence’ in so far as it
arises from identical facts or facts which are substantially the same.
83. The guarantee enshrined in Article 4 of Protocol No. 7 becomes relevant on
commencement of a new prosecution, where a prior acquittal or conviction has
already acquired the force of res judicata. At this juncture the available material will
necessarily comprise the decision by which the first ‘penal procedure’ was concluded
and the list of charges levelled against the applicant in the new proceedings. Normally
these documents would contain a statement of facts concerning both the offence for
which the applicant has already been tried and the offence of which he or she stands
accused. In the Court’s view, such statements of fact are an appropriate starting point
for its determination of the issue whether the facts in both proceedings were identical
or substantially the same. The Court emphasises that it is irrelevant which parts of the
new charges are eventually upheld or dismissed in the subsequent proceedings,
because Article 4 of Protocol No. 7 contains a safeguard against being tried or being
10 MILENKOVIĆ v. SERBIA JUDGMENT

liable to be tried again in new proceedings rather than a prohibition on a second

conviction or acquittal...
84. The Court’s inquiry should therefore focus on those facts which constitute a set
of concrete factual circumstances involving the same defendant and inextricably
linked together in time and space, the existence of which must be demonstrated in
order to secure a conviction or institute criminal proceedings ...”
39. Turning to the facts of the present case, the Court observes that the
applicant was accused of the following:
(i) in the misdemeanour proceedings, for punching R.C. several times on
the head and injuring him; and
(ii) in the criminal proceedings, for punching R.C. on the head and
thereby causing him grievous bodily harm.
40. The events described in the decisions adopted in both sets of
proceedings took place during a fight in Subotička Street in Leskovac on
12 October 2006. Hence, in so far as both sets of proceedings concerned the
above charges, the applicant was prosecuted and sentenced twice on the
same counts involving the same defendant and inextricably linked together
within the same space and time frame, regardless of the fact that the
decision of the Misdemeanour Court stated that the event took place at
about 5.30 p.m, while the criminal court stated it occurred at about
4-4.30 p.m.
41. As regards the Government’s pleading that the definition of a
misdemeanour under Article 6(3) of the Public Order Act 1992 does not, as
such, include inflicting bodily harm, whereas this element is crucial for the
criminal offence of inflicting grievous bodily harm under Article 121 § 2 of
the Criminal Code 2005, the Court notes that the Misdemeanour Court
expressly stated that the applicant was guilty of, inter alia, striking and
injuring R.C. Regardless of the legal characterisation of the offence, the
physical attack, which caused injuries to R.C., thus constituted an element
of the misdemeanour of which the applicant was found guilty in the
domestic proceedings (in this connection, see Maresti, cited above, § 63). In
the criminal proceedings the applicant was again tried and found guilty of
causing grievous bodily harm to R.C. It is therefore obvious that both
decisions concerned exactly the same event and the same acts.
42. The facts constituting the two offences must therefore be regarded as
substantially the same for the purposes of Article 4 of Protocol No. 7.

(c) Whether there was a duplication of proceedings (bis)

43. The aim of Article 4 of Protocol No. 7 is to prohibit the repetition of
criminal proceedings that have been concluded by a “final” decision.
According to the Explanatory Report to Protocol No. 7, which itself refers
back to the European Convention on the International Validity of Criminal
Judgments, a “decision is final ‘if, according to the traditional expression, it
has acquired the force of res judicata. This is the case when it is irrevocable,
 MILENKOVIĆ v. SERBIA JUDGMENT 11

that is to say when no further ordinary remedies are available or when the
parties have exhausted such remedies or have permitted the time-limit to
expire without availing themselves of them’”. This approach is well
entrenched in the Court’s case-law (see, for example, Zolotukhin, cited
above, § 107, with further references therein).
44. Decisions against which an ordinary appeal lies are excluded from
the scope of the guarantee contained in Article 4 of Protocol No. 7 as long
as the time-limit for lodging such an appeal has not expired. On the other
hand, extraordinary remedies such as a request for reopening of proceedings
or an application for extension of the expired time-limit are not taken into
account for the purposes of determining whether the proceedings have
reached a final conclusion. Although these remedies represent a
continuation of the first set of proceedings, the “final” nature of the decision
does not depend on their being used. It is important to point out that
Article 4 of Protocol No. 7 does not preclude the reopening of proceedings,
as stated clearly by the second paragraph of Article 4 (ibid., § 108).
45. In the present case, the Court observes that both sets of proceedings
were instituted on the basis of the police report of 17 October 2006 on the
incident (see paragraph 6 above). The decision in the proceedings was
adopted on 6 November 2007 and the parties did not avail themselves of an
appeal. Hence, after the time-limit for the appeal had expired, the decision
has acquired the force of res judicata.
46. In the meantime, the criminal proceedings commenced on
4 April 2007, and the two proceedings were conducted concurrently for a
while. At the time the misdemeanour conviction acquired the force of res
judicata, the criminal proceedings were pending before the first-instance
court. In these circumstances, the Court considers that the Municipal Court
should have terminated the criminal proceedings following the delivery of a
“final” decision in the first proceedings (see Muslija, cited above, § 37, with
further reference therein). Furthermore, it is to be noted that in his appeal
against his conviction by the Municipal Court the applicant complained of a
violation of the non bis in idem principle. However, the appellate court
upheld the applicant’s conviction in respect of the same offence for which
he had already been punished by the Misdemeanour Court. Lastly, when
deciding the applicant’s appeal the Constitutional Court failed to bring its
case-law in line with this Court’s approach taken in the Zolotukhin case. In
these circumstances, the Court finds that the domestic authorities permitted
the duplication of criminal proceedings to be conducted in the full
knowledge of the applicant’s previous conviction for the same offence.
47. Lastly, the Court emphasises that the fact that the applicant was
eventually amnestied in the criminal proceedings had no bearing on his
claim that he was prosecuted, tried and punished for the offence for a
second time.
12 MILENKOVIĆ v. SERBIA JUDGMENT

(d) Conclusion
48. In the light of the foregoing, the applicant was “convicted” in
misdemeanour proceedings, which can be likened to “criminal proceedings”
within the autonomous Convention meaning of this term. After this
“conviction” became final and despite his appeal based on the ne bis in idem
principle, the applicant was found guilty of a criminal offence which related
to the same conduct as that punished in the misdemeanour proceedings, and
substantially the same facts. The Constitutional Court failed to apply the
principles established in the Zolotukhin case and thus to correct the
applicant’s situation.
49. There has accordingly been a violation of Article 4 of Protocol
No. 7.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

50. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford just satisfaction to
the injured party.”

A. Damage

51. The applicant claimed RSD 720,000 (6,218 euros (EUR)) in respect
of non-pecuniary damage. As regards the amount, the applicant linked it to
the amount that a person unlawfully detained for ninety days would receive
on account of non-pecuniary damage.
52. The Government considered that the applicant’s claim for non-
pecuniary damages should be rejected as he had been amnestied. Were the
Court to have another view, the Government considered this amount
excessive.
53. The Court considers that the applicant has suffered some non-
pecuniary damage which cannot be sufficiently compensated for by a mere
finding of a violation of the Convention. It therefore awards the applicant
EUR 1,000 in respect of non-pecuniary damage.

B. Costs and expenses

54. The applicant firstly claimed RSD 14,739 (EUR 131) for the costs
and expenses requested by the criminal court (see paragraph 10 above). The
applicant also claimed a total of approximately EUR 8,000 for the costs and
expenses incurred before the domestic courts, as well as for those incurred
before the Court. The applicant submitted a fees agreement in this respect.
 MILENKOVIĆ v. SERBIA JUDGMENT 13

55. The Government considered the amount claimed for costs and
expenses excessive as to quantum. The amount paid to the criminal court
has not been contested. As regards the other expenses, the Government
contested that only some of the expenses had actually been incurred, as well
as certain expenses which were incurred due to the applicant’s private
indictment. They also contested the exchange rate applied by the applicant.
56. According to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been shown
that these have been actually and necessarily incurred and are reasonable as
to quantum. That is, the applicant must have paid them, or be bound to pay
them, pursuant to a legal or contractual obligation, and they must have been
unavoidable in order to prevent the violation found or to obtain redress. In
the present case, regard being had to the documents in its possession and the
above criteria, the Court considers it reasonable to award the applicant the
sum of EUR 2,000 for the costs and expenses incurred domestically, as well
as the costs and expenses incurred before the Court.

C. Default interest

57. The Court considers it appropriate that the default interest rate
should be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 4 of Protocol No. 7 to the
Convention;

3. Holds
(a) that the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts, to be converted
into the currency of the respondent State, at the rate applicable at the
date of settlement:
(i) EUR 1,000 (one thousand euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,000 (two thousand euros), plus any tax that may be
chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amounts at a
14 MILENKOVIĆ v. SERBIA JUDGMENT

rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 1 March 2016, pursuant to

Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena Tsirli Luis López Guerra

Deputy Registrar President