Jasmina PUNDA against Serbia
On September 8, 2026, the European Court of Human Rights (hereinafter: the Court) issued a decision in the case, and on October 1 of the same year Jasmine Punda against Serbia, number 34789/23.
It's a decisionbroughtthree-member Board.
The case refers to an alleged violation of the principlene bis in idem, because after the dismissal of the criminal complaint, misdemeanor proceedings were initiated against the applicant based on the same factual situation, in which she was declared responsible and fined. The court dismissed the petition asratione materiae incompatible with the provisions of the Convention. |
THE CIRCUMSTANCES CASES
On October 5, 2012, the police administration in Smederevo filed a criminal complaint against the applicant (hereinafter: the applicant), Mrs. Jasmine Punda, and another person to the Basic Public Prosecutor's Office in Smederevo for the criminal offense of illegal trade in co-perpetration from Article 243, paragraph 1, in connection with Article 33 of the Criminal Code.
On April 20, 2015, the Customs House in Kragujevac submitted a request for initiation of misdemeanor proceedings to the Misdemeanor Court in Smederevo against the same persons for misdemeanors from Article 292, paragraph 1, item 1) in connection with Article 297 of the Customs Law of the Republic of Serbia.
The Basic Public Prosecutor's Office in Smederevo was established by the decision of Kt. 1503/12 of July 18, 2013 rejected the criminal complaint of the Police Administration in Smederevo due to the absence of reasonable suspicion that the suspects committed the reported or any other criminal offense.
After that, the Misdemeanor Court in Smederevo, in a proceeding based on the same factual situation, on May 7, 2018, rendered a verdict Pr. no. 3089/15 by which he declared the applicant guilty and imposed a fine of RSD 339,500.00 for the misdemeanor. The misdemeanor appellate court in Belgrade ruled that Prž. 12731/18 of August 30, 2018 confirmed the first-instance verdict.
The applicant submitted a constitutional appeal against both verdicts to the Constitutional Court claiming that her right to a fair trial, the right to defense and the right to present evidence in her own favor, to question the witnesses of the prosecution and to demand that, under the same conditions as the witnesses of the prosecution and in his presence, the witnesses of the defense are also questioned, the right to legal certainty and the right to equal protection of rights.
The Constitutional Court dismissed the applicant's constitutional appeal as clearly unfounded by decision Už-12678/2018 of March 8, 2023.
COMPLAINTS APPLICANTS AND THE PROCEDURE BEFORE THE COURT
The applicant submitted a petition to the Court on September 12, 2023.
In the petition, she complained about the violation of her rights from Article 4 of Protocol No. 7 to the Convention, because prior to the misdemeanor proceedings in which she was declared responsible and fined, criminal proceedings were conducted in the same matter, which ended with the dismissal of the criminal charges.
THE DECISION THE COURT
The Court, first of all, reminded that Article 4 of Protocol No. 7 to the Convention aims to prohibit the same matter from being tried twice.
The Court also reminded that in its practice it has consistently taken the position that the suspension of criminal proceedings by the prosecutor does not constitute either a conviction or an acquittal, and that in such circumstances Article 4 of Protocol No. 7 does not apply, unless the prosecutor simultaneously imposed a measure of a punitive and deterrent nature (Mihalacheagainst Romania, [VV], number 54012/10, dated July 8, 2019).
In the specific case, the Court assessed that the public prosecutor, by rejecting the criminal report, did not establish the applicant's criminal responsibility. Namely, regardless of the fact that the investigating judge undertook certain investigative actions at the request of the public prosecutor, this did not mean that the court acquitted the applicant of guilt in the criminal proceedings, but it was a matter of the specifics of the domestic criminal law that was in force at the time, and which is no longer in force. Therefore, in the criminal proceedings against the applicant, the decision was made by the public prosecutor, not the investigating judge, and, unlike the case cited aboveMihalacheagainst Romania,the public prosecutor did not impose any sanction on the applicant.
Following the above, the Court concluded that the decision of the public prosecutor represented a mere suspension of the proceedings and that the provision of Article 4 of Protocol No. 7 to the Convention does not apply to this specific case, and that the petition of the applicantratione materiae incompatible with the provisions of the Convention and its protocols. Therefore it isrejected as inadmissible in accordance with the provisions of Article 35. st. 3. (a) and 4. of the Convention.