- Factual description and legal qualification of actions of defendant U.E. against M.Ž.
A request for initiation of misdemeanor proceedings filed by the Police Directorate – Kolašin regional unit states that on 4 August 2023, around 1:30 a.m., defendant U.E. behaved in a particularly shameless and offensive manner towards M.Ž. in a public place, on Vukman Krušćić Square. Namely, following a short conversation, he grabbed her chin, and after M.Ž. removed his hand, he grabbed her buttocks, thereby committing a violation under Art. 7, para 2 of the Law on Public Order and Peace[1]. The request further states that on the same day, “after the event described under point 1 herein”, in Palih Partizanki Street, M.Ž. physically attacked U.E. by hitting his head and body repeatedly with closed and open fists, thereby committing a violation under Art. 10, para 2 of the Law on Public Order and Peace.[2]
As evidence, a doctor’s report from the emergency medical aid unit in Kolašin was attached to the request for initiation of misdemeanor proceedings. Also, in addition to the hearing of defendants U.E. and M.Ž., it was suggested that a citizen be heard as a witness.
In the rationale for its decision, the Misdemeanor Court in Bijelo Polje stated that during the procedure, the emergency medical aid report attached to the request for initiation of misdemeanor proceedings had been inspected and that it was then established that defendant M.Ž. had a hematoma on her right upper arm the size of a child’s palm, which was also visible during the hearing before this Court. The rationale further indicated that it was established that U.E. used physical force against injured party M.Ž., i.e., attacked her physically, as clearly confirmed by medical documentation, but that the Misdemeanor Court could not declare defendant U.E. guilty of “that offense” because the request to initiate the proceedings does not charge him with it.
The request for initiation of misdemeanor proceedings, in the factual description of the offense that U.E. was charged with, does not state that he had grabbed M.Ž.’s hand, causing her bodily injury, i.e., hematoma on her right upper arm. In the statement given before the Misdemeanor Court, which is “in essence” presented in the decision rationale, M.Ž. pointed out that after U.E. had grabbed her by the chin and buttocks, she hit him several times in self-defense in the head and body. He then “tried to drag her towards the apartments by force,” but a man appeared at the parking lot in front of the apartments and saved her, and U.E. ran away. A witness to the event gave a similar statement before the Misdemeanor Court, stating that U.E. had grabbed M.Ž. by the chin, and when she removed his hand – he grabbed her buttocks; M.Ž. then reacted and hit him a couple of times in self-defense, but U.E. “continued grabbing M.Ž., dragging her towards the apartments”.
The police took statements from M.Ž. and the witness in the form of official notes, which were attached to the request to initiate misdemeanor proceedings (which the author of this text did not have access to). Therefore, it could be suspected that based on the statements given by M.Ž. and the witness at the police – and certainly after their hearing and testimony before the Misdemeanor Court – the police could have described the behavior of U.E. towards M.Ž. differently, in a way that goes beyond just shameless and offensive behavior in a public place.
According to Art. 188 of the Law on Misdemeanors, if the evidence presented at the hearing indicates that the factual situation presented in the request for initiation of misdemeanor proceedings has changed, the person who filed the request may orally amend it at the hearing.
The decision rationale does not mention the more accurate statement given by M.Ž. in terms of how she suffered a hematoma or statements given by M.Ž. and the witness about how U.E. dragged M.Ž. towards the apartments, which part of her body he grabbed, etc. (the author of this text is unaware whether M. Ž. and the witness were even asked such a question during the court hearing). In addition, no other evidentiary actions were conducted during the misdemeanor proceedings that would have linked the identified injury on M.Ž.’s hand to U.E.’s controversial behavior, for example, forensic medical expertise.
All of the above indicates that the facts stated in the request for initiation of misdemeanor proceedings regarding actions taken by U.E. against M.Ž. were not accurately and fully described based on all the information that the Police Directorate collected or could have collected before submitting the request, as well as that the Police Directorate – after the initiation of misdemeanor proceedings against U.E. at M.Ž.’s request – was procedurally inactive after the evidence presented before the Court indicated that U.E.’s behavior towards M.Ž. exceeded the factual description from the submitted request. Therefore, one could bring into question the legal qualification of U.E.’s actions stated in the request and the Misdemeanor Court’s verdict by which U.E. was declared guilty of a misdemeanor consisting of particularly shameless and offensive behavior towards M.Ž.
Finally, there has been a significant violation of the provisions of the misdemeanor procedure in connection with the factual description of defendant U.E.’s actions towards defendant M.Ž. While the Misdemeanor Court, in its verdict, established that U.E. behaved “in a particularly shameless and offensive manner” towards injured party M.Ž. by “grabbing her chin, and after she removed his hand, grabbing her buttocks,” the decision rationale states that based on the defense of the defendants and the statement of the only eyewitness to the event […] it was clearly established […] that defendant U.E. behaved “in an impudent and shameless manner” towards injured party M.Ž. “by grabbing her hands, chin, and buttocks […]”. This contradiction between the verdict and the rationale regarding the established factual situation represents a significant violation of the provisions of the misdemeanor procedure under Art. 204, para 1, item 10 of the Law on Misdemeanors, which the second-instance court should also pay attention to ex officio (Art. 209 of the Law on Misdemeanors).
- Factual description and legal qualification of actions of defendant M.Ž. towards U.E.
The Police Directorate’s request for the initiation of misdemeanor proceedings states that the second defendant M.Ž. “on the same day, after the event described under point 1 of this request, in Palih Partizanki Street, physically attacked the first defendant U.E. by hitting him several times with closed and open fists in the head and body, thereby committing a violation under Art. 10, para 2 of the Law on Public Order and Peace.”
Firstly, from a legal point of view, the request to initiate misdemeanor proceedings is incomprehensible in terms of the factual description of the offense charged to the defendant M.Ž. The time reference “after the event described under point 1” is incomprehensible since there is no point 1 in the request describing an event. In the request, the personal data of the defendants, but not the events, are listed under numbers 1 and 2. The Misdemeanor Court had to pay attention ex officio to this oversight in the request regarding the factual description of the misdemeanor.
According to Art. 155 of the Law on Misdemeanors, if the request for initiation of misdemeanor proceedings does not contain data from Art. 154 of that law, without which it is not possible to conduct the proceedings, the court shall demand that the person who filed the request complete the request within 8 days. The aforementioned Art. 154 of the Law on Misdemeanors stipulates that the request for initiation of misdemeanor proceedings must – among other things – contain a factual description of the action from which the legal nature of the misdemeanor arises, the time and place of the misdemeanor and other circumstances necessary to determine the misdemeanor as accurately as possible (author’s italics). The time frame “after the event described under point 1” – apart from being incomprehensible for the reason stated above – is also imprecise since it does not contain information about when the actions that M.Ž. was charged with had started and how long “after the event described under point 1” they lasted.
Instead of asking that the request for the initiation of misdemeanor proceedings be completed, the Misdemeanor Court amended, that is, exceeded the factual description of the misdemeanor stated in the request in the part that refers to the misdemeanor that M.Ž. was charged with. Namely, the Misdemeanor Court’s verdict states that U.E. and M.Ž. are guilty “of having committed the above-mentioned offenses under the Law on Public Order and Peace on 4 August 2023 at 1:30 a.m., in a public place on Vukmana Krušćića Square, municipality of Kolašin”. The request was exceeded not only in terms of the time of the offense committed by M.Ž. (the request states that U.E. committed the offense around [author’s italics] 1:30 a.m., and M.Ž. after the event described under point 1 of the request – which does not exist in the request, while the verdict states that both defendants committed the offense at [author’s italics] 1:30 a.m. on 4 August 2023), but also with regard to the place where the offense was committed (the request states that M.Ž. committed the offense in Palih Partizanki Street, and the Court’s verdict states that she committed the offense at Vukmana Krušćića Square) and with regard to M.Ž.’s actions constituting misdemeanor (the request states that M. Ž. delivered several blows “with closed and open fists”, and the verdict states that she delivered several blows “with a closed and open fist”). Such omissions that the first-instance court made in the verdict represent a significant violation of the provisions of the misdemeanor procedure under Art. 204, para 1, item 6 of the Law on Misdemeanors, which the second-instance court should also take into consideration ex officio (Art. 209 of the Law on Misdemeanors).
2.1. Fulfillment of the conditions for applying the institute of necessary defense
The Police Directorate and the Misdemeanor Court qualified the actions of defendant M.Ž. against defendant U.E. during the event in question, which included inflicting multiple blows with closed and open fists (or a closed and open fist) to U.E.’s head and body, as a misdemeanor under Art. 7, para 2 of the Law on Public Order and Peace, i.e., as a physical attack on another person in a public place. The accused M.Ž. and the eyewitness stated before the Court that M.Ž. delivered blows to U.E. in necessary defense (“in self-defense”), which the Court did not accept.
In relation to defendant M.Ž., the rationale of the decision specifies that the Misdemeanor Court established the existence of the misdemeanor offense that M.Ž. was charged with in the request “because she herself admitted in her defense that she had hit defendant U.E. several times in the head and body, stating that this was done in self-defense, but the Court could not consider it a necessary defense or a last resort, especially considering the fact that the act took place in the square and that the defendant did not immediately call the police regarding the attack, but used physical force against defendant U.E. on her own initiative.”
Art. 14 of the Law on Misdemeanors stipulates that the provisions of the Criminal Code on […] necessary defense, last resort, force, and threat shall be applied accordingly to the offender. Art. 10 of the Criminal Code stipulates that a crime committed in self-defense is not a crime and that legitimate self-defense is such defense that is absolutely necessary for one to avert a concurrent or imminent unlawful attack upon oneself or another. The same provision of the Criminal Code stipulates that if a perpetrator exceeds the limits of legitimate self-defense, s/he may receive a lighter punishment, and where the exceedance was due to strong excitement or fear due to an assault, s/he may be released from punishment.
Given the above-mentioned part of the decision rationale, it follows that the position of the Court in the specific case is that the conditions for applying the institute of necessary defense were not met because “the act took place in the square” and the defendant “did not immediately call the police in connection with the attack, but used physical force against defendant U.E. on her own initiative”. Such reasoning of the Court is unjustified for several reasons.
On the one hand, no property of the place where the offense was committed can a priori exclude the possibility of applying general institutes to exclude the existence of a misdemeanor or criminal offense, such as the institutes of necessary defense and last resort. The fulfillment of the conditions for applying these institutes must be assessed by looking at the elements of those institutes; thus, in the case of necessary defense, it is (a) an attack – which must be illegal and current or immediately imminent in relation to (2) defense – which must be necessary to ward off the attack.
On the other hand, considering the Court’s statement that “the defendant did not immediately call the police about the attack [author’s italics] but used physical force against defendant U.E. on her own initiative,” two possible competing conclusions could be drawn: first, that the Court considered that the infliction of blows by M.Ž. was not necessarily required at the time of the actual or imminent attack by defendant U.E. on her and that U.E.’s attack would have been successfully repelled by calling the police; and second, that the Court considered that there was no simultaneity of U.E.’s attack and M.Ž.’s defense, which consisted of punching defendant U.E.
In connection with the mentioned possible conclusions, it is important to point out that according to the generally accepted standpoint of criminal law, the attacked party is not obliged to suffer damage or to receive blows and injuries, and that in addition to the current attack, it is also permissible to repel an imminent attack which – as foreseen by the criminal law – already exists when the attacker is at a stage in which the true beginning of the attack can follow at any moment, as well as that in the case of necessary defense, the strict equivalence of opposing goods is not required, as is necessary in the case of the institute of last resort, given that in the case of necessary defense there is a “conflict of a right and a negative right,” and in the case of last resort, there is a “conflict of two rights.” In other words, the perpetrator will remain within the bounds of necessary defense even if – by defending himself – he injures a good of greater value than the attacker, provided that there is no extreme disproportion between these conflicting goods.[3]
Little can be concluded based on the vaguely established factual situation and the reasons why the institute of necessary defense could not be applied, which the Court specified in its decision. Nevertheless, it seems that the incomplete factual description of the actions of defendant U.E. towards defendant M.Ž. contained in the request for initiation of misdemeanor proceedings and the verdict of the Misdemeanor Court (see above) created the impression that U.E. ended his illegal behavior (attack) before M.Ž. started hitting him with closed and open fists. Such an – apparently wrong – impression would go hand in hand with the Court’s conclusion about the non-simultaneity of defendant U.E.’s attack and defendant M.Ž.’s defense.
On the other hand, in the decision rationale, the Court found – although contradicting the verdict – that “U.E. used physical force against [… ] M.Ž., i.e., a physical attack”, and it was also stated that the Court “fully” accepted the testimony of the eyewitness who said that after M.Ž. reacted and hit defendant U.E. in self-defense a couple of times, he “continued to grab M.Ž. dragging her towards the apartments.” All these shortcomings and factual contradictions testify to the faultiness of the Misdemeanor Court’s decision, which did not consider many important issues related to the institute of necessary defense, such as the intensity and simultaneity of attack and defense. Otherwise, it would be possible to establish that defendant M.Ž. did not commit an offense against U.E. for acting in self-defense or to free her from punishment if she exceeded the self-defense limits due to high irritability or panic caused by the attack.
- Decision on the costs of the misdemeanor proceedings
If all the above-mentioned shortcomings of the Misdemeanor Court’s decision were to be ignored, there would also be reasons to contest the decision on the costs of the proceedings.
Art. 127 of the Law on Misdemeanors stipulates that the provisions of the Criminal Procedure Code on the costs of the proceedings shall be applied accordingly in misdemeanor proceedings. Art. 229, para 3 and 4 of the Criminal Procedure Code stipulates that in a judgment finding several defendants guilty, the court shall determine a proportion of the costs to be borne by each defendant, and, if this is not possible, the court shall order that all the defendants be jointly liable for the costs, and the payment of the lump sum shall be determined separately for each defendant, as well as that in a decision on costs, court may acquit the defendant from bearing the overall or partial costs of the criminal proceedings […], where the payment of these costs could destitute the defendant or his/her dependant.
According to the Misdemeanor Court’s verdict, defendant U.E. is employed, married, and father of one child, while defendant M.Ž. is a student and single. Considering the type of misdemeanors, the prescribed penalties for those misdemeanors, and the circumstances under which they were committed, the Court ordered defendant U.E. to pay a fine in the amount of 300 euros and issued a warning against defendant M.Ž. In this state of affairs, the Court obliged both defendants to bear the total costs of the misdemeanor proceedings in equal parts, in the amount of 82.5 euros each, of which 30 euros for the lump sum and 52.5 euros for the hiring of a court interpreter for the Turkish language.
The cited provisions of the Criminal Procedure Code allowed the Misdemeanor Court, taking into account all the case circumstances, to decide a proportion of the costs to be borne by each defendant. Even with all the shortcomings of the Misdemeanor Court’s decision, it is clear that the degree of responsibility (guilt) for the committed offense is significantly higher in the case of U.E. compared to M. Ž.; thus, taking into account the motives and circumstances under which the offenses described in the verdict were committed, the decision that both defendants bear the costs of the proceedings in equal parts is not justified. In the rationale, it was only stated that the decision on costs was made based on Art. 127 of the Law on Misdemeanors, without specifying the reasons for such a decision.
[1] The aforementioned provision of the Law on Public Order and Peace stipulates that anyone who grossly insults another in a public place or otherwise behaves in a particularly insolent, shameless or offensive way shall be imposed a fine of 250 euros to 1,000 euros or a prison sentence of up to 60 days.
[2] The aforementioned provision of the Law on Public Order and Peace stipulates that anyone who physically attacks another person in a public place or engages in physical violence shall be imposed a fine of 350 euros to 1,000 euros or a prison sentence of up to 60 days.
[3] See: Igor Vuković, Criminal Law – General Part, Faculty of Law, University of Belgrade, Belgrade, 2021, p. 133, 141-142.