800 lawsuits await Slovenia! Strasbourg sided with one Croatian fisherman, but not the other

The European Court of Human Rights (ECHR) on Tuesday issued a judgment that will open more questions in Slovenia than it closes. Two Croatian fishers from Savudrija, Franka Makovac and Michael Latin, sued Slovenia for violating the right to a fair trial in the minor offence proceedings brought against them over fishing in the part of the Bay of Piran that went to Slovenia under the 2017 arbitration ruling. Croatia does not recognise the arbitration, so fishers on both sides of the border regularly receive fines.

The court examined the cases separately and reached two different decisions.

In 2020, Michael Latin was fined €840 for allegedly preventing a fisheries inspector from accessing his vessel and for having no permit to fish in Slovenian waters. The Slovenian court did not hear him at all. The inspector established his identity partly on the basis of posts on social media. The ECHR unanimously ruled that his right to a fair trial had been violated.

"Mr Latin's conviction was based on his identification by the fisheries inspector and on non-specific social media posts. An oral hearing would have been necessary in his case to test that evidence." (translated)

Franka Makovac had less luck. In 2018, Slovenian police fined her €500 for entering the country with a vessel without permission. When Slovenian police ordered her to stop her boat, she returned to Croatian waters with the help of a Croatian police vessel. The court found that she was clearly identifiable in photographs and video recordings and did not deny being in Slovenian waters, so a hearing was not necessary. By five votes to two, the ECHR ruled that her right to a fair trial had not been violated.

"Her conviction was supported, among other things, by photographs of two identifiable individuals, and Ms Makovac had the opportunity to challenge that evidence." (translated)

Latin demanded €30,000 in damages from Slovenia. He got not a cent: the court ruled that the finding of a violation was in itself sufficient "just satisfaction". It suggests a retrial as the most appropriate course, if Latin requests one.

For Slovenia, the second part of the judgment matters more. Croatia, which took part on behalf of the fishers as a third-party intervener, asked the court to require Slovenia to change its legislation, claiming that Slovenian courts hold an oral hearing in minor offence proceedings in roughly one in three hundred cases. The ECHR decided it did not have enough data for such an assessment and for now made no demand for systemic changes. However, as the judges wrote, it left the door open to a different decision if a systemic problem is established.

The judgment does not touch on the course of the border or the validity of the 2017 arbitration ruling. More than 800 similar complaints from Croatian fishers against Slovenia are already pending before the ECHR, and there are reportedly more than 3,000 similar cases. The first judgment of its kind therefore did not show a uniform line, but two conflicting decisions in seemingly similar cases. The remaining 800 complaints will still have to be decided, one by one.