Slovenian fishermen fined by Croatia for fishing in waters that a border arbitration tribunal awarded to Slovenia in 2017 have failed with their appeal to the European Court of Human Rights (ECHR), which declared their applications inadmissible.

In a decision issued on 16 May, the Strasbourg court says it does not have the jurisdiction to rule on the validity of the border arbitration award. It also says that the fishermen could have foreseen minor offences convictions.

Slovenian fishermen and one company brought a total of 451 applications with the court. They relied on Article 7 of the European Human Rights Convention, which says there can be no punishment without law. They argued that "the actions and omissions for which they had been convicted could not have constituted offences under Croatian law as they had not occurred within Croatian territory."

Picking the applications of three of the fishermen as being representative and to affect the decisions in all other cases, the court ruled that it does not have the power to rule on the validity of the arbitration, which awarded three quarters of Piran Bay to Slovenia, while Croatia insists that the border should run along the equidistance line between the countries' shores.

"The applicants implicitly sought a finding that Croatia had breached international law and the Convention in failing to observe the border established in that award. In this connection, the Court reiterated that the Convention should be interpreted by taking account of international law where possible. However, the task of the Court was not to review compliance with international instruments, but with the Convention."

The court says that the Croatian law set out this maritime boundary clearly, therefore the "applicants could not have been unaware that their conduct in the disputed waters would constitute minor offences under the applicable Croatian legislation".

The court notes that the Croatian authorities have been issuing warnings to Slovenian fishermen since 2014, while the issuing of minor offences only started in 2017, when Slovenia started implementing the border arbitration award and issuing fines to Croatian fishermen.

The court also says that there are 800 applications on its docket "lodged by Croatian nationals against Slovenia in respect of minor-offence proceedings conducted against them in Slovenia regarding their activities in the waters concerned".

The court underlines that its decision "is without prejudice to any efforts" of Slovenia and Croatia to resolve their border dispute "by using any peaceful means available".

"In that connection the Court notes that, independently of the border issue, the two countries are apparently seeking to find an agreement for their respective fishermen to be able to freely navigate and fish in the maritime waters concerned."

Decision met with regret in Slovenia

Slovenian fishermen regretted the decision, but were not surprised by it, while their representative Maja Menard expressed great disappointment, telling reporters that the court had completely followed Croatia's reasoning.

In her opinion, the ECHR took a clear position that Croatia's refusal to recognise the arbitration decision was enough to put a question mark over the validity of the arbitration award and the border demarcation.

"This means that for the court the border between the country is not laid down, but at the same time the court believes that Slovenian fishermen cannot make a valid argument that the convictions against them under Croatian law are unlawful," she said.

In her view this case casts doubt on legitimacy of the ECHR, the validity of the European Convention of Human Rights and the situation of individuals in this respect, as well as the general validity of international law in certain countries.

"So far there hasn't been a successful lawsuit against Croatia," said Robert Radolovič, one of the three fishermen whose applications were picked as representative.

He would not talk about further steps, because the fishermen need to meet first. But he said that they had already discussed the option of no longer fishing beyond the halfway point in the Piran Bay because the fines are too high.

Radolovič said his fines alone had run up to around €200,000. He noted that the fishermen had the support of the Slovenian state, but only up to a point. The state will not be paying their fines as this would amount to recognising the maritime border halfway down the bay, he believes.

However, Agriculture Minister Mateja Čalušić, who regretted the court's decision, promised that the government would continue to provide assistance to fishermen, whose fines have come to total €3.4 million.

She said Slovenian fishermen were victims of Croatia's refusal to recognise the arbitration and were being punished for fishing in Slovenian waters.

Marko Rakovec, the head of the Directorate for International Law and Protection of Interests at the Foreign Ministry, said possible detentions ordered by Croatia for Slovenian fishermen who refuse to pay the fines would amount to an international incident.

Like the court he underlined that the decision had no effect on the arbitration award. He said the two countries were not engaged in any talks about the border dispute.

Slovenia will once again call on Croatia to implement the arbitration award, he said, adding that the relations between the countries were good and the government would strive for them to remain good.