Guide on
Article 4 of Protocol No. 7
to the
European Convention
on Human
Rights
Right not to
be tried or
punished
twice
Updated on 30 April
2019
A. General
Principles
6. As noted
in the Explanatory Report to the Protocol, § 32, Article 4 only applies to
“criminal proceedings”. Consequently, it does not prevent the person from being
subject, for the same act, to action of a different character (for example,
disciplinary action against an official) as well as to criminal proceedings.
7. However,
the Court has held 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 incompatible with
the object and purpose of the Convention (Sergey
Zolotukhin v. Russia [GC], § 52 2).
It has held that the notion of “criminal 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, respectively3. The Court’s established case-law sets
out three criteria, commonly known as the “Engel criteria” (Engel
and Others v. the Netherlands), to be considered in determining whether
or not there was a “criminal charge” (Sergey Zolotukhin v. Russia [GC],
§ 53). For the consistency of interpretation of the Convention taken as
a whole, the Court finds it appropriate for the applicability of the principle
of ne bis in idem to be governed by the same criteria as in Engel (A and B
v. Norway [GC], §§ 105-107). 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 rule out 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 (Sergey Zolotukhin v. Russia, § 53, Jussila
v. Finland [GC], §§ 30-31).
8. If the
first or second set of proceedings is not considered “criminal” or “penal” by
the Court, the complaint under Article 4 of Protocol No. 7 will normally be
declared inadmissible as being incompatible ratione materiae within the
meaning of Article 35 § 3 of the Convention (see, by way of example, Paksas
v. Lithuania [GC], § 69, Seražin v. Croatia (dec.), §§ 91-92).
B.
Examples
·
Tax surcharges
10. The Court
has found in several judgments that the proceedings for imposition of tax
surcharges were “criminal” for the purposes of Article 4 of Protocol No. 7 (inter
alia, Manasson v. Sweden (dec.), Rosenquist v. Sweden (dec.),
Pirttimäki v. Finland, §§ 45-48, Lucky Dev v. Sweden, § 51). This
view was recently confirmed in A and B v. Norway [GC], §§ 136-139, and
in Johannesson
and others v. Iceland, § 43).
(…)
III. Whether both proceedings were “criminal” or
“penal” in nature Article 4 § 1 of Protocol No. 7
·
Administrative
proceedings and penalties
15. In Ruotsalainen
v. Finland, §§ 41-47, the
applicant was stopped by the police during a road check and was found to be
driving with more leniently taxed fuel than the diesel oil his van should have
been running on. Summary penal order proceedings were brought against him and
he was fined for petty tax fraud. It was also noted that, the applicant having
admitted to refuelling the van himself, there had been a notion of intent
behind his offence. Administrative proceedings were also brought against him
and he was charged the difference in tax. It was found that he had used his van
with fuel more leniently taxed than diesel oil and that, as he had failed to
give the Vehicle Administration or Customs prior notification of that usage,
the normal difference in tax charge was trebled. The Court noted that the
applicant was fined in summary penal order proceedings which were classified as
“criminal” in Finnish legislation. Subsequently, the applicant was issued with
a fuel fee debit in administrative proceedings that were not classified as
criminal but as part of the fiscal regime. The Court noted that the relevant
provision was directed towards all citizens rather than towards a group
possessing a special status. As the collected fuel fee was trebled the Court
held that it was to be seen as punishment to deter re-offending. Consequently,
the Court concluded that the nature of the offence was such as to bring the
issuing of the fuel fee debit within the ambit of “penal procedure”.
16.
In Grande
Stevens and Others v. Italy, §§ 94-101 and §
222, the Court found that heavy administrative fines imposed on
the applicants by the financial markets regulator were also “criminal” for the
purposes of both Article 6 and Article 4 of Protocol No. 7. The Court also
found that Italy’s reservation to the effect that Article 4 of Protocol No. 7
applied only to offences classified as criminal under Italian law was not valid
under the Convention, since it was too general and did not refer to the
specific provisions of the Italian legal order which excluded offences from the
scope of Article 4 of Protocol No. 7 (§§ 204-211).
IV. Whether
the proceedings concerned the “same offence” (idem)
A. General Principles
20. The non bis in idem principle
prohibits prosecution or trial for the “same offence”. In Sergey Zolotukhin
v. Russia [GC] the Court acknowledged that it had adopted a variety of
approaches in the past, placing the emphasis either on identity of the facts
irrespective of their legal characterisation (the “same conduct”, idem
factum, Gradinger v. Austria, § 55), on the legal classification, accepting
that the same facts could give rise to different offences (“concours ideal
d’infractions”, see Oliveira v. Switzerland, §§ 25-29), or on the
existence or otherwise of “essential elements” common to both offences (Franz
Fischer v. Austria). After examining the scope of the right not to be tried
and punished twice as set forth in other international instruments
(International Covenant on Civil and Political Rights, Charter of Fundamental
Rights of the European Union and American Convention on Human Rights) and
noting that the approach which emphasised the legal characterisation of the two
offences was too restrictive on the rights of the individual, the Court took
the view that Article 4 of Protocol No. 7 should be understood as prohibiting the
prosecution or trial of an individual for a second “offence” in so far as it
arose from identical facts or facts which were “substantially” the same as
those underlying the first offence (§§ 79-82; see also A and B v. Norway [GC],
§ 108). The starting point for the determination of whether the facts in both
proceedings were identical or substantially the same should be the statements
of fact concerning both the offence for which the applicant had already been
tried and the offence of which he or she stands accused (§ 83). The Court
emphasised that it was irrelevant which parts of the new charges were
eventually upheld or dismissed in the subsequent proceedings, because Article 4
of Protocol No. 7 contains a safeguard against being tried or being liable to
be tried again in new proceedings rather than a prohibition on a second
conviction or acquittal. It held that its 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 (§§ 83-84).
B. Examples
21. The principles established in Sergey
Zolotukhin v. Russia [GC] have subsequently been applied in a number of
other cases.
22.
In Ruotsalainen v. Finland, the Court noted that the facts behind both
sets of proceedings against the applicant had essentially been the same: they
both concerned the use of more leniently taxed fuel than diesel oil. The only difference had
been the notion of intent in the first set of proceedings. Consequently, the
Court held that the second sanction had arisen from the same facts as the
former and there had therefore been a duplication of proceedings in violation
of Article 4 of Protocol No. 7 (§§ 50-57).
(…)
25. A
number of cases concern applicants who have been subject to criminal
proceedings concerning tax- and bookkeeping crimes and also proceedings
concerning tax surcharges. In Pirttimäki
v. Finland the tax authorities, following an inspection, considered
that the applicant had received disguised dividends from a company in which he
held shares. Additional taxes and tax surcharges were imposed on the applicant.
Furthermore, additional taxes and tax surcharges were also imposed on the
company in which he held shares. Subsequently, the applicant was convicted, on
the company’s count, of an accounting offence, for having introduced incorrect
and misleading information in the company’s bookkeeping, and of aggravated tax
fraud. The Court noted that the first two sets of proceedings arose from the
fact that the company as well as the applicant, in his personal taxation
declaration, had failed to declare some income for certain tax years. In the
second set of proceedings the applicant was accused, as a representative of the
company, of aggravated tax fraud for having given incorrect information on
behalf of the company to the tax authorities during a certain time period. The
two sets of proceedings which were relevant were thus the taxation proceedings
against the applicant as well as the criminal proceedings. The Court found that
the two sets of facts were different, noting that the legal entities involved
in these proceedings were not the same: in the first set of proceedings it was
the applicant and in the second set of proceedings the company. It observed
that the circumstances were not the same: making a tax declaration in respect
of personal taxation differed from making a tax declaration for a company as
these declarations were made in different forms, they may have been made at a
different point of time and, in the case of the company, may also have involved
other persons. The Court therefore concluded that the two impugned sets of
proceedings did not constitute a single set of concrete factual circumstances
arising from identical facts or facts which were substantially the same (§§
49-52).
26.
In Shibendra Dev v.
Sweden (dec.) the tax authorities found that as the information
supplied by the applicant in his tax return was incorrect and the revision had
had to be made under a discretionary assessment procedure, given the business’s
deficient accounting, he was ordered to pay tax surcharges. Criminal proceedings
were initiated against him in regard to the above conduct. He was convicted of
an aggravated bookkeeping offence and an aggravated tax offence. The offences
concerned the same period as the above-mentioned tax decisions. The domestic
court found that the bookkeeping of the restaurant business had been seriously
deficient and that the applicant and his wife had been responsible for failing
to account for considerable proceeds and VAT, which had involved large profits
for them. The Court noted that the obligation of a businessperson to enter
correct figures in the books was an obligation per se, which was not dependent
on the use of bookkeeping material for the determination of tax liability. The
applicant, while not having fulfilled the legal bookkeeping requirements, could
later have complied with the duty to supply the tax authorities with sufficient
and accurate information by, for instance, correcting the information contained
in the books or by submitting other material which could adequately form the basis
of a tax assessment. Accordingly the Court held that the applicant’s submission
of the incorrect bookkeeping material to the tax authorities in support of the
claims and statements made in his tax return and his failure to provide them
with other reliable documentation on which it could base its tax assessment
constituted important additional facts in the tax proceedings which did not
form part of his conviction for a bookkeeping offence. In these circumstances
the Court found that the two offences in question were sufficiently separate to
conclude that the applicant was not punished twice for the same offence (§ 51;
see also Manasson v. Sweden (dec.), Carlberg v. Sweden, §§
69-70).
27. On the
contrary, in Johannesson and Others v. Iceland, the Court noted that the
applicants’ conviction and the imposition of tax surcharges were based on the
same failure to declare income and that tax proceedings and the criminal
proceedings concerned the same period of time and essentially the same amount
of evaded taxes. Therefore, the criminal offences for which the applicants were
prosecuted and convicted were the same as those for which the tax surcharges
were imposed (§ 47). In brief, the idem element of the non bis in
idem principle was present.
(…)
V. Whether
there was a duplication of proceedings (bis)
A. The first ruling must be “final”
29. The aim of Article 4 of Protocol No. 7
is to prohibit the repetition of criminal proceedings (non bis in idem principle)
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, 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 (Sergey Zolotukhin v. Russia [GC], § 107). 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 (§ 108). On the other hand, extraordinary
remedies such as a request for the reopening of the 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 (§ 108).
30.
In Sundqvist v. Finland
(dec.) the Court found that a decision by a prosecutor not to prosecute was
not to be regarded as a “final” decision, in the light of the domestic law
applicable. Accordingly, a subsequent decision by the Prosecutor General to
prosecute the applicant and the following conviction did not amount to new
proceedings falling under the sphere of Article 4 of Protocol No. 7. The Court
has already held that the discontinuance of criminal proceedings by a public
prosecutor does not amount to either a conviction or an acquittal, and that
therefore Article 4 of Protocol No. 7 finds no application in that situation (Smirnova
and Smirnova v. Russia (dec.), Harutyunyan v. Armenia (dec.), Marguš
v. Croatia [GC], § 120; see also a provisional psychiatric internment
ordered by the prosecutor in Horciag v. Romania (dec.)). This provision
is neither applicable to the termination of criminal proceedings on the basis
of an amnesty for acts which amounted to grave breaches of fundamental rights,
such as war crimes against the civilian population (Marguš v. Croatia [GC],
§§ 122-141). The Court has held that granting amnesty in respect of the killing
and ill-treatment of civilians would run contrary to the State’s obligations
under Articles 2 and 3 of the Convention. It has also noted that there is
growing tendency in international law to see the granting of amnesties in
respect of grave breaches of human rights as unacceptable. Therefore, bringing
a fresh indictment against a person who has been granted an amnesty for these
acts should not fall within the ambit of Article 4 of Protocol No. 7 (Marguš
v. Croatia [GC], §§ 122-141).
B. Whether
there was a new set of proceedings
31. Article 4 of Protocol No. 7 prohibits
the repetition of criminal proceedings that have been concluded by a “final”
decision. Article 4 of Protocol No. 7 is not only confined to the right not to
be punished twice but extends also to the right not to be prosecuted or tried
twice. It applies even where the individual has merely been prosecuted in
proceedings that have not resulted in a conviction (Sergey Zolotukhin v.
Russia [GC], §§ 110-111, in respect of an acquittal following the second
set of proceedings).
32. The Court has held that Article 4 of
Protocol No. 7 clearly prohibits consecutive proceedings if the first set of
proceedings has already become final at the moment when the second set of
proceedings is initiated (Sergey Zolotukhin v. Russia).
33. It has to be noted that, in some
cases, the issue as to whether a proceedings is “final” or not is devoid of
relevance if there is no real duplication of proceedings but rather a
combination of proceedings considered to constitute an integrated whole (Johannesson
and Others v. Iceland, § 48). In this case, the Court did not find it
necessary to determine whether and when the first set of proceedings – the tax
proceedings – became “final” as this circumstance did not affect the assessment
of the relationship between the proceedings at stake.
34. As regards parallel proceedings,
Article 4 of Protocol No. 7 does not prohibit several concurrent sets of
proceedings (litis pendens). In such a situation it cannot be said that
an applicant is prosecuted several times “for an offence for which he has
already been finally acquitted or convicted” (Garaudy v. France (dec.)).
There is no problem from the Convention point of view also when, in a situation
of two parallel sets of proceedings, the second set of proceedings is
discontinued after the first set of proceedings has become final (Zigarella
v. Italy (dec.)). But, when no such discontinuation occurs, the Court has
found that there was a duplication of proceedings in violation of Article 4 of
Protocol No. 7 (Tomasović v. Croatia, §§ 29-32; Muslija v. Bosnia and
Herzegovina, §§ 36-37; Nykänen v. Finland, §§ 47-54; Glantz v.
Finland, §§ 57-64).
(…)
36. Tax
sanctions have been examined by the Court in several cases against Finland and
Sweden. (Häkkä v. Finland, Nykänen v. Finland, Glantz v.
Finland, Rinas v. Finland, Österlund v. Finland, Kiiveri
v. Finland and Lucky
Dev v. Sweden). In these cases the Court noted that under the Finnish
and Swedish systems the criminal and the administrative sanctions had been
imposed by different authorities without the proceedings being in any way
connected: both sets of proceedings followed their own separate course and
became final independently from each other. Moreover, the Court noted that
neither of the sanctions had been taken into consideration by the other court
or authority in determining the severity of the sanction, nor was there any
other interaction between the relevant authorities. Furthermore the Court
observed that the tax surcharges had been imposed following an examination of
an applicant’s conduct and his or her liability under the relevant tax
legislation which was independent from the assessments made in the criminal
proceedings. This, the Court held, contrasted with the Court’s earlier cases
relating to driving licences, where the decision on withdrawal of the licence
had been directly based on an expected or final conviction for a traffic
offence and thus had not contained a separate examination of the offence or
conduct at issue. Therefore, the Court concluded that there had not been a
close connection, in substance and in time, between the criminal and the
taxation proceedings.
37. The issue is then whether there had
been a duplication of proceedings (bis). In A and B v. Norway [GC]
the Court examined the Norwegian system of dual criminal and administrative
proceedings regarding incorrect information submitted in tax declarations. The
Court developed further the principle of “sufficiently close connection in
substance and in time” between the proceedings. It held that the surest manner
of ensuring compliance with Article 4 of Protocol No. 7 was the provision of a
single-track procedure enabling the parallel strands of legal regulation of the
activity concerned to be brought together, so that the different needs of
society in responding to the offence could be addressed within the framework of
a single process. Nonetheless, Article 4 of Protocol No. 7 does not exclude the
conduct of dual proceedings, even to their term, provided that certain
conditions are fulfilled. The respondent State must demonstrate convincingly
that the dual proceedings in question have been “sufficiently closely connected
in substance and in time” (§ 130). When deciding whether dual criminal and
administrative proceedings are “sufficiently connected” the Court held that the
material factors included (§ 132):
“-
whether the different proceedings pursue complementary purposes and thus
address, not only in abstracto but also in concreto, different
aspects of the social misconduct involved;
-
whether the duality of proceedings concerned is a foreseeable consequence, both
in law and in practice, of the same impugned conduct (idem);
-
whether the relevant sets of proceedings are conducted in such a manner as to
avoid as far as possible any duplication in the collection as well as the
assessment of the evidence, notably through adequate interaction between the
various competent authorities to bring about that the establishment of facts in
one set is also used in the other set;
-
and, above all, whether the sanction imposed in the proceedings which become
final first is taken into account in those which become final last, so as to
prevent that the individual concerned is in the end made to bear an excessive
burden, this latter risk being least likely to be present where there is in
place an offsetting mechanism designed to ensure that the overall amount of any
penalties imposed is proportionate.”
Furthermore, the Court stressed that the
extent to which the administrative proceedings bear the hallmarks of ordinary
criminal proceedings, inter alia its stigmatising features, was an
important factor. Moreover, where the connection in substance is
sufficiently strong, the requirement of a connection in time must also
be satisfied. The Court held that the two sets of proceedings do not have to be
conducted simultaneously from beginning to end as it should be open to States
to opt for conducting the proceedings progressively in instances where doing so
is motivated by interests of efficiency and the proper administration of justice,
pursued for different social purposes, and has not caused the applicant to
suffer disproportionate prejudice. However, the connection in time must
be sufficiently close to protect the individual from being subjected to
uncertainty and delay and from proceedings becoming protracted over time, even
where the relevant national system provides for an “integrated” scheme
separating administrative and criminal components (§ 134).
Applying
these principles to the facts of the cases, the Court was satisfied that,
whilst different sanctions were imposed on the applicants by two different
authorities in different proceedings, there was nevertheless a sufficiently
close connection between them, both in substance and in time, “to consider them
as forming part of an integral scheme of sanctions under Norwegian law” for
failure to provide information for their tax returns. The dual proceedings did
not constitute therefore a proscribed duplication of proceedings so there had
been no violation of Article 4 of Protocol No. 7 to the Convention (§§ 144-147
and 149-154).
38.
On the contrary, in the case of Johannesson and Others v. Iceland, the
Court found that even if the two proceedings pursued complementary purposes in
addressing the issue of taxpayers’ failure to comply with the legal
requirements relating to the filing of tax returns (§ 51), there was no
sufficiently closed connection between them, due to the limited overlap in time
and the largely independent collection and assessment of evidence (§ 55).
Consequently, the applicants suffered disproportionate prejudice as a result of
having been tried and punished for the same or substantially the same conduct
by different authorities in two different proceedings which lacked the required
connection.
No comments:
Post a Comment