PARTLY DISSENTING OPINION OF JUDGE PAVLI
1. The “integrated duplication” doctrine, as confirmed by today’s judgment, sets a new high for judicial creativity – but not, unfortunately, in the service of fundamental rights. This doctrine stands on the premise that duplication of prosecutions for the same offence is not really duplication – bis is not bis – if the two sets of proceedings are “sufficiently integrated” in substance and in time. The majority have doubled down on the path chosen in A and B v. Norway ([GC], nos. 24130/11 and 29758/11, 15 November 2016), when this novel interpretation of Article 4 of Protocol No. 7 was first adopted by the Grand Chamber, after several decades of established interpretation to the contrary. What is more, both Grand Chamber compositions have done so without seeking to explain how this construction of ne bis in idem fits with the plain text of the Convention provision, its drafting history, or its object and purpose.
2. As to the operative provisions, I have voted against the indiscriminate holding that there has been no violation of Article 4 of Protocol No. 7 in the present case (see operative provision no. 3), which involves three separate sets of proceedings against the same applicant. I consider that there has been a violation of the said provision as regards the duplication between the criminal proceedings and one set of administrative proceedings (the CMVM procedure), but not in relation to the other (the BdP procedure). Furthermore, I have reached these conclusions on the basis of different criteria from those relied on by the majority.
On discoveries of silent exceptions
3. The text to be construed is fairly straightforward: “[n]o one shall be liable to be tried or punished again ... for an offence for which he has already been finally acquitted or convicted” within the same jurisdiction (emphasis added). The ordinary meaning of this formulation is that once a first set of proceedings has resulted in a final acquittal or conviction, continuing or at least seeing a second prosecution for the same offence through to its conclusion will be in violation of the Convention. As the provision establishes a core and non-derogable protection against double jeopardy, without any limitations or qualifications (other than that provided for in its second paragraph), it calls for strict interpretation, with no implied exceptions. In fact, for most of its history of application by the Court, the interpretative dilemmas have focused on what is “criminal” and what should count as “the same offence”: in other words, the idem aspect of the equation, which is also what most national legal systems have historically grappled with. The bis aspect has not attracted much constructive energy because little is needed in view of the plain text of the provision itself (see Sergey Zolotukhin v. Russia [GC], no. 14939/03, § 107, 10 February 2009). That is, until A and B came along, with its radical discovery of a silent exception in the context of parallel proceedings.
4. Turning to the drafters’ intent, as articulated in the Explanatory Report to Protocol No. 7 and the rest of the relevant travaux, I am equally unable to find any support for the exception of “integrated duplication”. Nor have the two Grand Chamber judgments at stake provided any evidence to this effect. To the extent that the drafters appear to have envisaged the possibility of parallel sets of proceedings – which, one may argue, in itself goes against the spirit of ne bis in idem, if not the strict letter of the Convention provision – they only did so in the uncontroversial scenario where one of those sets of proceedings was not “criminal” in nature, as illustrated by the reference to disciplinary proceedings “for the same act”[1]. This single exception suggests that no other parallel duplication for the same criminal offence was contemplated by the drafters.
5. Lastly, it is far from evident how the concept of “integrated duplication” fits within the object and purpose of the prohibition against double jeopardy. Historically, the principle has reflected an understanding that it is inherently unfair, and at odds with legal certainty, to subject a person to repeated prosecutions for one and the same offence (see Sergey Zolotukhin, cited above, § 110). Notably, the concern is not limited to excessive punishment; it is the repetition of the process itself that is “the evil to be avoided”[2]. Ironically, the Grand Chamber’s dismissal of Portugal’s declaration, made at the time of its ratification of Protocol No. 7, on the novel basis that it is incompatible with the object and purpose of the Convention provision (see paragraph 164 of the judgment), lends support to this historical reading of the protection against double jeopardy. In the same way that States should not be able to circumvent this “absolute right admitting of no derogation” (ibid) by playing with the definition of what counts as a “criminal charge”, nor should they be allowed to do so through a creative duplication of proceedings that are “sufficiently integrated”.
6. But what today’s majority hath taken from Portugal under idem, it hath generously given back under bis. This is, in fact, the real purpose and effect of the A and B doctrine: to allow those legal systems that have been ambivalent about the ban on double jeopardy from the outset – whether or not they have entered interpretative declarations to this effect – to freely pursue and complete separate criminal and administrative proceedings for (what our case law considers to be) the same offence. This has been done in the name of the modern administrative State and the progressive decriminalisation of certain acts that are now increasingly prosecuted as administrative offences (see paragraph 215 of the judgment): the implication being that, to facilitate such decriminalisation, the Court will continue to treat such transgressions as “criminal” but will nonetheless allow double prosecutions to proceed, subject only to certain “integration” requirements.
7. A similar narrative can be discerned around the definition of idem, with the Grand Chamber having been urged to adopt the concept of triple identity, whereby a set of proscribed actions by the same person would count as the same “offence” only if the relevant legal prohibitions also served the same “protected interest” (see paragraph 189 of the judgment). Had the Grand Chamber accepted such a position, it would have effectively overruled the Zolotukhin understanding, based on idem factum, and eviscerated most of the remaining protection under Article 4 of Protocol No. 7. While the majority have declined to go fully down that road, they have simply incorporated the diversity of protected interests into the criteria for “sufficient integration” (see paragraph 229 of the judgment). Again, what is denied with one hand is given back with the other.
8. In confirming this approach, the Court has travelled further and further away from the original orbit of Article 4 of Protocol No. 7, to the point that it is hardly concerned anymore with double jeopardy as such, but merely with avoiding an “excessive burden” or moderating the combined weight of sanctions resulting from double (or triple!) prosecutions. In the words of former Advocate General Bobek, that is no longer “a protection against double jeopardy. It is simply an ex post protection against the disproportionality of combined or aggregated sanctions” (see his Opinion in the bpost case, C‑117/20, paragraph 109; see also the Opinion of Advocate General Sanchez-Bordona in the Menci case, C-524/15).
9. This reframing has led, unsurprisingly, to the micro-management of double prosecutions from Strasbourg, while the applicable criteria have grown increasingly complex and national courts have struggled to keep pace with the constant fine-tuning and clarification by this Court. Today’s judgment provides further evidence of this particular foray down the rabbit hole of “integrated duplication”, and I suspect that the process of refinement will not stop here. We have, somehow, managed to transform one of the Convention’s core and unqualified prohibitions into one of the most overqualified tests ever designed by the Court.
10. Lastly, another challenge highlighted by today’s judgment relates to the rights of the defence in dual sets of proceedings. However, this goes well beyond the need to ensure coordination in the collection of evidence (see paragraphs 232-33 of the judgment): as the applicant and third-party interveners have argued, parallel proceedings may affect the basic fairness guarantees of criminal trials, such as the privilege against self-incrimination. The difficulties stem from the fact that – even though such dual sets of criminal and administrative proceedings may both qualify as “criminal” under Article 6 of the Convention – they can be subject to quite different requirements at the national level as regards rules of evidence, standards of proof and procedural protections for the person under investigation. This can create tough procedural dilemmas for a defendant facing parallel prosecutions over the same conduct. Such tension is, after all, built into the Engel line of case-law.
11. I would like, even if merely as an intellectual exercise, to offer an alternative path to “integrated duplication”. There is a clear connection, in my reading, between the gradual shrinking of protections under the bis branch of Article 4 of Protocol No. 7 and the expanded definition of “criminal” under the idem branch. The latter is the result of the uninhibited growth of the same concept within the criminal limb of Article 6 of the Convention under the Engel doctrine. This has meant that many offences or sanctions which are treated as merely administrative in nature within national legal systems trigger in Strasbourg the (almost) full panoply of criminal safeguards. While this approach may be reasonable, depending on the nature and gravity of the administrative sanctions at stake, there is little justification, in my view, for treating an 18-month suspension of a driving licence almost automatically as a criminal sanction (see Nilsson v. Sweden (dec.), no. 73661/01, 13 December 2005)[3].
12. I would therefore argue that a partial reconsideration of the Engel approach is in order, on the basis that a secondary “sting” of punishment should not be enough to trigger criminal protections if the primary interest of the administrative sanction is preventive and/or remedial (rather than punitive). For one thing, this would be in line with the intent of the drafters of Article 4 of Protocol No. 7, who singled out the possibility of separate disciplinary proceedings for the same acts, despite their obviously punitive aspect. For another, it would be more consistent with the general decriminalisation trends in Europe, compared to the “runaround” watering-down of the bis component. I note here that the intervening Italian Government have made similar arguments for the tightening of the Engel criteria (see paragraph 187 of the judgment), a suggestion with which the majority have chosen not to engage.
13. Lastly, it is important to note that the loss of full “criminal” protection would not be tragic for less serious sanctions, as due-process alternatives exist. One such alternative might be the protection of the civil limb of Article 6, where appropriate. Furthermore, the case-law on the substantive provisions of the Convention – including Article 8, which protects the right to respect for one’s private life, in its multifarious manifestations – has developed robust and autonomous procedural protections over time. This now tends to be the preferred option for applicants seeking to challenge, for example, serious disciplinary or other employment-related sanctions, whether in the public or private sectors (see Denisov v. Ukraine [GC], no. 76639/11, 25 September 2018).
14. In the remaining part of this opinion, I will seek to apply the ban on double jeopardy, based on the plain meaning of the Convention provision, to the circumstances of this complex case. I will do so without venturing into the business of “proportionate pain”, which is after all a matter best left to the wisdom of national criminal courts.
Application to the facts of the case
15. The analysis has to proceed in three steps: (i) whether the three sets of proceedings against the present applicant were criminal in nature; (ii) whether they concerned, in whole or in part, prosecutions for the same “offence”; and (iii) if so, whether, the second and third sets of proceedings were brought to term after the first set resulted in the final acquittal or conviction of the applicant. Chronologically, I will refer to the Banco de Portugal (BdP) proceedings – which came to a conclusion first – as the first set of proceedings, and to the criminal proceedings proper and the CMVM procedure as, respectively, the second and third sets of proceedings.
(a) Whether the administrative proceedings were criminal in nature
16. It is obvious that the proceedings resulting from the charges brought by the Lisbon public prosecutor’s office (see paragraph 36 of the judgment) were criminal in nature. It remains to be considered whether the BdP and CMVM proceedings were also criminal.
17. As to the BdP proceedings, the majority find it sufficient that the goals pursued were both preventive and repressive (see paragraph 255 of the judgment). This is not necessarily decisive for me, if the preventive goal was predominant and the punitive “sting” was only a secondary and inevitable aspect of the former (see paragraph 12 of this opinion). Likewise, the accessory sanctions of disqualification from certain positions in the banking industry for a number of years were not sufficient to make the BdP proceedings criminal, as their primary function was arguably preventive and protective of the banking system as a whole. That said, the applicable maximum sanctions of around 100,000 euros (EUR) per administrative violation were sufficiently serious to render them criminal for present purposes, even considering the applicant’s high net worth and the sums he obtained as a result of his professional actions subject to prosecution.
18. Similar considerations apply to the CMVM proceedings, where the applicant was exposed to a possible maximum fine of EUR 2.5 million and incurred an actual fine of EUR 480,000. However, the accessory sanctions on their own would not have been sufficient, in my view, to render the procedure criminal.
(b) Whether the offences were the same (“idem”)
19. It is important to recall at this point the applicable test, as defined in the Zolotukhin case, which remains good law after today’s judgment: based on a comparison of the statements of fact in the various procedures, the Court should identify “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” (see Sergey Zolotukhin, cited above, § 84; emphasis added). The test is therefore linked to the essential elements of the offences as defined in national law.
20. As an introductory comment, the present applicant’s actions and omissions contributed to a series of “circular trading” operations, the purpose of which was to artificially inflate the value of his bank’s stock. Apart from the financial machinations, the secrecy of the operations was instrumental to the success of the entire scheme, from the bank’s perspective. Therefore, the effort of market manipulation through “circular trading” was closely related to its cover-up, namely, the provision of false information and accounting, both to banking and financial-market regulators such as the BdP and the CMVM and to the financial market as a whole. This suggests that the actions at stake, undertaken over a long period of time, amounted to a unified criminal enterprise. It is therefore not surprising that, following the proceedings in question, Portuguese law on market manipulation was reportedly changed to provide that this offence should only be subject to criminal prosecution, rather than duplicated criminal and administrative procedures.
21. I turn now to the specific charges in each set of proceedings. In the BdP proceedings, the charges included three instances of false and incomplete information being provided to the BdP and six instances of false accounting, by hiding the bank’s control over the offshore companies and other related aspects. They were alleged to have been committed in the period from 2000 to 2007.
22. The second set of proceedings relied on charges of market manipulation and forgery. With respect to the latter, both the criminal courts and the courts in the BdP proceedings agreed that essentially the same offence had been subject to both criminal and administrative prosecution on the basis of what the Lisbon Court of Appeal in its judgment of 9 June 2015 characterised as a “concours idéal et effectif d’infractions” (see paragraph 32 of the judgment). The fact that the courts in the BdP proceedings did not impose sanctions under this head, based on the legal regime of their absorption by the criminal sanctions, does not change the fact of double prosecution for forgery. Nor does the fact that, ultimately, the criminal courts in the second set of proceedings considered that the forgery charges were absorbed by the charge of market manipulation, treating forgery as merely an aggravating circumstance thereof.
23. As to the charges of market manipulation in the second set of proceedings, they relied, at least in part, on the provision by the applicant of false information to the two regulators, the BdP and the CMVM. The offence was defined in Article 379 § 1 of the CVM as the act of “disseminat[ing] false, incomplete ... information, carry[ing] out fictitious transactions or engag[ing] in other fraudulent practices which may artificially alter the functioning” of the financial market. Neither the prosecution nor the courts distinguished the act of providing false information to the regulators from the other essential elements of the offence which needed to be proven to secure a conviction (see paragraph 20 of this opinion). Indeed, they appear to have treated such actions or omissions towards the regulators, in Convention terms, as “a set of concrete factual circumstances ... inextricably linked together in time and space”.
24. Thus, the prosecution charged that the bank managers had undertaken actions, in the period from 1998 to 2008, aimed at hiding the real value of the bank’s shares and the real state of its losses, both of which were the result of the activities of the offshore companies under their undisclosed control (see paragraphs 38 and 39 of the judgment). The conclusion of the criminal court of appeal that the acts of forgery (including in documents filed with the two regulators) were to be treated simply as an aggravating circumstance within the umbrella offence of market manipulation points in the same direction.
25. Similar considerations apply to the third set of CMVM proceedings, which relied on charges that the applicant had contributed to the provision of false and incomplete information in reports and other submissions filed with that regulator between 2003 and 2007. As already noted, the definition of market manipulation in national criminal law renders it quite difficult to distinguish lying to the regulators from deceiving the market as whole. In this respect, the majority conclusion that, “[f]rom a substantive or chronological standpoint, each of these sets of proceedings was only partly related to the facts forming the subject matter of the others, although they overlapped in certain respects” (see paragraph 264 of the judgment) appears to make a rather artificial or formal distinction, seen from the perspective of the Zolotukhin test.
26. I conclude, therefore, that the applicant was prosecuted for the same “offence” in the first and second sets of proceedings; as well as in the second and third sets of proceedings. There was not necessarily such an overlap between the two sets of administrative proceedings, but it is not necessary to reach a firm conclusion on this point.
(c) Whether there was duplication of proceedings (“bis”) contrary to Article 4 of Protocol No. 7
27. What the Convention provision requires us to assess at this stage is whether the applicant was subjected to a second or third prosecution which continued even after he had been “already finally acquitted or convicted” for the same offence(s).
28. To begin with, both the Portuguese legislation and the jurisprudence of the national Constitutional Court appear to have been (and to still be) premised on the principle of triple identity, whereby a bis in idem problem only arises where the two offences are meant to protect the same “legal interest” – despite being based on the same essential acts, committed by the same person. Such an approach is simply inconsistent with the Court’s understanding of idem factum, as adopted in the Zolotukhin case and largely confirmed in today’s judgment. As a result, the national courts were not concerned, from the outset, with avoiding duplication of proceedings, starting from the correct Convention premise. The Grand Chamber majority acknowledge this fact but seek to underplay its consequences (see paragraph 266 of the judgment).
(i) As to duplication between the first and second sets of proceedings
29. The first proceedings to have concluded were the BdP proceedings, with the judgment of the Lisbon Court of Appeal on the merits of the case becoming final on 26 June 2015. Only part of the original charges had survived at this stage, due to the application of statutory bars at earlier stages of the procedure. With respect to the remaining charges of provision of false information to the BdP, the Court of Appeal again applied a statutory bar on the prosecution of any facts that had occurred prior to 9 June 2007; and it acquitted the applicant of the remaining charges of false reporting and false accounting related to the E.A. group of companies. It confirmed, however, the accessory sanctions previously imposed by the BdP, in view of the absence of suspensive effect of the appeal (see paragraph 34 of the judgment).
30. On 26 June 2015, the second set of proceedings were pending before the Constitutional Court, with which the applicant had filed a constitutional complaint against the verdict of the Lisbon Court of Appeal of 25 February 2015, relying essentially on the same Convention arguments as he was later to raise before the Court (see paragraphs 50 et seq. of the judgment). Furthermore, on 15 December 2015, he filed a motion with the Lisbon Court of Appeal seeking the termination of those criminal proceedings in view of the fact that the BdP procedure had already been brought to a conclusion, resulting, in his view, in an unqualified acquittal (see paragraphs 55 et seq. of the judgment). Both the Constitutional Court and the Lisbon Court of Appeal rejected his double-jeopardy arguments and the criminal conviction became final on 14 July 2016.
31. What is to be made of this particular set of circumstances related to the nature of the verdict in the first set of proceedings? To begin with, I agree with the majority position that a decision to discontinue proceedings due to statutory limitation cannot be equated with a full and proper acquittal for the purposes of Article 4 of Protocol No. 7 (see paragraph 283 of the judgment). As to the applicant’s acquittal in the first set of proceedings on the charges related to the E.A. group, it is important to note that the Lisbon Court of Appeal expressly relied, in this respect, on the findings of the Lisbon District Court, in the second set of proceedings, to the effect that the BCP’s control over the E.A. group had not been proven (see paragraph 43 of the judgment). The latter finding dated from 2 May 2014; and it does not appear that the prosecution appealed against this particular finding. Therefore, it cannot be said that the applicant continued to be liable to prosecution – in relation to the E.A. group – in the second set of proceedings after he had been finally acquitted of those same charges in the first set of proceedings. Accordingly, I must conclude that there has been no violation of Article 4 of Protocol 7 as regards the first and second sets of proceedings.
32. Lastly, as a matter of legal tactics, one could argue that the applicant’s petition to the Constitutional Court was bound to fail given that court’s clear and established position on ne bis in idem. It is possible to concede in general terms – and without suggesting that this was the applicant’s intention in this case – that, through the use of delaying procedural tactics, defendants may seek to influence which of several parallel sets of proceedings comes to an end first. While this may be a relevant consideration, it was not unreasonable, in my view, for the present applicant to attempt to change the position of the national Constitutional Court, given, among other factors, the gradual evolution of this Court’s own jurisprudence toward a more coherent interpretation of Article 4 of Protocol No. 7.
(ii) As to duplication between the second and third sets of proceedings
33. The second set of proceedings, in which the applicant was convicted of market manipulation, became final and acquired the force of res judicata on 14 July 2016 (see paragraph 56 of the judgment). The CMVM proceedings continued well past this date and were eventually completed (see paragraph 86 of the judgment), with additional monetary and accessory sanctions imposed on the applicant. Having found that there was significant substantive overlap in the charges pursued against the applicant in these two sets of proceedings, I must conclude that there has been a violation of Article 4 of Protocol No. 7 in this respect.
Can dual sets of proceedings be Convention-compliant?
34. There is little doubt about the gravity of the actions and omissions attributed to the present applicant as part of a broader scheme of market manipulation executed by multiple generations of BCP managers. That scheme caused great harm to the interests of the bank’s investors and the country’s financial system, and nothing in this separate opinion is meant to suggest otherwise. In fact, all things considered, the relative leniency of the sanctions imposed by the criminal courts at the end of the second set of proceedings is somewhat surprising.
35. More generally, a legitimate question may arise as to the possibility for States to launch dual sets of proceedings (formally criminal and administrative) in certain complex areas of modern administrative law if the Court were to adopt Judge Serghides’ and my interpretation of Article 4 of Protocol 7 – without losing sight of the fact that this is not a matter of choice for those of us inclined to take the text of the Convention seriously. As a general principle, it is not for the Court to instruct States as to how to organise their legal systems to ensure that they stay, as a whole, within the bounds of the Convention. States enjoy great discretion in this respect, as reflected in the varied laws and practices across Europe on this and related subject matters. Among other things, States may choose to set down rules of priority or precedence among the plurality of “protected interests” served by criminal and/or administrative regulations; seek to integrate multiple charges within the same proceedings; or pursue other approaches that may be distilled from best European practices.
36. In the context of cases such as the present one, and with no ambition of providing any exhaustive guidance, it seems to me that several options are open to the national authorities. First, it should be possible to design administrative sanctions in a way that would keep them below the Engel threshold. As I have already argued, the Court could facilitate this process by revisiting the Engel criteria, or at least the rigid ways in which they have sometimes been applied in practice. Professional sanctions, in particular, should not automatically get the “criminal” label, and even the size of monetary penalties may take due account of the nature of the infringements and the relevant economic sector. A given fine does not cause the same amount of pain to senior bankers as it does to taxi drivers.
37. Secondly, in some cases it may be possible and indeed more effective to prosecute the various offences within a single set of criminal (or perhaps administrative) proceedings. The recent legislative amendments in Portugal providing for a unified criminal prosecution of the offence of market manipulation appear to go in this direction. This seems preferable to a situation where national law prevents cumulative sanctions but not the very conduct of parallel criminal and administrative proceedings for the same offence (as was the case with the charges of false accounting in the BdP proceedings involving the present applicant).
38. Thirdly, it may be possible for different procedures to rely on sufficiently distinct sets of facts or illegal acts, thus avoiding idem factum overlaps, as determined by the Zolotukhin test. Thus, national authorities may be able to argue, for example, that providing false information to different oversight authorities, which exercise different regulatory functions and operate under different regulatory regimes, should not necessarily be treated as “the same offence”, even if such practices concern related underlying events. As noted, the Zolotukhin standard should not be applied in abstracto, but in the light of the essential elements of each charged offence. At the same time, such an approach would require some division of labour and ex ante coordination among the various prosecuting authorities.
39. Lastly, as a tactical matter, prosecutors could aim to ensure that the primary criminal proceedings are completed before the conclusion of any other parallel proceedings, thus immunising the former from any possible double-jeopardy challenges. I appreciate, however, that this may be a function of multiple considerations that might not always be juggled successfully.
40. It is obvious, in conclusion, that the “integrated duplication” option favoured by the Grand Chamber majority is the least onerous for the States. But the path of least resistance is not usually the best one for fundamental rights.
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