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Cite as: [2011] ECHR 1721
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FIRST SECTION
(Application no. 53785/09)
JUDGMENT
STRASBOURG
18 October 2011
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Tomasović v. Croatia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Anatoly Kovler, President,
Nina
Vajić,
Peer Lorenzen,
Mirjana Lazarova
Trajkovska,
Julia Laffranque,
Linos-Alexandre
Sicilianos,
Erik Møse, judges,
and Søren
Nielsen, Section
Registrar,
Having deliberated in private on 27 September 2011,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
1. Minor-offences proceedings against the applicant
2. Proceedings on indictment
II. RELEVANT DOMESTIC LAW
Section 3
“(1) The growing of plants from which narcotics may be produced and the production, possession and trafficking in narcotics, plants and parts of the plants from which narcotics may be produced is banned, as is the production, possession and trafficking in substances which may be used for the production of narcotics, save for [such possession, production and trafficking] under the conditions prescribed by this Act for medical, nutritional, veterinarian or educational purposes or for the purposes of scientific research.
...”
Section 54
“(1) A legal entity shall be fined between HRK 20,000 and HRK 50,000 for the minor offences of:
1. possession of narcotics ...
...
(3) For the minor offence under subsection (1) point 1 ... of this section a person shall be fined between HRK 5,000 and 20,000.”
Article 173
“(1) Whoever unlawfully possesses substances which are prescribed as narcotics shall be fined or sentenced to a term of imprisonment not exceeding one year.
...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL NO. 7 TO THE CONVENTION
“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.
2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.
3. No derogation from this Article shall be made under Article 15 of the Convention.”
A. Admissibility
B. Merits
1. The parties’ submissions
2. The Court’s assessment
(a) Whether the first penalty was criminal in nature
(b) Whether the offences for which the applicant was prosecuted were the same (idem)
“78. The Court considers that the existence of a variety of approaches to ascertaining whether the offence for which an applicant has been prosecuted is indeed the same as the one of which he or she was already finally convicted or acquitted engenders legal uncertainty incompatible with a fundamental right, namely the right not to be prosecuted twice for the same offence. It is against this background that the Court is now called upon to provide a harmonised interpretation of the notion of the ‘same offence’ – the idem element of the non bis in idem principle – for the purposes of Article 4 of Protocol No. 7. While it is in the interests of legal certainty, foreseeability and equality before the law that the Court should not depart, without good reason, from precedents laid down in previous cases, a failure by the Court to maintain a dynamic and evolutive approach would risk rendering it a bar to reform or improvement (see Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 56, ECHR 2007 ...).
79. An analysis of the international instruments incorporating the non bis in idem principle in one or another form reveals the variety of terms in which it is couched. Thus, Article 4 of Protocol No. 7 to the Convention, Article 14 § 7 of the UN Covenant on Civil and Political Rights and Article 50 of the Charter of Fundamental Rights of the European Union refer to the ‘[same] offence’ (‘[même] infraction’), the American Convention on Human Rights speaks of the ‘same cause’ (‘mêmes faits’), the Convention Implementing the Schengen Agreement prohibits prosecution for the ‘same acts’ (‘mêmes faits’), and the Statute of the International Criminal Court employs the term ‘[same] conduct’ (‘[mêmes] actes constitutifs’) . The difference between the terms ‘same acts’ or ‘same cause’ (‘mêmes faits’) on the one hand and the term ‘[same] offence’ (‘[même] infraction’) on the other was held by the Court of Justice of the European Communities and the Inter-American Court of Human Rights to be an important element in favour of adopting the approach based strictly on the identity of the material acts and rejecting the legal classification of such acts as irrelevant. In so finding, both tribunals emphasised that such an approach would favour the perpetrator, who would know that, once he had been found guilty and served his sentence or had been acquitted, he need not fear further prosecution for the same act...
80. The Court considers that the use of the word ‘offence’ in the text of Article 4 of Protocol No. 7 cannot justify adhering to a more restrictive approach. It reiterates that the Convention must be interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory. It is a living instrument which must be interpreted in the light of present-day conditions (see, among other authorities, Tyrer v. the United Kingdom, 25 April 1978, § 31, Series A no. 26, and Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 75, ECHR 2002 VI). The provisions of an international treaty such as the Convention must be construed in the light of their object and purpose and also in accordance with the principle of effectiveness (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 123, ECHR 2005 I).
81. The Court further notes that the approach which emphasises the legal characterisation of the two offences is too restrictive on the rights of the individual, for if the Court limits itself to finding that the person was prosecuted for offences having a different legal classification it risks undermining the guarantee enshrined in Article 4 of Protocol No. 7 rather than rendering it practical and effective as required by the Convention (compare Franz Fischer, cited above, § 25).
82. Accordingly, the Court takes the view that Article 4 of Protocol No. 7 must be understood as prohibiting the prosecution or trial of a second ‘offence’ in so far as it arises from identical facts or facts which are substantially the same.
83. The guarantee enshrined in Article 4 of Protocol No. 7 becomes relevant on commencement of a new prosecution, where a prior acquittal or conviction has already acquired the force of res judicata. At this juncture the available material will necessarily comprise the decision by which the first ‘penal procedure’ was concluded and the list of charges levelled against the applicant in the new proceedings. Normally these documents would contain a statement of facts concerning both the offence for which the applicant has already been tried and the offence of which he or she stands accused. In the Court’s view, such statements of fact are an appropriate starting point for its determination of the issue whether the facts in both proceedings were identical or substantially the same. The Court emphasises that it is irrelevant which parts of the new charges are 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...
84. The Court’s 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.
...”
(c) Whether there was a duplication of proceedings (bis)
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Croatian kunas at the rate applicable at the date of settlement:
(i) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of non-pecuniary damage;
(ii) EUR 1,130 (one thousand one hundred thirty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 18 October 2011 Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Anatoly
Kovler
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Sicilianos is annexed to this judgment.
A.K.
S.N.
CONCURRING OPINION OF JUDGE SICILIANOS
(Translation)
The present judgment refers, in particular, to the ne bis in idem principle enshrined in Article 4 of Protocol No. 7 to the Convention, and finds a violation of that provision. I am in full agreement with the operative provisions of the judgment and with most of the reasoning. However, there is one paragraph – which, moreover, serves little purpose in my view in terms of the reasoning of the judgment – which leaves me perplexed. Paragraph 29 states as follows: “The Court reiterates that Article 4 of Protocol No. 7 does not necessarily extend to all proceedings instituted in respect of the same offence (see Falkner v. Austria (dec.), no. 6072/02, 30 September 2004). Its object and purpose imply that, in the absence of any damage proved by the applicant, only new proceedings brought in the knowledge that the defendant has already been tried in the previous proceedings would violate this provision”. It is true that this passage is not new but has featured in previous judgments and decisions (see, in particular, Zigarella v. Italy (dec.), no. 48154/99, 3 October 2002, and Maresti v. Croatia, no. 55759/0725, 25 June 2009, § 66). Nevertheless, the Grand Chamber judgment in Sergey Zolotukhin v. Russia (no. 14939/03, 10 February 2009), which is now seen as the locus classicus as regards interpretation of the ne bis in idem principle, contains no assertion of this kind but affords much greater protection to the individual.
The above-mentioned Grand Chamber judgment was, quite rightly, hailed by legal commentators (see, for instance, H. Mock, ‘Ne bis in idem: Strasbourg tranche en faveur de l’identité des faits. Cour européenne des droits de l’homme (Grande Chambre), Zolotoukhine c. Russie, 10 février 2009’, in the Revue trimestrielle des droits de l’homme, 2009, pp. 867-881) as bringing to an end years of uncertainty as to the precise scope and content of the ne bis in idem principle, from which no derogation is permitted. Indeed, the third paragraph of Article 4 of Protocol No. 7 to the Convention states as follows: “No derogation from this Article shall be made under Article 15 of the Convention”. In other words, in view of its crucial importance in a State governed by the rule of law, the ne bis in idem principle features among the select group of norms which are non derogable and even form an imperative part of the normative structure of the Convention and the Protocols thereto.
It is true that the second paragraph of Article 4 introduces two limitations to the ne bis in idem principle. A further limitation arises from the first paragraph, concerning the territorial scope of the principle, which applies only to the courts of the State concerned and is not binding on those of another State. Nevertheless, all the limitations in question form part of the rule itself as they are expressly articulated by it. As defined in the first and second paragraphs of Article 4 of Protocol No. 7, the ne bis in idem principle may not be derogated from in any circumstances, not even in times of crisis. Any other exception, limitation, restriction or derogation, irrespective of its nature, which is not provided for by Article 4 itself is incompatible with the imperative nature of the principle recognised by that provision.
However, paragraph 29 of this judgment appears to view the scope of the ne bis in idem principle in strangely relative terms. The passage in question accepts that the principle is not violated even if a new set of criminal proceedings is brought, provided that two apparently cumulative conditions are met: (1) the new set of proceedings does not cause any damage to the applicant and (2) the competent authorities were not aware that the person concerned had been finally acquitted or convicted. Quite apart from the fact that no such exception can be derived from the letter or even the spirit of Article 4 of Protocol No. 7, the conditions outlined above create significant potential for abuse which is liable to undermine the ne bis in idem principle.
It is not clear how bringing a new set of criminal proceedings could be said not to cause damage. In my view the setting in motion of such proceedings, in whatever manner, would ipso facto occasion non-pecuniary damage to the person finally acquitted or convicted of the same offence, to say nothing of other negative consequences for him or her. As observed by the Grand Chamber, “the Court reiterates that Article 4 of Protocol No. 7 is not confined to the right not to be punished twice but extends to the right not to be prosecuted or tried twice (see Franz Fischer [v. Austria, no. 37950/97, 29 May 2001] § 29). Were this not the case, it would not have been necessary to add the word ‘punished’ to the word ‘tried’ since this would be mere duplication. Article 4 of Protocol No. 7 applies even where the individual has merely been prosecuted in proceedings that have not resulted in a conviction. The Court reiterates that Article 4 of Protocol No. 7 contains three distinct guarantees and provides that no one shall be (i) liable to be tried, (ii) tried or (iii) punished for the same offence (see Nikitin, cited above, § 36)” (Sergey Zolotukhin, cited above, § 110).
Furthermore, it would be equally dangerous to introduce here the notion of the good faith of the competent authorities, as the second condition laid down by paragraph 29 of the judgment, referred to above, appears to do. It seems obvious that each time new proceedings were brought for the same offence, the competent authorities could claim to have had no knowledge and to have therefore acted in good faith, with all the practical implications that this entails, not least as regards the burden of proof and the degree of compensation afforded to the person concerned. In Zolotukhin, the Grand Chamber was much stricter on this point, stating as follows: “The Court therefore accepts that in cases where the domestic authorities institute two sets of proceedings but later acknowledge a violation of the non bis in idem principle and offer appropriate redress by way, for instance, of terminating or annulling the second set of proceedings and effacing its effects, the Court may regard the applicant as having lost his status as a ‘victim’. Were it otherwise it would be impossible for the national authorities to remedy alleged violations of Article 4 of Protocol No. 7 at the domestic level and the concept of subsidiarity would lose much of its usefulness” (see Sergey Zolotukhin, cited above, § 115). In other words, the Grand Chamber does not simply accept that the national authorities lacked knowledge, but lays down very stringent and objectively measurable requirements – in the form of acknowledging the violation and affording redress for it, more specifically by terminating or annulling the second set of proceedings and effacing its effects – in order for the applicant no longer to be considered as a victim. Hence, as I see it, paragraph 29 of the present judgment departs significantly from the interpretation of the ne bis in idem principle derived in particular from the passages of the Grand Chamber judgment in Sergey Zolotukhin cited above.
Leaving aside the fact that the paragraph of the present judgment cited above is incompatible, in my view, with Article 4 of Protocol No. 7 as interpreted and applied by the Grand Chamber in Sergey Zolotukhin, it runs counter to the international trend as regards regulation of the ne bis in idem principle. We are aware that, as far back as 1990, Article 54 of the Convention implementing the Schengen Agreement extended the territorial scope of the principle in question to all the Contracting Parties. The Charter of Fundamental Rights of the European Union echoed this idea by extending the scope of the principle to all 27 Member States of the Union. Article 50 of the Charter states as follows: “No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law” (my italics). It is true that the territorial scope of the ne bis in idem principle is a different issue from that under consideration here. Nevertheless, the gradual broadening of the scope of the principle represents a move towards strengthening and consolidating it at international level, whereas paragraph 29 of the present judgment tends in the direction of a relative approach to, and hence a weakening of, that principle.