Abstract
The ne bis in idem principle (procedural defence) proscribes multiple criminal proceedings and punishments for the same criminal offence/conduct, which is predicated on a final verdict of acquittal or conviction by a court of competent jurisdiction. Incorporated as a fundamental human right through Article 4 of Protocol No. 7 annexed to the ECHR and fundamental right safeguarded through Article 50 CFR, the principle is conjoined with the right to free movement of persons through Article 54 CISA. An evaluation of the characteristics, substance, rationale, scope, and limitations associated with the autonomous procedural defence reveals corresponding purposes. CJEU and ECtHR jurisprudence have delineated the scope and limitations of the procedural defence and the two European courts have reciprocally influenced their respective case law. Definitive and practical judicial guidelines on the application of the principle facilitate consistency of approach by diverse national legal systems consistent with the principle of legality. The article provides an interpretative analysis of the procedural defence and associated jurisprudence of the two European courts that aim to ensure consistency of approach by national legal systems notwithstanding the applicability of the margin of appreciation and the principle of subsidiarity. The article concludes with an evaluation of the narrow same criminal offence criterion (idem crimen) commensurate with broader proscribed conduct (idem factum) criterion that is pivotal to the application of the procedural defence and evidently the most litigated aspect of the ne bis in idem principle. The main issue causing tensions between the different streams of case law seems to be the question of the combination of distinct types of proceedings (administrative and criminal), and there is a reciprocal influence of the ECHR and CJEU on this issue.
Keywords
Introduction
The ne bis in idem principle expressed as a procedural defence proscribes multiple criminal proceedings and punishments based on a previous final decision (bis) concerning the same person and the same offence/acts (idem). 1 At European level, the universally recognised principle is codified through important human rights instruments 2 underpinned by the principle of legal certainty. 3 Repeated ordeals in consequence of multiple criminal proceedings and multiple punishments exceeds the requirements of justice. 4 ECtHR and CJEU judicial assessments of verdict finality (bis) are compounded by dual enforcement measures in criminal proceedings and administrative proceedings (criminal in nature). Determinations of the idem concept incorporates two distinct components, the factual circumstances surrounding the proscribed conduct (idem factum) and legal characteristics (idem crimen) of criminal offences.
The article examines the case law of the two European courts, legal frameworks and conclusions on the interpretation of the principle through the lens of fundamental human rights and free movement of persons in a European context. Mutual influences between the two European courts are key to the analysis, which suggests lack of consistency in the interpretation and diverse criteria employed in the application of the principle. The main parts of the article are devoted to analysing in turn the respective case law of the ECtHR (Article 4 of Protocol No. 7 applicable intrastate) and the CJEU (Article 50 CFR and Article 54 CISA, both provisions applicable interstate). ECtHR and CJEU jurisprudence has incrementally developed judicial formulations on the scope of the principle, leaving to national courts the task of applying to diverse legal traditions in terms that are compatible with ECHR, CFR and CISA provisions. Although both European courts are influenced by different ideologies, judicial formulations have fluctuated between the broader idem factum and narrower idem criminal assessments of the same offence/acts. This oscillation between conceptual analyses has produced legal uncertainty concerning the parameters of the principle.
ECHR: Right Not to be Tried or Punished Twice
The principle was omitted from the assembly of internationally recognised fundamental rights enshrined in the ECHR, and whereas the European Commission of Human Rights initially found the legal basis as an element of Article 6(1) right to a fair trial,
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that interpretation was subsequently overruled.
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This lacuna foreshadowed the incorporation of the principle through Article 4(1) of Protocol No. 7 (adopted in 1984) annexed to the ECHR: “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.”
ECtHR jurisprudence has delineated the contours of this provision that reveal the scope and extent of the principle as a human right.
Liable to be tried or punished again
Case law differentiates between the right not to be tried and the right against multiple punishments for the same offence based on a judicious interpretation of Article 4(1). While the ECtHR has not apparently considered the parameters of the right not to be liable to be tried, presumably this stipulation is applicable at the pre-trial stage of criminal proceedings (wherein accused persons would be in jeopardy of arrest, detention, trial and punishment following an acquittal or conviction for the same offence).
Criminal proceedings
The criteria enunciated in Engel 7 (legal classification of offences under national law, the nature and quality of offences, and the severity of punishments) guide judicial determinations on criminal charges for the purpose of Article 6(1). While the second and third criterion are alternative and not necessarily cumulative, this aspect does not prevent a cumulative approach where separate assessments of each criterion is not conclusive as to the determination of a criminal charge. The cumulative element depends on whether the court has reached a definitive conclusion on the nature of the sanction. Engel criteria for determining a ‘criminal charge’ in Article 6(1) apply to the notion of ‘criminal punishment’ under Article 4(1) (such as if proscribed conduct were labelled administrative to circumvent the applicability of Article 6(1)). 8 ECtHR assessments will have regard to a wider range of criteria (than Article 6(1)) when assessing the autonomous meaning of Article 4(1). 9 There is a fundamental distinction between Article 4(1) and Article 6(1) in that complaints under the former will be declared inadmissible where Contracting States have not ratified, 10 or have made reservations delimiting the application of Protocol No. 7. 11
Sanctions imposed by administrative authorities (typically ensuring rigorous compliance with regulatory measures governing public safety, taxation laws, and environmental protection) that might overlap with criminal punishment for the same offence is prevalent in many European states. 12 Coincidence between criminal proceedings and administrative proceedings for the same offence evidences the rationale for many Contracting States diverging from ECtHR jurisprudence that fundamentally prohibits such dual proceedings. That approach might be founded on the margin of appreciation afforded to states when organising national criminal laws and procedures with relevance attached to administrative proceedings. Regulatory enforcement measures by administrative authorities are not necessarily determinative of whether proceedings based on such measures are ‘criminal’ within the meaning of Article 4(1). The interpretative characterisation employed by judicial authorities to accentuate the nature and gravity of conduct by national law “have only a relative value” regarding the term criminal within the meaning of Article 6(1) being autonomous. 13
States are prohibited from invoking national classifications of administrative sanctions (effective, proportionate and dissuasive) that are in effect criminal to circumvent proceedings and the imposition of sanctions from the application of Article 4(1). 14 While the notion ‘criminal’ has an autonomous meaning according to national criminal laws, proceedings and sanctions that are administrative in form but criminal in nature would violate Article 4(1). Whereas proceedings for regulatory enforcement of quasi-criminal conduct (mala prohibita) might not require the same level of resources there is a risk that such proceedings might circumvent judicial scrutiny, and the imposition of punitive administrative sanctions in this context would violate Article 4(1).
Jurisdiction of the same state
Article 4(1) is delimited to the jurisdiction of the same Contracting State therefore complaints regarding duplication of proceedings involving more than one state are inadmissible. 15 This limitation was evident in Krombach v France 16 where submissions pertaining to duplication of criminal proceedings involving a prosecution in France following an acquittal in Germany were inadmissible. Such duplication of proceedings could be prohibited by Article 50 CFR and Article 54 CISA applicable between European states.
Offence
A single criminal episode might involve the commission of multiple offences and the contentious issue is whether accused persons have been tried or punished in separate proceedings for the same offence. ECtHR jurisprudence has oscillated between diverse assessments criteria for determining the idem concept.
Same conduct
Determining the parameters of the same offence notwithstanding how offences are classified under national law is illustrated in Gradinger v Austria. 17 The accused was punished for causing death by negligent driving in criminal proceedings and pecuniary fine in administrative proceedings. The administrative authority determined a specific blood alcohol concentration as given while the original criminal proceeding did not make such finding. The ECtHR concluded that while the offences differed in character, designation, nature, purpose and description, Article 4(1) was violated as both decisions were based on the same conduct. This approach suggests a broad interpretation of ‘offence’ as far as the same conduct may comprise several related offences that should be prosecuted in a single set of criminal proceedings. Conversely, a narrow interpretation based on legal characteristics of offences could potentially expose accused persons to multiple trials and punishments for separate offences based on the same facts.
Same conduct: multiple criminal offences
Purported trials based on the same conduct following previous determinations would suggest the same conduct may constitute several offences that could be tried in separate criminal proceedings. In Oliveira v Switzerland, 18 the accused was convicted of failing to control a vehicle and subsequently in separate criminal proceedings of negligently causing physical injury. The ECtHR concluded that same conduct incorporated several offences whereas Article 4(1) proscribes multiple criminal proceedings for the same offence. Distinct offences derived from the same facts and tried independently by different courts might not violate Article 4(1) if punishments imposed were not cumulative. Two sets of proceedings are not necessarily decisive as illustrated in Göktan v France, 19 where a criminal offence of dealing in illegally imported drugs and a separate customs offence of failing to pay a fine based on the same conduct did not violate Article 4(1). Nonetheless, the efficient administration of justice would be achieved if punishment for both offences were imposed by the same court in a single set of proceedings.
Same essential elements
Legal characteristics of offences were considered in Asci v Austria 20 where the applicant complained that he had been punished twice in respect of the same facts in violation of Article 4(1). The ECtHR emphasised that an assessment of the idem concept should also examine whether such offences have the same elements.
In Franz Fischer v Austria, 21 having analysed Gradinger and Oliveira the ECtHR concluded that a single act comprising more than one offence does not violate Article 4(1), which suggests the inclusion of lesser-included offences on the indictment. However, in cases where different offences based on a single act are prosecuted consecutively, one after the final decision of the other, an assessment of whether such offences have the same essential element is necessary. Multiple criminal proceedings and punishments for the same offence that are ‘nominally different’ would be incompatible with Article 4(1). The administrative offence of driving while intoxicated and the offence of causing death by negligence while allowing himself to be intoxicated had the same essential elements, therefore prosecution and punishment for both offences violated Article 4(1). The ECtHR affirmed that where the elements of offences merely overlapped slightly this would not necessarily proscribe multiple trials and punishments in respect of separate offences.
The same conduct incorporated two separate offences in WF v Austria, 22 where the applicant was punished twice (by the District Administrative Authority under road traffic legislation and subsequently by the District Court which applied exceptional circumstances under the Criminal Code) for driving while intoxicated that violated Article 4(1). In Sailer v Austria, 23 the applicant contended that he was punished twice for driving while intoxicated, first in administrative proceedings and, secondly, in criminal proceedings. The ECtHR found a violation of Article 4(1) and declared that the idem concept is concerned with the same ‘essential elements’ of offences.
In Manasson v Sweden, 24 the essential element that differentiated a contravention of taxation law from the criminal offence was the applicant’s reliance on the incorrect information contained in relevant documents when submitting his tax returns. Consequently, the applicant was not tried twice for essentially the same offence. A similar reasoning was followed in Bachmaier v Austria 25 where the ECtHR found the special aggravating element of driving while intoxicated had been established only in one set of proceedings. Failing to establish this element of the criminal offence, the administrative authorities could subsequently prosecute and fine the applicant for the offence of driving while intoxicated. Therefore, in the circumstances of the case, the prosecution for the administrative offence of driving while intoxicated did not interfere with the right not to be tried twice under Article 4(1). 26
In Hauser-Sporn v Austria, 27 the ECtHR concluded that two offences differed in their essential elements where the offence (under the Criminal Code) of negligently causing bodily harm did not relate to the same act as the administrative criminal offence under road traffic legislation of subsequent failure to inform the police about such an accident. The two offences differed in their essential elements. The essential element of an offence in Schutte v Austria 28 was the dangerous threat of force as a means of resisting the exercise of official authority, whereas a related offence concerned a simple omission in the context of road safety, namely failing to stop at the request of a police officer. The two offences under consideration differed in their essential elements.
Broader principles of criminal liability were considered in Garretta v France
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where two offences encompassed distinct essential elements that were differentiated in terms of their gravity and consequences, the social value safeguarded and criminal intent. Likewise, in Rosenquist v Sweden
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and Haarvig v Norway
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the ECtHR scrutinised the purpose and intention element of tax offences and concluded that offences could be differentiated on this basis. Moreover, in Storbråten v Norway,
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the ECtHR promulgated a wider range of criteria for the purposes of Article 4(1) in comparison with Article 6(1): “…the Court will have regard to such factors as the legal classification of the offence under national law; the nature of the offence; the national legal characterisation of the measure; its purpose, nature and degree of severity; whether the measure was imposed following conviction for a criminal offence and the procedures involved in the making an implementation of the measure.”
Notably, the Court omitted to indicate the respective weight for each criterion and did not specify whether these were alternative or cumulative, which suggests that national courts have a margin of appreciation in that regard.
These cases suggest national courts will be required to deconstruct the nature and scope of related offences in determining whether there has been a violation of Article 4(1) as the categorisation of offences under national law will not always be decisive.
Recalibrated approach
The idem concept was reconsidered by the Grand Chamber in Zolotukhin v Russia
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in consequence of legal uncertainty produced by a diversity of interpretative approaches. A harmonised interpretation of the idem concept was propounded: “…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…The Court’s inquiry should therefore focus on those facts which constitute a set of concrete factual circumstances involving the same defendant and [are] inextricably linked together in time and space…”
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This approach necessitates practical assessments on a case-by-case basis regarding the level of differentiation between the factual circumstances for determining the sameness of offences.
Zolotukhin concerned two sets of proceedings relating to disorderly conduct against a public official wherein the administrative proceeding had become final before the criminal proceeding commenced. The Grand Chamber concluded that determinations of administrative and criminal proceedings, or multiple criminal proceedings concerning the same offence, should be determined by factual assessments. Zolotukhin was significant in promulgating the judicial formulation of a facts-based assessment to determine whether offences were the same (idem factum), as opposed to assessments of the legal characteristics (idem crimen).
The Grand Chamber clarified the word ‘offence’ in Article 4(1) does not justify adhering to a more restrictive approach based on the same elements assessment. Legal characterisations of offences disproportionately restricts individual rights and risks undermining the principle instead of rendering it practical and effective. 35 The ECHR is a living instrument that should be interpreted in the light of contemporary legal environments and in accordance with the principle of effectiveness. 36 Article 4(1) should be interpreted and applied in a manner that ensures the principle is practical and effective and not just theoretical and illusory. 37
The Chamber confirmed that Article 4(1) proscribes trials, or being liable to be tried or punished for the same offence, 38 however the judgment did not provide judicial guidance to resolve cases where proceedings have not been duplicated but have been combined and integrated constituting a coherent set of proceedings. While the Chamber clarified the criteria for assessing the idem concept in multiple proceedings, 39 the Court invoked Engel criteria as the appropriate test for determining whether proceedings were ‘criminal’ pertaining to Article 4(1). It is notable that the judgment did not emulate the line of reasoning in Storbråten v Norway 40 that involved a non-exhaustive and wider range of factors to be considered with no indication of their weight or whether factors were alternative or cumulative. Presumably, such factors would be given consideration by national courts on a case-by-case basis.
In Boman v Finland, 41 the applicant was punished twice in two sets of proceedings: conviction and sentence in criminal proceedings for operating a vehicle without a licence, and in subsequent administrative proceedings the police imposed a further sanction (a driving ban) for operating a vehicle without a driving licence. Both the court and the police imposed the same type of punishment (driving ban) for driving a vehicle without a licence based on the same facts although imposed for different offenses. In its decision the police referred to the fact that the applicant had been driving a vehicle without a licence and that the court had convicted him for this offence by final judgment. The applicant complained this constituted trial and punishment twice in the same matter in violation of Article 4(1). This was not a case of different State bodies imposing diverse types of sanctions in different proceedings. The ECtHR considered that in Zolotukhin if the legal classification test of sameness of offences had been adopted this would have weakened the principle instead of rendering it “practical and effective as required by the Convention.” 42 The ECtHR concluded that Article 4(1) proscribes “the prosecution or trial of a second ‘offence’ in so far as it arose from identical facts or facts which were substantially the same.” 43 The ECtHR unanimously found no violation of Article 4(1), which proscribes consecutive proceedings if the first set of proceedings has already become final when the second set of proceedings is initiated. In a strong Dissenting Opinion Judge Wojtyczek opined the application of the principle requires assessments of “the specific purposes of each procedure, the nature and severity of the applicable sanctions, the practical impact of their accumulation, the margin of appreciation left to State bodies when imposing these sanctions, as well as the order of the different procedures, their length and the detailed rules concerning their articulation and interactions.” 44 Judge Wojtyczek concluded that both proceedings cannot be considered as stages in one single set of proceedings and in his opinion the applicant had been punished twice for the same act in violation of Article 4(1).
Integrated sanctions
Following Zolotukhin, the previous approach comprising the imposition of sanctions by different authorities concerning the same conduct was accepted by the ECtHR as being permissible under Article 4(1), notwithstanding a final decision. This approach is based on the premise that a combination of sanctions might be considered as one making it artificial to view the matter as one of duplication of proceedings leading the applicant to being tried or punished again for an offence previously convicted by a final decision thus in violation of Article 4(1). Judicial interpretations in this regard have been considered under appropriate categories of analysis.
The first classification pertains to withdrawal of licences by administrative authorities not equating to criminal sanctions. 45 In RT v Switzerland, 46 the applicant’s driving licence had been withdrawn for four months by the Road Traffic Office in consequence of driving while intoxicated. The Administrative Appeals Commission and the Federal Court confirmed the administrative sanction. Subsequently, the District Office imposed a suspended term of imprisonment in addition to a fine of 1,100 Swiss francs. The ECtHR found that the Swiss authorities had determined three different, cumulable sanctions for such an offence, namely the possibility of a prison sentence, a fine and the withdrawal of the driving licence. A court of criminal jurisdiction and legitimate administrative authorities had simultaneously imposed these sanctions. The ECtHR concluded that this was not a case of multiple criminal proceedings and sanctions contrary to Article 4(1). The applicability of the principle may be qualified through a calibrated approach concerning proceedings combining criminal punishment and administrative penalties.
The second classification involves assessments of the legal and temporal proximity of offences. In Nilsson v Sweden, 47 different sanctions had been imposed by respective authorities in separate proceedings. The ECtHR found a violation where the accused was convicted of aggravated driving while intoxicated and of driving without holding a driving licence. The imposition of 50 hours’ community service and licence withdrawal for 18 months had been imposed based on the same road traffic offence. The ECtHR introduced a new test of “a sufficiently close connection … in substance and in time.” 48 There was a sufficiently close connection between the imposition of the sanction in both ‘substance’ and in ‘time’ to render the withdrawal of the licence commensurate with sanctions under Swedish national law for the aggravated offence of driving while intoxicated, and the offence of unlawful driving. The withdrawal of the driving licence was a direct and foreseeable consequence of the conviction and, despite being regarded as an administrative measure under national law designed to protect road safety, the ECtHR equated the severity of the sanction with criminal punishment and concluded that the licence withdrawal constituted a ‘criminal’ matter for the purposes of invoking Article 4(1). It is noteworthy that the licence withdrawal did not infer the offender had been “tried or punished again … for an offence for which he had already been finally … convicted” in violation of Article 4(1). A sufficiently close substantive and temporal correlation was found in Boman v Finland 49 between criminal proceedings resulting in conviction and sentence of a €450 fine and disqualification from driving for a period of 4 months and 3 weeks, and the subsequent administrative proceedings that prolonged the disqualification for an additional 1 month.
Both ECtHR decisions in RT v Switzerland and Nilsson v Sweden endeavoured to formulate criteria for assessing whether sanctions for the same acts may be imposed in two sets of proceedings, namely whether there was a “sufficiently close connection” between the different proceedings “in substance and in time.” Whereas proximity in time is an important criterion to consider, the connexion criterion between different proceedings seems obscure based on the diversity of dual enforcement measures in national legal systems.
Thirdly, while dual proceedings are not prohibited regarding the imposition of tax penalties in administrative proceedings and punishment for tax fraud in criminal proceedings, nonetheless a sufficiently close connection in substance and in time might not been satisfied regarding independent proceedings with lack of substantive and temporal connection. 50 In Nykänen v Finland, 51 criminal punishment and the administrative sanctions had been imposed by different Finnish authorities without any connection between both sets of proceedings that proceeded separately and became final independently of each other. The court and administrative authority had not taken into consideration any of the sanctions imposed by the other in determining the severity of the sanction, nor was there any other communication between the judicial and administrative authorities. Tax penalties were imposed based on the applicant’s conduct and liability under the tax legislation that was independent from assessments made in criminal proceedings. The applicant had been convicted twice for the same conduct in separate proceedings in violation of Article 4(1). The ECtHR adopted similar reasoning and conclusions were apparent regarding similar facts in a succession of cases, where separate proceedings were contemporaneous, the temporal connection of its own accord was deemed insufficient for the application of the principle. 52
The second and third classifications notably in cases taken against Finland and Sweden, suggest that where separate proceedings were contemporaneous, it is the lack of a substantive connection that produced a violation of Article 4(1).
The fourth classification involves assessments of dual criminal proceedings, where the ECtHR has found a violation of Article 4(1) without reference to the Nilsson test of a sufficiently close connection in substance and in time. This approach was evident in Tomasović v Croatia 53 where the applicant was convicted twice for the same offence of unlawful possession of drugs, first as an administrative penalty (deemed ‘criminal’ according to the second and third Engel criteria) and subsequently as a criminal offence. The ECtHR found a duplication of criminal proceedings in violation of Article 4(1) as the second set of proceedings had not been discontinued on the conclusion of the first. Two sets of criminal proceedings, one minor and one for a more serious offence are more easily distinguishable, as opposed to dual criminal/administrative proceedings, and therefore the Nilsson test might not have the same purchase in determining whether there had been a violation of Article 4(1).
Whether dual proceedings were independent of each other
Grande Stevens v Italy 54 involved dual proceedings in respect of the same fraudulent conduct. Administrative proceedings conducted before the National Companies and Stock Exchange Commission (followed by appeals to the Court of Appeal and the Court of Cassation) culminating in the imposition of a €3,000,000 fine were deemed ‘criminal’ according to the Engel criteria. This was followed by criminal proceedings before the District Court, with appeals to the Court of Cassation and the Court of Appeal. The ECtHR concluded the subsequent set of proceedings concerned a second ‘offence’ originating from identical conduct to those which had been the subject-matter of the former conviction in violation of Article 4(1). Likewise, the ECtHR found a lack of a substantive connection in Kapetanios v Greece, 55 and confirmed this approach in Sismanidis and Sitaridis v Greece 56 without reference to the Nilsson judicial formation. Both applicants were acquitted of customs offences by final decision in criminal proceedings. Subsequent administrative court-imposed sanctions based on the same conduct were deemed criminal for the purposes of Article 4(1), thus violating this provision.
Article 4(1) does not prohibit national legal systems incorporating administrative proceedings imposing penalties for regulatory offences, such as underpaid tax (albeit constituting a sanction qualifying as criminal for the purposes of Article 6(1) fair-trial guarantee) in addition to criminal proceedings where appropriate for an additional element in the non-payment (for instance fraudulent conduct, which has not been addressed in the administrative procedure for tax recovery and sanction). Neither does this provision inhibit national legal systems from adopting an integrated approach incorporating the social harm caused by the offence, and dual proceedings pertaining to the harm response to the offence by different authorities and for different purposes. Dual proceedings originating in cases such as RT v Switzerland 57 and Nilsson v Sweden, 58 and revisited in Nykänen 59 and progressive jurisprudence on the issue, provide guidance for national legal systems to situate a fair and proportionate balance between the principle while concurrently accommodating legitimate interests of society in the prosecution and punishment of offenders through adopting a calibrated regulatory approach.
The ECtHR will determine whether there has been a final decision in one set of proceedings, potentially barring the continuation of dual proceedings, before applying the sufficiently close connection in substance and in time assessment, to determine the absence of the bis element of the principle. Whether there has been a final decision is irrelevant where the practical realities underscores combined proceedings in effect constituting an integrated set of proceedings as opposed to dual proceedings for essentially the same offence. The sufficiently close connection in substance and in time assessment will not be satisfied if one or other of the two elements, substantive, or temporal, is absent from the dual proceedings.
Having a requirement that connected proceedings become final simultaneously could enable the exploitation of the principle as an instrument for manipulation and impunity through multiple criminal proceedings and punishments and administrative proceedings and penalties for the same offence. The conclusion in Nykänen 60 that “both sets of proceedings follow their own separate course and become final independently from each other” pertains to a finding of fact. The Finnish legal system did not have a sufficient connection in substance between the administrative proceedings and the criminal proceedings, even though both sets of proceedings were conducted contemporaneously. Nykänen illustrates the “sufficient connection in substance and in time” assessment on the particular facts of that case, which invariably differ on a case-by-case basis in accordance with national criminal laws and procedures.
The order in which the proceedings are conducted will not necessarily be decisive of whether dual proceedings is permissible under Article 4(1), which is illustrated in RT v Switzerland 61 that involved the revocation of a licence affected before the criminal proceedings, and Nilsson v Sweden 62 where the revocation took place subsequently.
Zolotukhin reconsidered
A and B v Norway 63 concerned the combination of sanctions imposed in dual tax proceedings and criminal proceedings. Two taxpayers claimed they had been prosecuted and punished twice for the same offence in administrative proceedings (payment of a fine) and subsequent criminal proceedings (imprisonment for tax fraud). The Grand Chamber comprehensively reviewed the case law on the scope and application of the principle and effectively abandoned the idem factum approach formulated in Zolotukhin and reinstated the idem crimen criterion. The public prosecutor had imposed tax sanctions on the applicants, which they had paid. Subsequently, they were convicted and sentenced by the criminal court. The applicants claimed to have been prosecuted and punished twice in respect of the same offence under tax assessment legislation. The ECtHR noted the applicants had not been “tried or punished again … for an offence for which he had already been finally … convicted.” The Court concluded that a duplication of administrative and criminal proceedings and penalties/punishment for the same violation of national tax law does not infringe the principle enshrined in Article 4(1) where the administrative and criminal proceedings have a sufficiently close connection in substance and time. 64 In a strong Dissenting Opinion Judge Pinto De Albuquerqe opined the judgment will disturb the progressive and mutual collaboration between the two European courts, adumbrating the CJEU broader idem factum approach over the ECtHR narrow idem crimen approach promulgated in A and B. Moreover, Judge Pinto De Albuquerqe opined that the Grand Chamber in Zolotukhin did not decide to downgrade the inalienable individual right to a fluid, narrowly construed and illusory interpretive assessment. 65
Finally acquitted or convicted
The “finally acquitted or convicted” requirement was formulated with a view to contentious situations where the final judgment on the merits (excepting a discharge of proceedings) was not subject to further appeal or review. A decision is final regardless of its nomen juris if “it has acquired the force of res judicata,” when no further ordinary remedies in the national legal system are available or time limits for appeal proceedings have been exhausted. 66 The time when a decision became res judicata according to national rules of evidence and procedure are pivotal. Consequently, if the previous criminal proceedings were terminated before verdict, there is no legal impediment per se against retrials for the same offence. It is noteworthy that neither the wording of Article 4(1) nor its drafting history or jurisprudential interpretative analysis incorporate a situation nor provides any guidance for situations where the final decision was by an administrative authority. 67 Only if a penalty imposed by such authority is deemed ‘criminal’ will the courts be required to make an assessment as to whether there has been a violation of Article 4(1).
Criminal law and procedure of contracting states
Article 4(1) is confined to intrastate application that may cause procedural dilemmas as the defining characteristics of offences invariably differ between states. Consistency of approach with ECtHR jurisprudence will inevitably be influenced by the diversity of national legal systems commensurate with the margin of appreciation. Legal characterisations of national substantive laws procedures cannot be the sole criterion of relevance for the applicability of the principle under Article 4(1). Otherwise, this provision would be subject to the wide measure of discretion vested in Contracting States that might have consequences that are incompatible with Convention provisions.
Reopening criminal cases
Retrials for the same offence are possible in accordance with Article 4(2) : “The provision of the preceding paragraph [Article 4(1)] shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is new or newly discovered facts, or there has been a fundamental defect in the proceedings, which could affect the outcome of the case.”
The qualification on finality of criminal judgments in circumstances where national law provides a legal mechanism to reopen criminal proceedings is typically based on new and compelling evidence against the accused person, tainted acquittals or with prejudice appeals.
In Nikitin v Russia, 68 the ECtHR underscored the distinction in Article 4(1) and 4(2) between the prohibition against multiple criminal proceedings and punishments and the reopening of criminal proceedings in exceptional circumstances. The applicant complained that supervisory review proceedings conducted after a final acquittal violated Article 4(1). The prosecution contended the applicant was at least ‘liable to be tried’ again on the same counts. The ECtHR concluded the applicant was not ‘tried’ again and was not ‘liable to be tried’ on a second occasion as the supervisory review could be considered a re-opening of a finally decided criminal case that was consistent with Article 4(2). 69
Non-derogable
Unlike Article 6 but like Article 7, the principle is non-derogable under Article 4(3) of Protocol No. 7 which stipulates “[n]o derogation from this Article shall be made under Article 15 of the Convention.” Purported derogations cannot be justified under any circumstances (such as in times of war, internal conflict, and terrorism). 70 This bestows enhanced protection for accused persons that underscores the nature of principle as a fundamental human right.
CFR: Right Not to be Tried or Punished Twice in Criminal Proceedings for the Same Criminal Offence
Article 50 CFR stipulates: “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.”
The interstate application of the principle extends to the territorial area of the EU within the scope of this provision. 71
Criminal proceedings
CJEU jurisprudence formulated criteria for assessing whether proceedings and punishments are criminal namely legal classifications of the offences under national law, intrinsic nature of the offences, and the degree of severity of the punishment imposed on the convicted offender, 72 which accord with Engel criteria in assessing Article 4(1) and Article 6 ECHR. In that regard, assessments by national courts will determine whether criminal and administrative proceedings and punishments/penalties in the main proceedings are criminal in nature for the purposes of Article 50. CJEU jurisprudence also provides clarification on the scope of this provision as guidance for national courts when conducting such assessments. 73
Article 50 is not limited to proceedings and penalties that are classified as criminal under national laws, and extends (regardless of such classifications) to proceedings and penalties that are determined to have a criminal nature based on the other two Engel criteria. As regards the second criterion, concerning the very nature of offences, national courts must determine whether the objective of the penalty is punitive. 74 Penalties with punitive objectives are deemed criminal for the purposes of Article 50; whereas a penalty may also pursue a deterrence objective this does not exclude a determination as to whether it is criminal punishment. The very nature of criminal punishments are to punish and to deter wrongdoing. Measures that merely repair damage caused by the offence are (presumably) not criminal in nature.
Duplication of proceedings and penalties that is permissible under the national laws of states constitutes a limitation of the right guaranteed by Article 50. National legislative measures that provide broad concepts for the purpose of determining conduct liable to bring about duplication of proceedings and penalties of a criminal nature were considered in Garlsson Real Estate. 75 National legislation in the main proceedings allowed the possibility of bringing administrative proceedings of a criminal nature against the accused person regarding unlawful conduct involving market manipulation for which the same accused had already been finally convicted. The CJEU concluded that duplication of criminal proceedings and penalties might be justified where they pursue complementary aims relating to several aspects of the same proscribed conduct as determined by national courts.
CJEU jurisprudence has considered whether Article 50 permits the combination of administrative proceedings and criminal proceedings for the same offence in cases referred by Italy for a preliminary ruling concerning the compatibility of the duplication of proceedings and punishments with principle. 76 The CJEU concluded that duplication of criminal proceedings and punishments and administrative penalties against the same person regarding the same acts could be permissible as limitations on the principle in defined circumstances. 77 Limitations of the principle must be proportionate and strictly necessary to achieve the stated objectives (such as protecting the financial interests of the EU).
In Menci, 78 the CJEU concluded that Article 50 does not preclude national laws permitting criminal proceedings following administrative proceedings and penalties criminal in nature concerning the same acts (failing to pay value added tax). In that regard, national legislation must satisfy certain criteria: pursue objectives of general interest that justifies duplication of proceedings and penalties and the pursuance of additional objectives are necessary; rules ensuring coordination of proceedings that limits to what is strictly necessary the additional disadvantage that results for accused persons from duplication of proceedings; provides for rules ensuring the severity of combined penalties is limited to what is strictly necessary in relation to the seriousness of the offence concerned.
Compliance with the principle of proportionality is an imperative. National legislation providing for duplication of proceedings must not exceed what is appropriate and necessary to achieve the legitimate objectives of such legislation. Furthermore, the least onerous measure must be invoked and disadvantages caused to accused persons must not be disproportionate to the aims pursued by the legislation. 79
Offence
Article 50 proscribes trials and punishments of the same accused person more than once for the same offence. 80 CJEU jurisprudence stipulates the relevant criterion for the assessing the idem concept is identity of the material facts, understood as the existence of a set of concrete circumstances that are inextricably linked together that culminating in a final acquittal or conviction. Article 50 prohibits the imposition of multiple punishments concerning identical facts in multiple proceedings brought for those purposes. 81 Legal classifications of the facts and the legal interest protected under national law are not relevant for the purposes of assessing the idem concept. The nature and scope of the principle conferred by Article 50 should not vary between states.
CJEU jurisprudence has not ruled on the issue as to whether the prohibition is applicable to administrative penalties criminal in nature or to multiple sanctions imposed following criminal and administrative proceedings. Concomitant with judicial determinations of ne bis in idem provisions in cognate international instruments it is likely that a similar approach will be taken with Article 50 CFR. Given the nature and scope of this international instrument there is no ostensible reason the CJEU would not interpret the provision as being equally applicable to all criminal sanctions imposed following administrative or criminal proceedings, under national law or in a transnational context. 82
The principle does not preclude a combination of criminal penalties and other types of penalties that are not criminal in nature. In Åklagaren v Åkerberg Fransson, 83 the CJEU held that criminal and administrative sanctions may only simultaneously be imposed provided that the administrative penalty is not criminal in nature. The CJEU concluded that after the imposition of a final administrative penalty criminal in nature, Article 50 precludes criminal proceedings in relation to the same acts against the same person. National courts shall determine whether the remaining penalties are effective, proportionate and dissuasive. Article 50 does not preclude Member States from imposing successively, for the same acts a tax penalty and a criminal penalty in so far as the administrative penalty is not criminal in nature, a matter which is for the national court to determine.
The scope and application of the principle in cases involving the combination of criminal and administrative sanctions necessitates an assessment of the concept ‘criminal nature.’ The CJEU in Menci, 84 Åkerberg Fransson 85 and Bonda 86 invoked Engel criteria and followed ECtHR case law in that regard. While the proscribed conduct may be labelled an administrative offence, on consideration of the nature or severity of the sanction may constitute in substance a criminal offence.
The CJEU recently clarified the scope and operation of the principle in the context of competition law where companies had been investigated for the same conduct by several authorities. 87 In Bpost, 88 the CJEU confirmed that duplication of proceedings may be justified where the proceedings follow complementary objectives. The same conduct may result in separate sectoral and competition law investigations, provided that the investigations are sufficiently coordinated and conducted within a proximate timeframe. The totality of penalties imposed must be proportionate to the gravity of the offences. Nordzucker 89 concerned overlapping antitrust investigations and the CJEU concluded that only one authority should determine a factual element with the purpose of determining whether there has been an infringement and to establish liability, notwithstanding both authorities may find the factual element relevant. Both judgments invoked the idem factum assessment of offences. Significantly, protection of legal interests could be invoked as part of an ex post assessment of proportionate punishments under Article 52(1) once bis in idem had been established. Both CJEU judgments in Nordzucker and Bpost consolidated previous case law governing the principle and formulated a single assessment based on Article 50. In that context, it seems that Member States may retain the possibility to artificially sub-divide enforcement measures, thus avoiding a violation of the principle. Where alleged violations of the principle are raised, CJEU assessments require additional constructs of coordination that grant additional opportunities for double enforcement mechanisms within and across EU Member States. Consequently, the application of the principle could be limited in that context. 90
Within the EU
One of the most prominent issues pertaining to the prosecution of offences under European law is ensuring prosecutions remain within the framework of legal certainty in criminal proceedings commensurate with the expansion of fundamental rights protections in a harmonious, but not necessarily harmonised manner.
91
Article 51(1) stipulates: “The provisions of this Charter are addressed to the institutions and authorities of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles, and promote the application thereof in accordance with their respective powers.”
92
The Explanatory Memorandum clarifies that Article 51 determines the field of application and “seeks to establish clearly that the Charter applies primarily to the institutions and authorities of the Union, in compliance with the principle of subsidiarity.” 93
Qualified right
Limitations on the exercise of the fundamental right guaranteed by Article 50 may be justified based on the derogation clause. Article 52(1) stipulates: “Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.”
Duplication of proceedings may be justified for the purpose of achieving complementary aims, subject to the conditions thereof. Limitations must comply with legal certainty and the principle of proportionality, namely provided for by law, respect the essence of the principle, on balance safeguard the rights and freedoms of others and proportionate to achieving the legitimate objectives of the EU. 94
Article 50, read in conjunction with Article 52(1) CFR, tolerates a duplication of criminal proceedings and punishments, and administrative proceedings and penalties, ensure a level of protection for accused persons commensurate with Article 4(1) and 4(2) ECHR. In Menci, 95 the CJEU considered the strict necessity element of the limitation of rights clause in Article 52(1) CFR regarding dual proceedings and concluded this provision must be interpreted as not precluding national legislation permitting criminal proceedings against an accused person for omitting to pay tax in circumstances where the accused had previously been subject to a punitive administrative sanction in relation to the same acts. It is noteworthy that the court stipulated certain conditions: wherein national legislation pursues a legitimate objective justifying a duplication of proceedings; must be strictly necessary containing rules that ensure a coordinated approach limiting dual proceedings to what is strictly necessary and not disproportionately overburdensome for accused persons; the overall severity of punishments/penalties imposed are proportionate and limited to what is strictly necessary and proportionate to the gravity of the proscribed conduct. 96 Significantly, the CJEU has emphasised that judicial authorities of national legal systems must ensure that accused persons are not excessively disadvantaged by dual proceedings commensurate with the gravity of the offence. 97
CISA: Free Movement of Persons
The interstate application of the principle between European states is provided by Articles 54 CISA which stipulates: “A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party.”
The purpose this provision is “to ensure that no one is prosecuted on the same facts in several Member States on account of his having exercised his right to freedom of movement,” 98 and facilitates European integration thus enhancing an area of freedom, security and justice. 99 The principle only binds States Parties to the CISA. 100 According to Article 58, this provision “shall not preclude the application of broader national provisions on the ne bis in idem principle with regard to judicial decisions taken abroad” which provides enhanced applications of the principle.
Trial finally disposed
The concepts ‘finally disposed of’ for the ‘same acts’ have been liberally interpreted to facilitate their application to final judgments of acquittal or conviction but also regarding decisions to formally discontinued prosecutions. This approach was adumbrated in Gözütok and Brügge 101 where the CJEU concluded the principle was applicable where national prosecuting authorities discontinued criminal proceedings owing to ostensible ‘out-of-court settlements,’ once the accused has fulfilled the required obligations. Gözütok was charged with being in possession of large amounts of marijuana. He entered into a plea agreement with the Dutch prosecution authorities under which in return for making a financial settlement the criminal charges were dropped. Brügge was charged with assault and wounding by the Belgian authorities and the criminal charges were dropped in return for making an out of court settlement. Gözütok and Brügge subsequently travelled to Germany and were charged with the offences; the German prosecution authorities had argued that they were not bound by Article 54 as both cases had not been disposed of by a court but rather discontinued by prosecution authorities in other states.
In Miraglia, 102 the CJEU concluded that Article 54 is not applicable to a decision of the judicial authorities in one Member State declaring a case closed if the prosecution authorities did not initiate a prosecution on the sole ground that criminal proceedings have commenced in another Member State against the accused for the same acts. Such outcomes will not constitute a decision finally disposing of the case within the meaning of Article 54. The consequence of applying the principle to a decision to close criminal proceedings would render it impossible to punish the accused’s unlawful conduct in the state concerned. Miraglia builds upon the interpretation of Article 54 in Gözütok and Brügge in that the CJEU concluded the principle is not applicable to decisions taken without regard to the merits of the case. Dutch prosecutors had closed their investigations in a case involving illicit drugs when they became aware that concurrent proceedings had been commenced in Italy regarding the same criminal acts. The principle was not applicable to the accused in the circumstances of the case because otherwise would prevent a substantive investigation into the facts. 103
Gözütok and Brügge, and Miraglia judicial formulations do not resolve the bis element of the principle and further clarification is necessary for national legal systems to determine the kind of judicial or administrative decision that would be required to proscribe multiple proceedings. In M, 104 the CJEU examined the meaning of ‘finally disposed’ in the context of whether a final judgment of no case to answer given by a Member State following an extensive preliminary investigation as part of investigations in connection with proceedings which could be re-activated in the event of fresh evidence, preclude the initiation or conduct of proceedings in respect of the same facts and the same person in another State. The CJEU concluded that such an order equated to a final judgment. 105 In Kossowski, 106 the CJEU concluded that verdict finality should be interpreted broadly to encompass not only to final judgments by courts of competent jurisdiction but also to decisions that definitively terminate criminal proceedings. The CJEU considered the transnational application of the principle, elaborated on the concept of ‘final decision’ within the scope of Article 54, and specified the requirement of a “decision given after a determination has been made as to the merits of the case” regarding a pre-trial dismissal for lack of evidence. 107 Seminal CJEU jurisprudence has delineated the contours of the principle, which is also applicable to procedures for discharging criminal proceedings typically owing to plea bargain agreement by which the public prosecutor dispenses with the case, without judicial intervention or court proceedings, or criminal proceedings after the accused has fulfilled specified obligations. 108
Same acts
Judicial interpretation of the ‘same acts’ established the identity of the material acts as the relevant criterion, understood as the existence of a set of concrete circumstances. National authorities must determine whether the material acts in the two proceedings constitute a set of facts that are inextricably linked together in time, space, intentional scope and subject-matter. 109 The CJEU has consistently stated that an interpretation based on idem factum affords enhanced protection for accused persons as this approach is independent from the legal characteristics of offences in national legal systems. 110 Based on this jurisprudence and in line with Article 54, two offences should be considered inextricably linked if the underlying facts are substantially identical, regardless of their legal classification, such that a decision on the merits of one would bar the prosecution of the other.
The CJEU determination as to whether to follow the Opinion of Advocate General Ruiz Jarabo Colomer in Van Esbroeck 111 regarding the scope of ‘same acts’ is illustrative of potential future directions in the evolution and application of the principle. The CJEU was requested to differentiate between two separate acts of importation of illegal drugs into Norway and exportation of the same drugs from Belgium. The Court had to determine whether the idem concept in the ‘same acts’ stipulation should be understood in a legal sense, as acts constituting the same offence in dual proceedings, which seems to be synonymous with a broader factual sense as ‘same facts.’ Advocate General Colomer clearly supported the adoption of the broader factual interpretation based on the same acts regardless of the legal classification. 112 The CJEU concluded “the relevant criterion for the purposes of the application of that article is identity of the material acts, understood as the existence of a set of facts which are inextricably linked together, irrespective of the legal classification given to them or the legal interest protected.” 113 If the principle were confined to acts that were qualified in the same way by national legal systems, accused persons could be exposed to the possibility of criminal proceedings having entered another state. This line of reasoning was followed in Mantello, 114 wherein the CJEU followed the reasoning of Advocate General Ives Bot who emphasized that the meaning of ‘same acts’ is an autonomous concept of EU law and should be interpreted according to the acquis developed for Article 54.
Enforcement of penalty
Article 54 CISA is subject to the enforcement of the sanction, whereas neither Article 4(1) of Protocol No. 7 ECHR nor Article 50 CFR incorporate an equivalent stipulation. Such diversity of approaches were considered in Spasic 115 where the CJEU reconsidered the possibility of commencing a second prosecution for the same facts, on the basis that this procedure would be more effective in ensuring the security goal of the (then) EC. The CJEU concluded that the additional condition is compatible with Article 50 CFR 116 and the mere payment of a fine by a person sentenced to a custodial sentence that has not been served is not insufficient within the meaning of Article 54. 117 It is noteworthy in the judgment that mutual trust and recognition of judgments in conjunction with the principle were superseded for primacy of security concerns.
Derogable
Unlike Article 4(3) ECHR, Article 55 CISA in the same way as Article 52(1) CFR, tolerates exceptions to the principle and declarations not to be bound by Article 54: “… (a) where the acts to which the foreign judgment relates took place in whole or in part in its own territory; in the latter case, however, this exception shall not apply if the acts took place in part in the territory of the Contracting Party where the judgment was delivered; (b) where the acts to which the foreign judgment relates constitute an offence against national security or other equally essential interests of that Contracting Party; (c) where the acts to which the foreign judgment relates were committed by officials of that Contracting Party in violation of the duties of their office.”
The level of protection afforded to accused persons by Article 54 is qualified by Article 55, and the propensity for inconsistent approaches by states in this regard compounds the transnational application of Article 54.
Analysis
The foregoing analysis of the interrelated provisions reveals practical dissimilarities concerning the scope and application of the principle in a European context owing to (apparent) judicial uncertainty compounded by diverse national legal traditions. 118 Article 4(1) of Protocol No. 7 ECHR (intrastate application) and Article 50 CFR (interstate application) prohibits multiple ‘criminal proceedings’ and punishments for the same ‘offence.’ Article 54 CISA (interstate application) does not refer to ‘criminal proceedings’ and instead of ‘offence’ refers to the ‘same acts’ (presumably the legislative intent was to include omission liability), and incorporates the additional condition (enforcement of penalty). 119 CJEU jurisprudence has aligned the concept same ‘offence’ in Article 50 CFR with the notion of same ‘acts’ in Article 54 CISA and same ‘offence’ in Article 4(1), which suggests a harmonious approach (albeit different outcomes) by the two European courts when assessing the interrelated provisions. 120 Interpreting the scope and application of these provisions must also consider the functions of the principle that are not revealed in respective ECHR, CFR, and CISA explanatory memoranda. The principle safeguards individual rights through finality of criminal judgments (res judicata), preserving the authority of the courts, enhancing legal certainty and the integrity of criminal proceedings. In Van Esbroeck, 121 Advocate General Ruiz Jarabo Colomer reiterated the rationale of the principle, which incorporates an expression of the legal protection of individuals against states’ unjustified ius puniendi derived from the right to a fair trial and due process guarantees; it is a structural requirement of the legal system and its lawfulness is founded on respect for res judicata. Once the conditions of Article 4(1), Article 50 and Article 54 have been fulfilled, accused persons benefit from the principle as these provisions are not linked to European citizenship.
The change of course from the idem factum assessment in Zolotukhin 122 to idem crimen in A and B 123 significantly weakened the level of protection afforded to accused persons. In A and B, the ECtHR did not find a violation of the principle because administrative penalties and criminal punishments were based on the same facts (idem factum) notwithstanding the additional factual element of fraud in the criminal offence. The ECtHR concluded the criteria should not be the order of dual proceedings but rather the relationship between the criminal offence and administrative proceedings (sufficiently close connection in substance). Furthermore, the ECtHR considered both sets of proceedings simultaneous and interconnected (sufficiently close connection in time). Significantly, the ECtHR considered the dual system of enforcement should be disregarded as the accused knew it was possible to be criminally convicted and have a tax penalty imposed in administrative proceedings. The restriction on the principle was therefore not disproportionate and not unnecessary considering the close connexion between the proceedings. Building on Engel criteria, the ECtHR adopted a broader analysis and considered the possibility of combining criminal sanctions with administrative sanctions notwithstanding both sanctions being criminal in nature provided there was a sufficiently close connection in both substance and time between the two sets of proceedings. 124 Regarding the connection in time criterion the ECtHR concluded that it was not mandatory for the two sets of proceedings to take place at the same time, albeit the issue of simultaneity will facilitate an assessment of whether there was a violation of Article 4(1). Furthermore, the ECtHR considered material factors for determining whether there was a sufficiently close connection in substance: whether the complementary purposes of different proceedings address, in abstracto and in concreto different aspects of the social misconduct; whether the duality of proceedings in law and in practice concerned is a foreseeable consequence of the same offence (idem); whether the relevant sets of proceedings are conducted to avoid any duplication in the collection as well as the assessment of the evidence through adequate interaction between the competent authorities to ensure that the establishment of facts in one set of proceedings is used in the other set of proceedings; whether the sanction imposed in the first set of proceedings that became final (res judicata) is taken into account in the second set of proceedings that become final last, to ensure that the sanctions imposed are proportionate and do not constitute an excessive burden on convicted offenders. 125 In a robust dissenting opinion, Judge Pinto De Albuquerque fervently considered the inalienable right safeguarded by the principle had been downgraded to a fluid, narrowly construed, and illusory individual right. 126 In that regard, the idem crimen assessment of the idem concept facilitates a punitive policy based on multiple proceedings by different state agencies albeit strategically connected to pursue repressive policies. Judge Pinto De Albuquerque criticised the proximity test formulated by the ECtHR asserting that such criterion is ambiguous, arbitrary, and referred to inconsistencies in this regard in previous case law. This salutary dissenting opinion is reinforced by the Opinion of Advocate General Campos Sánchez-Bordona before the CJEU in Menci 127 in that the judgment in A and B has lowered the level of protection afforded to accused persons by Article 4(1). The diverse approaches by the comprehensive Grand Chamber judgments Zolotukhin and A and B evidences the inherently complex nature the principle between national legal systems and divisiveness as to judicial assessments on the nature and scope of the principle. Whether such conflicting approaches to the interpretation of the principle can be reconciled with the principle of legal certainty, commensurate with diverse national criminal laws and procedures, will depend on the effectiveness of the corresponding Article 6(1) right to a fair trial (albeit this provision is not applicable in administrative proceedings).
The corollary of ECtHR developments is whether the CJEU should have followed the line of reasoning in A and B and adopted a more restrictive approach (idem crimen) to the application of the principle, or alternatively to retain a higher level of protection (idem factum). In Menci, 128 Garlsson Real Estate 129 and Di Puma and Zecca, 130 CJEU was confronted with a challenging decision: either stay with the path set out by the Court in Åkerberg Fransson or follow the ECtHR and thereby weaken the efficacy of the principle. The ECtHR has considered the opinion of Advocate General Cruz Villalón before the CJEU in Åkerberg Fransson regarding the imposition of penalties under administrative law and criminal law concerning the same offence is a widespread practice among EU Member States, particularly regulatory measures concerning taxation, the environment, and public safety concerns. The Advocate General emphasised that states varied considerably in the measures adopted to accumulate sanctions many of which are unique to national legal systems. The purpose of such measures is to moderate the severity of imposing two sanctions by legitimate state authorities. 131
The CJEU did not follow the Opinion of Advocate General Cruz Villalón and adopted a similar but not identical approach as that of the ECtHR. 132 The Court concluded that Article 50 CFR does not preclude Member States from imposing successively, for the same acts of non-compliance with tax obligations, a tax penalty and criminal punishment provided that the administrative penalty is not criminal in nature, which is a matter for national courts to determine. 133 Notably, the Court in Menci 134 concluded that the application of Article 50 CFR requires assessments of the same material facts which, regardless of their legal classification, must be the basis for the imposition of administrative penalties and criminal punishments.
The Opinions of Advocate General Bobek to Bpost 135 and Nordzucker 136 proposed to combine the idem factum and idem crimen assessments in the context of competition law cases, advocating that an idem situation could only exist when the purpose of the two enforcement actions was to protect the same legal interest. 137 In that regard, Advocate General Bobek stated: “[t]hat is generally not possible when the offences committed relate to different areas of law, each of which remains under the control of a different regulatory authority…[U]nder those circumstances, a second set of proceedings is always inadmissible because it relates to the same facts actually precludes the possibility of different legal interests being pursued in parallel.” 138 Advocate General Bobek opined “[w]hen applicability of Article 50 of the Charter is defined ex ante, ne bis in idem might be able to guarantee that no second set of proceedings will take place, if need be, barring the second procedure from even commencing.” 139 This proposal advocated for the idem crimen criterion. The CJEU did not follow the Advocate General’s proposal and instead adopted an idem factum assessment however, protection of legal interests could be invoked as an ex post proportionality assessment under Article 52(1), once bis in idem had been established. The CJEU concluded that the only relevant criterion for the purposes of assessing the existence of the same offence (idem) is identity of the material facts, understood as the existence of a set of concrete circumstances that are inextricably linked together and which have resulted in the final acquittal or conviction. 140 Moreover, the CJEU stated that such circumstances must emanate from events that are substantially the same, since they involve the same accused and are inextricably linked together in time and space. 141 For that reason, as regards identical facts, Article 50 proscribes the imposition of several criminal penalties as a consequence of different proceedings instigated for those purposes. 142 It is notable that when elaborating on the idem condition both judgments omitted references to former competition law cases wherein the idem crimen assessment was advocated, which suggests the CJEU implicitly overruled previous case law on the principle in competition law and invoked the idem factum assessment in that context. 143
This idem factum assessment criterion of Article 54 CISA has been confirmed in a succession of CJEU judgments. The Court has concluded that the relevant criterion for the purposes of the application of that provision is identity of the material acts, understood as the existence of a set of facts which are inextricably linked together, irrespective of the legal classification given to them or the legal interest protected. 144
Duplication of criminal proceedings and punishment and administrative proceedings and penalties of a criminal nature for the same act (the so-called ‘double-track enforcement system’ that pertains in many European jurisdictions) constitutes a limitation of the fundamental right guaranteed by Article 50, 145 which may be justified based on Article 52(1) provided that certain conditions are satisfied. 146 Administrative proceedings imposing penalties of a criminal nature following a final verdict in criminal proceedings is subject to strict compliance with the principle of proportionality. 147 In Menci, 148 the Italian District Court referred for a preliminary ruling the question whether Article 50, interpreted in the light of Article 4(1) and associated ECtHR jurisprudence, proscribes criminal proceedings for an act (non-payment of tax) for which a final administrative sanction had been imposed on the accused person in relation to the same act. 149 The CJEU concluded that the conditions to which Article 50 read in conjunction with Article 52(1) subjects an accused to duplication of criminal proceedings and penalties, and administrative proceedings and penalties of a criminal nature, ensures a level of protection that is not in conflict with the principle guaranteed by Article 4(1) as interpreted by the ECtHR.
Many European states make provision for circumstances wherein different sanctions for the same proscribed conduct may be imposed in diverse types of (dual) proceedings. The apparent customary practice in many states is that competence for imposing sanctions for the same offence is divided between different state agencies typically applying dissimilar substantive and procedural rules.
Dual criminal and administrative proceedings based on the same proscribed conduct that may constitute a criminal offence and administrative offence may be permissible in states to enforce the objectives of both measures. Contracting States to the ECHR enjoy a margin of appreciation to adopt national legal systems in accordance with a state’s choosing, which invariably includes criminal justice and sentencing processes. 150 States exercise self-determination regarding complementary legal responses to wrongful conduct through different procedures forming a coherent whole as a necessary and proportionate response to various aspects of socially offensive conduct. This process is subject to the proviso that an accumulation of legal responses should not be disproportionate to the gravity of offences and punishments imposed, which must be proportionate. 151
While the application of ECHR provisions within the EU law context provides the lowest level of protection, the CFR will conceivably demand a higher level of protection for accused persons. The ECHR does not constitute, on the assumption that the EU has not acceded to it, a legal instrument that has been incorporated into EU law. 152 The CFR is directly and immediately applicable in each Member State under Treaty of Lisbon, 153 which permeates a higher level of protection for accused persons. 154
The divergent approaches between states concerning dual criminal/administrative proceedings and the imposition of punitive administrative sanctions and criminal punishments for the same offence/acts was to the forefront during the negotiations on the accession of the EU to the ECHR wherein the EU and Member States resolved to exclude Protocol No. 7. This is significant and suggests a divergence of interpretations and application of the principle according to national criminal laws and procedures. This would appear to accord with the margin of appreciation afforded to Contracting States to the ECHR analogous to the principle of subsidiarity between Member States of the EU. The diversity of substantive laws and procedures between sovereign states is a dominant consideration in the establishment of a harmonised approach to the European ne bis in idem principle that would be applicable to all cases involving a combination of criminal proceedings, or administrative and criminal proceedings.
Article 6(3) TEU stipulates that fundamental rights enshrined in the ECHR constitute general principles of EU law. Moreover, according to the explanations relating to Article 52 CFR, the objective of Article 52(3) is to ensure consistency between CFR and ECHR jurisprudence by establishing the principle that: “[i]n so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.” The last sentence of this provision allows the EU to potentially guarantee more extensive protection that ECHR. This ‘homogeneity clause’ is paradigmatic for the continued symbiotic relationship between EU (CFR and CISA) and ECHR legal orders. 155 CFR enshrined rights correspond to parallel rights enshrined in the ECHR, which have the same meaning and scope as ECHR rights and Protocols thereto “without thereby adversely affecting the autonomy of Union law and … that of the Court of Justice of the European Union.” 156 Therefore, a consideration of Article 4(1) and (2) of Protocol 7 ECHR will be necessary for the purpose of interpreting Article 50 CFR (and presumably Article 54 CISA). 157 In that regard, the ECtHR has concluded that duplications of tax and criminal proceedings and penalties for the same infringement of tax law does not violate Article 4(1), where the tax and criminal proceedings under consideration have a sufficiently close connection in substance and time. 158
Jurisprudence emanating from both European courts have been invoked in assessments as to whether specific issues of criminal liability are identical for the purpose of the scope and application of the principle. The oscillation between tests invoked in both European courts between assessments of the legal characterisation (idem crimen) of the facts, whereas the facts themselves have been assessed on other cases (idem factum), highlights the inherent complexities regarding the interpretation and application of the of the principle commensurate with diverse national legal systems. Significantly, cases such as Boman v Finland illustrate that whichever criterion were applied the outcome would effectively be the same as both sets of proceedings involved the same facts (namely driving the car without a licence).
Although the foregoing analysis of the ne bis in idem principle enshrined in the ECHR, CFR and CISA might suggest the application of the respective provisions are moderately harmonised in appearance and composition at surface level, their tributaries vary greatly. While it may be said that three streams of the principle are flowing in the same channel proscribing multiple trials and punishments for the same offence/acts, each stream is clearly influenced by its own tributaries, surfacing through the margin of appreciation and principle of subsidiarity commensurate with sovereignty of states. Perhaps a harmonised interpretive approach will be unnecessary provided that ECtHR and CJEU jurisprudence will continue to augment the scope and application of the principle in a manner consistent with diverse national legal systems.
The margin of appreciation and principle of subsidiarity acknowledges states autonomy to adopt and configure national substantive and procedural criminal law however, the concern to secure appropriate punishment for proscribed conduct militates against dividing the imposition of the same type of sanctions between different state agencies in dual proceedings.
Conclusion
The interpretation and application of the ne bis in idem principle in a European context involves issues of the utmost complexity. Case-law emanating from both European courts is neither consistent nor clear, which is compounded by diverse legal traditions across European states wherein the principle is realised through the lens of national perspectives. Consequently, there are inherent difficulties associated with interpretative analyses of the respective ECHR, CFR and CISA provisions governing the principle.
CJEU judicial interpretations based on idem factum assessments, as opposed to ECtHR idem crimen assessments, provides enhanced protection for accused persons. Such assessments are commensurate with dual (bis) criminal and administrative proceedings (criminal in nature) regarding proscribed conduct (as opposed to legal classifications of offences). Assessments based on legal characteristics of offences could potentially expose accused persons to multiple trials and punishments for the same offence that would be detrimental to individual fundamental rights and free movement of persons within the EU. It is conceivable that judicial formulations by the ECtHR in A and B v Norway based on narrow idem crimen assessment of Article 4(1) Protocol No. 7 while detrimental to accused persons is perhaps founded on state obligations to protect and vindicate the individual rights of persons through effective prosecution of criminal offences (human rights violations). Broader idem factum CJEU judicial formulations concerning Article 50 CFR in Menci, Garlsson Real Estate and Di Puma and Zecca concomitant with Bpost and Nordzucker regarding competition proceedings, and Spasic (among others) regarding Article 54 CISA, ostensibly facilitates unhindered free movement of persons between European states.
Disparities and uncertainties pertaining to the application of the European ne bis in idem principle will undoubtedly be revealed in future judgments owing to diverse national legal traditions. The ECtHR and CJEU will undoubtedly be called upon to provide more nuanced judicial assessments with stipulations for national legal systems underpinning the efficacy of the principle for accused persons. The apparent symbiotic relationship between the two European courts presumably will influence the evolution and application of the principle with common purposes thus providing an effective procedural defence against a states’ ius puniendi. The interrelationship between the jurisprudence of two European courts will be a litmus test for the level of protection afforded to substantive and procedural rights and the principle of legal certainty in criminal justice issues before national criminal and administrative authorities, especially in states with double-track enforcement measures based on the same proscribed conduct. The main issue causing tensions between the different streams of case law is the question of the combination of different types of proceedings (administrative and criminal) with reciprocal influence between the ECHR and CJEU.
Diverse terminologies in respective provisions of Council of Europe and EU instruments might engender confusion and conflict owing to the diversity of substantive criminal laws and procedures across states with diverse legal traditions. Therefore, a harmonised approach to the interpretation of the principle is fundamental to ensuring the efficient regulation of substantive and procedural justice within and between European states. It is conceivable that consistency of approach to the interpretation and application of the principle will remain practical and effective in safeguarding the individual rights of accused persons in accordance with the ne bis in idem principle.
Footnotes
Acknowledgement
The author is very grateful to the anonymous reviewers for their careful reading of the manuscript and their many insightful comments and suggestions that improved the quality of this article.
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
