CASE OF DIAMANTIS AND OTHERS v. GREECE

THIRD SECTION

CASE OF DIAMANTIS AND OTHERS v. GREECE

(Applications nos. 50337/13 and 3 others –see appended list)

JUDGMENT
 

STRASBOURG

21 January 2025

This judgment is final but it may be subject to editorial revision.

In the case of Diamantis and Others v. Greece,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

 Peeter Roosma, President,
 Ioannis Ktistakis,
 Oddný Mjöll Arnardóttir, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the applications against the Hellenic Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the applicants listed in the appended table, (“the applicants”), on the various dates indicated therein;

the decision to give notice of the complaints concerning Article 6 § 2 of the Convention and Article 4 of Protocol No. 7 to the Convention to the Greek Government (“the Government”) represented by their Agent, Mrs N. Marioli and Mr K. Georgiadis, President and Legal Counselor at the State Legal Council, and to declare inadmissible the remainder of the applications indicated as a partial decision in the appended table;

the applicants’ observations;

the decision of 10 January 2023 to reject the unilateral declarations presented by the Government in connection to all applications;

Having deliberated in private on 17 December 2024,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The applications concern alleged violations of Article 6 § 2 of the Convention and of Article 4 of Protocol no. 7 to the Convention, on account of the imposition of administrative fines on the applicants even though they had been acquitted in criminal proceedings pertaining to the same facts.

2.  In application no. 50337/13, the Larissa Customs Office, by decision no. 82/99A’partial/12-7-2001, imposed an administrative fine (πολλαπλούν τέλος) for smuggling inter alia on the applicants, amounting to 255,376,809 drachmas in total.

3.  In connection to application no. 69584/13, the Larissa Customs Office, by decision no. 82/99B’partial/12-7-2001, imposed an administrative fine (πολλαπλούν τέλος) for smuggling inter alia on the applicant, amounting to 255,376,809 drachmas in total.

4.  The applicants challenged the above decision before the competent administrative court. While the administrative proceedings were pending, the applicants were acquitted of the charge of smuggling for the same facts by judgment no. 987/2000 of the Thessaloniki Three-Member Misdemeanour Court.

5.  The applicants’ applications were rejected as unfounded by the Larissa Administrative Court of First Instance, by decisions nos. 731/2002 and 732/2002. The applicants appealed, notably on the basis of their criminal acquittal. They relied in particular on the evidence considered by the criminal court, arguing that it demonstrated that they had not committed the customs offence and that, in any event, they had not committed it willingly. The Larissa Administrative Court of Appeal, by judgments nos. 444/2005 and 446/2005, rejected the appeals. The court held that the applicants had willingly committed the customs offence in question, and that the evidence considered by the criminal court did not demonstrate that the applicants had not have the intention to commit the offence.

6.  The Supreme Administrative Court subsequently dismissed the applicants’ appeals on points of law by judgments nos. 4161/2012 and 4162/2012. As regards the ne bis in idem principle, the court noted inter alia that the administrative procedure relating to the imposition of the smuggling fine was autonomous vis-à-vis criminal proceedings. Therefore, the administrative courts were not bound by the criminal courts’ findings, as this would deprive them of their constitutional obligation to examine the administrative case. Further, as regards the presumption of innocence, the court held that the Court’s Stavropoulos case-law (no. 35522/04, 27 September 2007) could not apply in cases where the offence in question was simultaneously an administrative and a criminal offence. In any event, if this principle implied that the administrative court could not appreciate the case differently than the criminal courts, the administrative court would be unable to fulfil its constitutional duty to examine the administrative case. As regards the cases under examination, the court notably held that the appellate court had rightfully held that it was not bound by the applicants’ criminal acquittal, considered it and provided sufficient reasoning to establish that the applicants had willingly committed the offence.

7.  The Kalamata Customs Office, by decision no. 4/24-7-2000, imposed an administrative fine (πολλαπλούν τέλος) for smuggling inter alia on the applicant, amounting to 710,266,468 drachmas in total.

8.  The applicant challenged the above decision before the competent administrative court. While the administrative proceedings were pending, the applicant was acquitted of the charge of smuggling for the same facts by judgment no. 2909/2003 of the Kalamata Three-Member Misdemeanour Court.

9.  The Kalamata Administrative Court of First Instance, by decision no. 29/2009, granted the appeal and found that the applicant had not committed the customs offence, notably considering his criminal acquittal.

10.  The Tripoli Administrative Court of Appeal, by judgment no. 626/2013, overturned the first-instance ruling and found that the applicant had been aware of the smuggling activity and therefore had committed the customs offence. It further held that the applicant’s criminal acquittal for the same facts was not binding, as the criminal court had relied only on the evidence examined by it.

11.  The Supreme Administrative Court subsequently dismissed the applicant’s appeal on points of law, by judgment no. 837/2018. As regards the ground of cassation where the applicant relied on the Court’s case‑law Kapetanios and Others v. Greece (nos. 3453/12 and 2 others, 30 April 2015), the court noted the following: the appeal court had not explicitly relied on the ne bis in idem principle, which required the criminal acquittal to be final (αμετάκλητη), it had no confirmation that the applicant’s criminal acquittal had become final, including from the applicant. Therefore, the court found that the ground of cassation concerning the ne bis in idem principle was not crucial for the resolution of the dispute before it, dismissing it as inadmissible under Article 53 of Presidential Decree no. 58/1989.

12.  The Volos Customs Office, by decision no. 53/23-7-1998, imposed an administrative fine (πολλαπλούν τέλος) for smuggling inter alia on the applicant amounting to 178,005,080 drachmas in total.

13.  The applicant challenged the above decision before the competent administrative court. While the administrative proceedings were pending, the applicant was acquitted of the charge of smuggling for the same facts by judgment no. 822/2002 of the Volos Three-Member Misdemeanour Court.

14.  The Volos Administrative Court of First Instance, by judgment no. 32/2003, granted the appeal.

15.  The Larissa Administrative Court of Appeal, by judgment no. 380/2005, overturned the first-instance ruling. The court found that the applicant had willingly committed the customs offence in question, noting that his criminal acquittal was not binding as the administrative proceedings were autonomous vis-à-vis the criminal trial.

16.  The Supreme Administrative Court subsequently dismissed the applicant’s appeal on points of law, by judgment no. 4564/2014. The court dismissed the applicant’s arguments regarding the presumption of innocence, noting that the appellate court had considered the applicant’s criminal acquittal and had sufficiently reasoned its conclusions.

17.  A description of the relevant domestic law and practice can be found in Kapetanios and Others (cited above, §§ 36-47).

THE COURT’S ASSESSMENT

18.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

19.  The applicants in applications nos. 50337/13, 69584/13 and 50264/18 complained under Article 4 of Protocol No. 7 that they had been tried and convicted twice for the same offence, as the administrative courts had upheld the impugned administrative fines for smuggling even though they had been acquitted in criminal proceedings pertaining to the same facts.

20.  The Court notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

21.  The general principles concerning the ne bis in idem principle have been summarized in Sergey Zolotukhin v. Russia ([GC], no. 14939/03, §§ 78‑84, ECHR 2009) and A and B v. Norway ([GC], nos. 24130/11 and 29758/11, §§ 117-34, 15 November 2016).

22.  As regards administrative fines for smuggling imposed on the basis of facts which had previously given rise to an acquittal in criminal proceedings, the Court has already found a violation of Article 4 of Protocol No. 7 in almost identical circumstances (see Kapetanios and Others, cited above). Turning to the present cases and having examined all the material before it, the Court sees no reason to deviate from this approach. It finds that, in the present case, the impugned administrative and criminal proceedings were of a “criminal nature” and concerned the same offence (ibid, §§ 52‑57 and 65‑73). It further notes that the applicants relied on, and submitted to the administrative courts, the judgments that acquitted them of the criminal charges for smuggling. Nevertheless, the latter upheld the impugned administrative fines for smuggling and failed to take into account the applicants’ final acquittal in the criminal proceedings and to consider the effect that such acquittal could have in the light of the ne bis in idem principle (see paragraphs 6, 11 and 16 above).

23.  There has accordingly been a violation of Article 4 of Protocol No. 7 to the Convention with regard to applications nos. 50337/13, 69584/13 and 50264/18.

24.  The applicants further complained under Article 6 § 2 of the Convention that the presumption of innocence stemming from their criminal acquittal was not respected in the subsequent administrative proceedings.

25.  The Court notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

26.  The Court has already found a violation of Article 6 § 2 in similar circumstances in Kapetanios and Others (cited above, §§ 86-88). Turning to the present cases and having examined all the material before it, the Court sees no reason to deviate from this approach. In view of the constituent elements of the offences concerned, and the similar nature of the impugned administrative and criminal proceedings, the Court concludes that the administrative courts held the applicants liable for the same offences for which they had previously been acquitted by the criminal courts (ibid, § 88).

27.  It follows that there has been a violation of Article 6 § 2 of the Convention in respect of all applicants.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

28.  The applicant in application no. 50264/18 did not submit a claim for just satisfaction. Accordingly, the Court does not award him any just satisfaction.

29.  The applicants in applications nos. 50337/13, 69584/13, and 25281/15 claimed the amounts indicated in the appended table. They made no claims with respect to costs and expenses.

30.  The Government contested the claims submitted as regards non-pecuniary damage, considering them to be excessive and unjustified. They also argued that the pecuniary damage claim in application no. 25281/15 should be dismissed as the applicant had failed to lodge an objection (ανακοπή) under article 217 of Law no. 2717/1999.

31.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged in application no. 25281/15; it therefore rejects this claim (see Sismanidis and Sitaridis v. Greece, nos. 66602/09 and 71879/12, § 72, 9 June 2016). It finds it reasonable to award the applicants in applications nos. 50337/13, 69584/13, and 25281/15 the amounts indicated in the appended table in respect of non‑pecuniary damage plus any tax that may be chargeable, having regard to the documents in its possession and to its case‑law (see, in particular, Kapetanios and Others, cited above, § 111-113, and Sismanidis and Sitaridis, cited above, §§ 70‑72).

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the applicants the amounts indicated in the appended table, plus any tax that may be chargeable, within three months, in respect of non-pecuniary damage;

(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 21 January 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Olga Chernishova Peeter Roosma
 Deputy Registrar President

APPENDIX

List of cases:

[1] The applications followed by an asterisk (*) have inadmissible complaints.