CASE OF MATHIANTONIS v. GREECE

THIRD SECTION

CASE OF MATHIANTONIS v. GREECE

(Applications nos. 56795/15 and 56803/15)

JUDGMENT
 

STRASBOURG

10 December 2024

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

In the case of Mathiantonis v. Greece,

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

 Lətif Hüseynov, President,
 Ioannis Ktistakis,
 Darian Pavli, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the applications (nos. 56795/15, 56803/15) 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”) on 9 November 2015 by two Greek nationals, Mr Vasilios Mathiantonis and Mr Ioannis Mathiantonis, who were born in 1972 and 1946 respectively, live in Thessaloniki and were represented by Mr S. Konstantopoulos, a lawyer practising in Thessaloniki;

the decision to give notice of the applications to the Greek Government (“the Government”), represented by their Agent, Ms N. Marioli, President at the State Legal Council, and their Agent’s delegates, Mr K. Georgiadis and Ms A. Magrippi, Legal Counsellor and Legal Representative A at the State Legal Council respectively;

the parties’ observations;

the decision of 10 January 2023 to reject the unilateral declarations submitted by the Government;

Having deliberated in private on 19 November 2024,

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

SUBJECT MATTER OF THE CASE

1.  The applications concern the applicants’ allegations that they had been tried and convicted twice for the same offence and that the presumption of innocence stemming from a criminal acquittal in respect of smuggling had not been observed in subsequent administrative proceedings.

2.  The two applicants, a father and son, were general partners with a 50% share each in Mathiantonis and Son G.P., a general partnership which ran a petrol station.

3.  On 1 March 2006 the competent Customs Office (Στ’ Τελωνείο Θεσσαλονίκης) declared the applicants jointly and severally liable of fuel smuggling under the Greek Customs Code.

4.  The applicants were given an administrative fine for smuggling (πολλαπλό τέλος λαθρεμπορίας), equivalent to 2,773,817.52 euros (EUR), and a bill for unpaid customs duties and taxes, equivalent to EUR 924,605.84, as well as surcharges. They contested the above decision before the domestic administrative courts in joint proceedings.

5.  While their case before the first-instance administrative court was pending, the applicants were acquitted of fuel smuggling by irrevocable judgment no. 5970/2007 of the Thessaloniki Criminal Court for misdemeanours. That judgment was delivered on 23 March 2007, and it follows from the case file that no appeal was lodged against it.

6.  The applicants referred to their criminal acquittal as part of their submissions before the first-instance administrative court. By judgment no. 2316/2008, delivered on 15 September 2008, the Thessaloniki Administrative Court of First Instance dismissed their application, holding that the administrative fines imposed were not of a criminal nature and therefore the administrative courts were not bound by the acquittal judgments delivered by the criminal courts.

7.  The applicants lodged an appeal against that decision, which was dismissed by the Thessaloniki Administrative Court of Appeal in judgment no. 902/2009, delivered on 26 May 2009. The appeal court upheld the first-instance court’s conclusion that administrative courts were not bound by acquittal judgments delivered by the criminal courts, further noting, in obiter dicta, that the applicants had not shown that their acquittal had become irrevocable.

8.  The Supreme Administrative Court dismissed a subsequent appeal on points of law lodged by the applicants by its judgment no. 2403/2015 delivered on 16 June 2015. As regards the applicants’ acquittal of criminal charges, it held that, notwithstanding the non-criminal nature of the fines imposed, the applicants had in any event failed to establish that the invoked acquittal judgment had become irrevocable. In its view, the administrative courts were not obliged to investigate of their own motion whether criminal judgments had become irrevocable, if this was not clear from the documents in the file.

9.  A description of the relevant domestic law and practice can be found in Kapetanios and Others v. Greece (nos. 3453/12 and 2 others, §§ 36-47, 30 April 2015).

THE COURT’S ASSESSMENT

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

11.  The Government argued that the applicants had not exhausted domestic remedies since they had failed to raise the complaints made before the Court with the competent domestic authorities in accordance with the applicable procedural requirements, namely the requirement to prove that the criminal judgment in their favour had become irrevocable.

12.  The Court notes that in so far as the applicants relied on and submitted the acquittal judgment in question, it was for the administrative courts examining the case to consider of their own motion the effect that this could have in the context of the administrative proceedings in the light of the ne bis in idem principle (see Kapetanios and Others, cited above, § 66). The Court therefore dismisses the Government’s preliminary objection.

13.  The applicants complained under Article 4 of Protocol No. 7 that they had been tried and convicted twice for the same offence on the grounds that the administrative courts had upheld the administrative fine for smuggling which had been imposed on the basis of the same facts for which they had been acquitted in the criminal proceedings.

14.  The Government contested that argument.

15.  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.

16.  The general principles concerning the ne bis in idem principle have been summarised 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).

17.  As regards administrative fines for smuggling imposed on the basis of facts which have previously given rise to an acquittal in criminal proceedings, the Court found a violation of Article 4 of Protocol No. 7 in almost identical circumstances in Kapetanios and Others (cited above).

18.  Turning to the present case, the Court notes that both sets of proceedings, namely the administrative and the criminal, were of a criminal nature in view of the severity of the customs fine imposed and its deterrent effect (ibid., §§ 52-57). Furthermore, they concerned the same offence (ibid., §§ 65-73).

19.  The Court observes that the applicants were acquitted in criminal proceedings by the Thessaloniki Criminal Court for misdemeanours in judgment no. 5970/2007, against which no appeal was lodged. It is also clear from the case file that the applicants relied on, and submitted, the above‑mentioned acquittal judgment, which had already become res judicata, at both first instance and appeal level as well as before the Supreme Administrative Court. In Kapetanios and Others (ibid., § 66), the Court held that under such circumstances it was for the administrative courts examining the case to consider, of their own motion, the effect that the invoked acquittal judgment could have in the context of the pending administrative proceedings in the light of the ne bis in idem principle. However, the domestic courts at all levels refused to take into account the applicants’ final acquittal in the criminal proceedings (see paragraphs 6, 7 and 8 above). Accordingly, the Court does not discern any reason to depart from the conclusion made in Kapetanios and Others in the present case.

20.  There has accordingly been a violation of Article 4 of Protocol No. 7 to the Convention.

21.  The applicants further complained under Article 6 § 2 of the Convention that the presumption of innocence stemming from their acquittal in the criminal proceedings had not been observed in the subsequent administrative proceedings.

22.  The Government contested that argument.

23.  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.

24.  In Kapetanios and Others (cited above, §§ 86-88) the Court found a violation in respect of issues similar to those raised in the present case.

25.  Turning to the present case, in view of the constituent elements of the offences concerned, the similar nature of the two sets of proceedings in issue and the fact that they took place independently of each other, the Court concludes that the administrative courts held the applicants liable for the same offences of which they had previously been acquitted by the criminal courts. Therefore, the Court does not discern any reason to depart from its conclusions in Kapetanios and Others (cited above, § 88).

26.  It follows that there has been a breach of Article 6 § 2 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

27.  The applicants claimed 100,000 euros (EUR) each in respect of non‑pecuniary damage.

28.  The Government contested those claims, considering them to be excessive and unjustified.

29.  In view of the above considerations and having regard to the documents in its possession and to its case‑law (see, in particular, Kapetanios and Others, cited above, §§ 111-13, and Sismanidis and Sitaridis v. Greece, nos. 66602/09 and 71879/12, §§ 70-72, 9 June 2016), the Court considers it reasonable to award to each applicant EUR 9,800 in respect of non-pecuniary damage plus any tax that may be chargeable, and dismisses the remainder of the claims under this head.

30.  The applicants made no claim in respect of costs and expenses and, therefore, the Court makes no award in this regard.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay each applicant, within three months, EUR 9,800 (nine thousand eight hundred euros), plus any tax that may be chargeable, 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 10 December 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Olga Chernishova Lətif Hüseynov
 Deputy Registrar President