CASE OF PAPADOPOULOS v. GREECE

THIRD SECTION

CASE OF PAPADOPOULOS v. GREECE

(Application no. 10787/15)

JUDGMENT
 

STRASBOURG

10 December 2024

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

In the case of Papadopoulos 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 application (no. 10787/15) 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 20 February 2015 by a Greek national, Mr Kosmas Papadopoulos (“the applicant”), who was born in 1941, lives in Komotini and was represented by Mr K. Remelis, a lawyer practising in Athens;

the decision to give notice of the complaints concerning Article 6 § 2 of the Convention, Article 1 of Protocol No. 1 and Article 4 of Protocol No. 7 to the Convention to the Greek Government (“the Government”), represented by their Agent, Ms N. Marioli, and their Agent’s delegate, Ms A. Magrippi, President and Legal Representative A at the State Legal Council respectively, and to declare inadmissible the remainder of the application;

the parties’ observations;

the decision of 10 January 2023 to reject the unilateral declaration 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 application concerns the applicant’s allegation that he 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 respected in subsequent administrative proceedings. The applicant further claimed that the fine imposed was disproportionate and therefore amounted to a violation of his property rights.

2.  On 16 September 2002 the competent Customs Office (Τελωνείο Κομοτηνής) declared the applicant, together with one other person, K., jointly and severally liable of smuggling under the Greek Customs Code. The offence was related to the purchase and circulation in Greece of a vehicle which had been imported without paying customs duties and taxes on the grounds of a false relocation declaration made by its initial owner, K.

3.  The applicant was given an administrative fine for smuggling (πολλαπλό τέλος λαθρεμπορίας) equivalent to 300,086.63 euros (EUR), together with a bill for unpaid taxes equivalent to EUR 100,362.21, as well as other charges. The applicant contested that decision before the domestic administrative courts.

4.  While his case before the first-instance administrative court was pending, the applicant was acquitted of the charge of smuggling by judgment no. 896/2004 of the Thrace Criminal Court of Appeal. This judgment was delivered on 7 July 2004 and it follows from the case file that no appeal was lodged against it, thus it became irrevocable. The applicant referred to his criminal acquittal as part of his submissions before the first instance court.

5.  By judgment no. 218/2006, delivered on 2 October 2006, the Komotini Administrative Court of First Instance granted his application taking into consideration, among others, the criminal acquittal invoked.

6.  Following an appeal lodged by the Customs Office, the Komotini Administrative Court of Appeal reconsidered the case. By judgment no. 375/2011 delivered on 5 December 2011, the latter granted the appeal, re-examined the application on the merits and dismissed it. It held more specifically that, despite the criminal court’s conclusions on the lack of intent from the applicant’s side, it transpired from several pieces of evidence that the applicant had acted with intent.

7.  On 1 March 2012 the applicant lodged an appeal on points of law before the Supreme Administrative Court. The latter was rejected initially as manifestly inadmissible by decision no. 3494/2012 in accordance with the provision of Article 34A of Presidential Decree no. 18/1989.

8.  Upon the applicant’s request, the case was referred to be heard by a section. By decision no. 1780/2014 delivered on 14 May 2014, the second section of the Supreme Administrative Court finally rejected the appeal on points of law as inadmissible for failure to comply with the special admissibility conditions provided in section 12 of Law no. 3900/2010 for an appeal on points of law before the Supreme Administrative Court to be admissible.

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.  The applicant complained under Article 4 of Protocol No. 7 that he 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 the applicant had been acquitted in the criminal proceedings.

11.  The Government argued that the applicant had not exhausted domestic remedies in relation to his ne bis in idem complaint. More specifically, they argued that the applicant had failed to invoke his rights under Article 4 of Protocol No. 7 before the domestic courts. They further argued that the applicant had failed to prove before the domestic courts that his criminal acquittal had become irrevocable.

12.  The applicant disagreed, proposing that even though he had not explicitly referred to Article 4 of Protocol No. 7 to the Convention, he had in substance raised his complaint in the proceedings before the domestic courts invoking the relevant domestic law provisions. He further argued that he had already invoked and duly submitted the acquittal judgment before the first‑instance court and that, in any case, it was not for him to prove that the latter had become irrevocable.

13.  The Court reiterates that, according to its case-law, it is not necessary for a Convention right to be explicitly raised as such in domestic proceedings, provided that it is raised “at least in substance” (see Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004-III). In view of the foregoing and having regard to the applicant’s submissions before the domestic courts, the Court is satisfied that through the arguments that he raised before the Supreme Administrative Court the applicant did complain, albeit implicitly, that his right not to be punished twice had been breached.

14.  As regards the Government’s second objection, the Court notes that in so far as the applicant 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 the acquittal judgment invoked could have in the context of the pending administrative proceedings in the light of the ne bis in idem principle (Kapetanios and Others, cited above, § 66).

15.  In view of the foregoing, the Court dismisses the Government’s objections of non-exhaustion of domestic remedies. It further notes that the applicants’ complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

16.  Turning to the merits, the Court notes that 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 has already 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). They further concerned the same offence (ibid., §§ 65-73).

19.  The Court observes that the applicant was acquitted in criminal proceedings by the Thrace Criminal Court of Appeal in judgment no. 896/2004, against which no appeal was lodged. It is also clear from the case file that the applicant relied on and submitted the abovementioned 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 acquittal could have in the context of the pending administrative proceedings in the light of the ne bis in idem principle. However, both the Court of Appeal and the Supreme Administrative Court disregarded the applicant’s final acquittal in the criminal proceedings (see paragraphs 6 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 applicant further complained under Article 6 § 2 of the Convention that the presumption of innocence stemming from his criminal acquittal had not been observed in the subsequent administrative proceedings.

22.  The Government argued that the applicant had failed to invoke his criminal acquittal before the domestic courts in accordance with the applicable procedural requirements. For the same reasons as above (see paragraph 14), the Court dismisses the Government’s objection. It further notes that the applicant’s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

23.  Turning to the merits, the Court reiterates that in Kapetanios and Others (cited above, §§ 86-88) it found a violation of Article 6 § 2 of the Convention in respect of issues similar to those raised in the present case.

24.  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 applicant liable for the same offence for which he had previously been acquitted by the criminal courts. Therefore, the Court does not discern any reason in the present case to depart from its conclusions in Kapetanios and Others (cited above, § 88).

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

26.  The applicant complained under Article 1 of Protocol No. 1 to the Convention about the allegedly disproportional amount of the fine imposed on him.

27.  The Government invited the Court to reject the complaint on the grounds of non-exhaustion of domestic remedies, given the applicant’s failure to raise such a complaint before the domestic courts.

28.  The Court observes that the applicant did not advance any arguments relevant to the proportionality of the fine imposed in his appeal on points of law before the Supreme Administrative Court.

29.  In view of the foregoing, the Court considers that the Government’s objection as to non-exhaustion of domestic remedies must be upheld and the applicant’s complaint under Article 1 of Protocol No. 1 to the Convention must be rejected under Article 35 §§ 1 and 4 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

30.  The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

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