CASE OF PAPAKYRIAKOU v. GREECE

THIRD SECTION

CASE OF PAPAKYRIAKOU v. GREECE

(Application no. 32241/14)

JUDGMENT
 

STRASBOURG

10 December 2024

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

In the case of Papakyriakou 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. 32241/14) 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 23 April 2014 by a Greek national, Mr Vasilios Papakyriakou (“the applicant”), who was born in 1951, lives in Piraeus and was represented by Ms D. Anagnostopoulou, a lawyer practising in Athens;

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

the parties’ observations;

the decision of 10 January 2023 to reject the unilateral declaration presented 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 was tried and convicted twice for the same offence and that the presumption of innocence stemming from a criminal acquittal in respect of smuggling was not respected in subsequent administrative proceedings.

2.  On 15 March 2002 the competent Customs Office (ΔΙ.Π.Ε.Α.Κ.) held the applicant together with three other persons jointly and severally liable of smuggling under the Greek Customs Code. The offence was related to the sale and circulation in Greece, under counterfeit plates, of a vehicle which had been imported without paying customs duties and taxes and without prior clearance from the customs authorities.

3.  An administrative fine for smuggling (πολλαπλό τέλος λαθρεμπορίας) equivalent to 120,336.26 euros (EUR) was imposed, together with unpaid taxes equivalent to EUR 60,168.18, as well as surcharges. The applicant contested the above decision before the domestic administrative courts.

4.  While his case before the first-instance administrative court was pending, the applicant was finally acquitted of the charge of smuggling by judgment no. 7000/2002 of the Athens Criminal Court of Appeal. This judgment was delivered on 1 July 2002, and it follows from the file that no appeal was lodged against it, therefore it became irrevocable. The applicant invoked his acquittal judgment and submitted a copy of it in the proceedings that followed before the administrative courts both with his submissions before the first instance court as well as with his appeal.

5.  By its judgment no. 1318/2005, delivered on 31 May 2005, the Piraeus Administrative Court of First Instance rejected his application as inadmissible on procedural grounds. The Piraeus Administrative Court of Appeal examined his appeal on the merits and dismissed it by judgment no. 786/2008 delivered on 30 April 2008. As regards the applicant’s criminal acquittal invoked before it, the Court of Appeal, referring to article 5 § 2 of the Code of Administrative Procedure, held that administrative courts were not bound by irrevocable acquittal judgments delivered by the criminal courts. According to that provision, as it stood at the time, administrative courts were bound solely by irrevocable conviction judgments delivered by the criminal courts and not by irrevocable acquittal judgments.

6.  The Supreme Administrative Court subsequently dismissed his appeal on points of law by its judgment no. 2374/2013 delivered on 12 June 2013. As regards the applicant’s criminal acquittal, it held that the appeal court would in any case not be bound by it as the applicant failed to prove that the invoked judgment had become irrevocable.

7.  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

8.  The applicant complained under Article 4 of Protocol No. 7 for having been tried and convicted twice for the same offence as the administrative courts upheld the said administrative fine for smuggling on the basis of the same facts for which the applicant had been acquitted in criminal proceedings.

9.  The Government did not wish to submit observations on the admissibility and merits of the case.

10.  The Court notes that this 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.

11.  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).

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

13.  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).

14.  The Court observes that the applicant was acquitted in criminal proceedings by judgment no. 7000/2002 of the Athens Criminal Court of Appeal, against which no appeal was lodged. It further follows from the file that the applicant relied on and submitted the 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, both the Court of Appeal and the Supreme Administrative Court refused to take into account the applicant’s final acquittal in the criminal proceedings (see paragraphs 5 and 6 above). Accordingly, the Court does not discern any reason to depart from the conclusion made in Kapetanios and Others in the present case.

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

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

17.  The Government did not submit observations.

18.  The Court notes that this 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.

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

20.  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 the latter 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).

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

22.  The applicant also complained under Article 6 § 1 of the Convention about the fairness of the proceedings in view of the application of article 5 § 2 of the Code of Administrative Procedure.

23.  In the light of Kapetanios and Others (cited above, § 71, §§ 107-108) and having regard to its findings under Article 4 of Protocol No. 7 to the Convention and Article 6 § 2 of the Convention, the Court considers that it has examined the main legal questions raised in the present application and that there is no need to give a separate ruling on this complaint (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

24.  The applicant claimed 177,435.97 euros (EUR) in respect of pecuniary damage submitting, in support of his claim, a payment notice (ατομική ειδοποίηση) issued in his name for this amount. He further claimed EUR 30,000 in respect of non-pecuniary damage.

25.  The Government contested these claims. As regards the amount claimed in respect of pecuniary damage, they argued that the applicant had not proved the existence of a causal link between the alleged violations and the amount of pecuniary damage claimed. In particular, they noted that the claim made by the applicant included amounts other than the customs fine imposed and payable under applicable law, as for example taxes, and therefore a calculation could not be made by the Court. The Government further argued that, in any case of a finding of a violation by the Court, national legislation provides for the reopening of proceedings before the Supreme Administrative Court under art. 69A of presidential decree 18/1989 on the proceedings before the Supreme Administrative Court. As regards the amounts claimed in respect of non-pecuniary damage, the Government considered them to be excessive.

26.  The Court first notes that the applicant only provided the Court with the payment notice, which in itself does not constitute proof of the payment of the indicated amount. In any event, taking note of the Government’s observations, the Court does not discern any causal link between the violations found and the pecuniary damage alleged (see, in particular, Kapetanios and Others, cited above, §§ 111-113, and Sismanidis and Sitaridis v. Greece, nos. 66602/09 and 71879/12, §§ 70-72, 9 June 2016).

27.  Regard being had to the documents in its possession and to its case‑law (ibid.), the Court considers it reasonable to award EUR 9,800 in respect of non-pecuniary damage plus any tax that may be chargeable to the applicant.

28.  The applicant 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 the 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 amount 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