Information Note on the Court’s case-law 263
June 2022
Goulandris and Vardinogianni v. Greece - 1735/13
Judgment 16.6.2022 [Section I]
Article 4 of Protocol No. 7
Right not to be tried or punished twice
Criminal proceedings duplicating administrative fine for unlawful construction, but not the annual fine for its preservation: violation, no violation
Facts – The applicants, who are husband and wife, constructed two stone walls on their property without the requisite building permit. An onsite inspection report declared the constructions unlawful and imposed a fine for their unlawful construction against the first applicant (“the construction fine”) and an annual fine for each year that the wall was kept in place against both applicants (“the preservation fine”). No complaints were raised against the fines.
The on-site inspection report was sent to the public prosecutor’s office and a bill of indictment was issued against the two applicants. They were sentenced to seven months’ imprisonment on account of having jointly and intentionally constructed the walls in breach of the relevant building permit, which was converted to a pecuniary penalty. The applicants appealed unsuccessfully up to the Court of Cassation, arguing inter alia that they had been victims of duplication of proceedings in breach of the ne bis in idem principle.
The applicants’ constructions at issue have subsequently been regularised by a regularisation scheme provided for in domestic law.
Law – Article 4 of Protocol No. 7:
a) Whether the proceedings as regards the administrative fines were criminal in nature
The administrative fines had been imposed on the owners or co-owners together with and independently from the obligation to demolish the unlawful constructions. The construction fine was payable even if the construction had thereafter been demolished or had been legalised and had therefore not been dependent on the restoration of lawfulness and of the status quo ante. It thus could not be intended as pecuniary compensation for the damage caused, but rather as a form of punishment of offenders. It had had a deterrent character as well as a punitive one. The preservation fine, calculated from the date of the construction until the date of any subsequent demolition or legalisation, would still be due: any eventual legalisation would only apply for the future and not ex tunc. The Court could not accept that it had involved only indirect enforcement or that it had been intended solely as pecuniary compensation: through its yearly imposition and its progressive increase every year, it had also been intended to punish those responsible for constructing without the required building permit and to deter others from doing likewise.
The fines had been directed at all citizens in their capacity as owners of unlawful buildings or constructions. Moreover, although urban-planning fines had not been classified as “criminal” under domestic law, they could be potentially severe, did not have an upper limit and they undoubtedly had included an element of punishment, which was sufficient to establish the criminal nature of the proceedings relating to the imposition of the fines at issue.
b) Whether the administrative fines constituted a “final conviction”
The time-limit of thirty days for lodging a complaint had started from the day following the receipt of the report on the unlawful constructions and had ended on 4 December 2004. As the applicants had not contested the fines, the administrative decision imposing them had become “final” for the purposes of the Protocol on 5 December 2004, and not when the fines had been paid.
It followed that the “conviction” by way of the construction fine and the “conviction” by way of the preservation fine had become “final” before the institution of criminal proceedings in July 2006, when the bill of indictment had been issued.
c) Whether the offences were the same in nature (idem)
The facts, which had given rise to the administrative construction fine and to the applicants’ prosecution and criminal conviction, had been the construction of two surrounding stone walls contravening the relevant building permit. The facts of those two offences had to be regarded as substantially the same. The criminal offence had encompassed the elements of the construction fine in their entirety, and conversely, the imposition of the construction fine had not been based on any elements not contained in the criminal offence, for the purposes of the Protocol.
On the other hand, the facts underlying the criminal prosecution and conviction had not been the same or substantially the same as those which had led to the imposition of the preservation fine in administrative proceedings. The preservation fine had been imposed for preserving the unlawful constructions and continuing to infringe the urban-planning legislation, an important factual element of the administrative proceedings which had not formed part of the applicants’ conviction for unlawful construction. The Court therefore considered that the criminal proceedings had not concerned the same offences and the same period of time as regards the imposition of the preservation fine; they had been sufficiently separate to conclude that there had been no violation of Article 4 of Protocol No. 7 in that respect.
The Court continued to examine whether there had been a duplication of proceedings as regards the administrative proceedings relating only to the construction fine and in respect of the first applicant:
d) Whether there was a duplication of proceedings (bis)
Concerning the connection in substance between the construction fine and the criminal proceedings, as well as the different sanctions imposed on the first applicant, the objectives of both penalties had been deterrence and punishment. The urban-planning construction fine imposed in administrative proceedings, however, had been specific for the conduct in question and thus had differed from “the hard core of criminal law”, as it had not had stigmatising features. The two sets of proceedings had therefore pursued complementary purposes in addressing the issue of unlawful construction and failure to comply with the statutory urban-planning requirements.
As regards the foreseeability of the consequences of the applicant’s conduct, he should have been aware that the criminal prosecution and the imposition of a fine had been possible, or even likely, on the facts of the case, as that had formed part of the sanctions imposed under Greek law for failure to comply with urban-planning legislation.
As to the manner of conducting the proceedings, a hearing had taken place in the Criminal Court of First Instance and another one in the Criminal Court of Appeal, at which the prosecutor had made submissions and a witness had been examined. The criminal authorities and both sets of proceedings had followed their own separate course in the Greek legal system and had become final independently of each other. The criminal courts had collected and assessed evidence and criminal penalties had been decided independently of the imposition of the urban-planning fine.
The appellate court had had regard to the imposition of the previous fine not as a reason to lower the criminal penalty, but as an element which had confirmed the applicant’s criminal liability. The Court of Cassation had also held a hearing in the case and had not recognised a binding effect of the administrative fines in relation to criminal proceedings.
As regards the proportionality of the overall punishment inflicted, the judgment of the Criminal Court of First Instance had not made any reference to the fact that the applicant had already been fined. The fact that the appellate court, in fixing the sentence, had taken into account, among other things, the applicants’ financial situation in general, did not mean that the previous administrative fines had been taken into account for that purpose, and it was not sufficient to conclude that there had been a mechanism in criminal proceedings to ensure the proportionality of the overall penalties. Moreover, the decision to suspend the sentence had been a result of the applicants’ not having been criminally convicted with final effect and given a custodial sentence of more than one year.
Assessing the connection in time between the proceedings, the overall length had been almost eight years. The bill of indictment had been issued more than one and a half years after the decision as to the administrative fine in the first set of proceedings had become final. The applicant had been convicted at first instance more than three years and nine months after the administrative fine had become “final” and criminal proceedings had been finally concluded by the Court of Cassation approximately seven years and nine months after the first set had become final. The criminal proceedings had thus not been pending concurrently with the administrative proceedings relating to the construction fine, but had been initiated a substantial amount of time after the administrative “conviction”. This lapse of time could not be attributed to the applicant and it could not be considered that the connection in time between the two sets of proceedings had been sufficient to avoid a duplication of the proceedings.
Notwithstanding their complementary purposes and the foreseeability of the consequences of the applicant’s conduct, the two sets of proceedings had therefore not been sufficiently linked in substance and in time to be considered to have formed part of an integrated scheme of sanctions in respect of unlawful construction in Greek law, as in force at the material time. On the contrary, having been punished twice for the same conduct, the first applicant had suffered disproportionate prejudice resulting from the duplication of proceedings and penalties, which had not formed part of a coherent and proportionate whole in his case.
Conclusion: no violation; violation in respect of the first applicant (unanimously).
Article 41: Claim in respect of pecuniary damage dismissed.
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This summary by the Registry does not bind the Court.
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