Information Note on the Court’s case-law 184
April 2015
Kapetanios and Others v. Greece - 3453/12, 42941/12 and 9028/13
Judgment 30.4.2015 [Section I]
Article 6
Article 6-2
Presumption of innocence
Administrative fine for smuggling imposed on the basis of facts which had previously given rise to acquittal in criminal proceedings: violation
Article 4 of Protocol No. 7
Right not to be tried or punished twice
Administrative fine for smuggling imposed on the basis of facts which had previously given rise to acquittal in criminal proceedings: violation
Facts – Criminal proceedings were brought against the three applicants on contraband charges. They were acquitted by judgments which became final in 1992, 1998 and 2000. In the meantime, they had been ordered to pay administrative fines. These amounted to about 130, 000 euros in the case of one applicant, and to several hundred thousand euros in the case of the other applicants. The administrative proceedings were concluded by judgments of the Supreme Administrative Court in 2011 and 2012. In dismissing the applicants’ appeals on points of law, the Supreme Administrative Court noted that the administrative authorities had not been bound by any acquittal judgments delivered by the criminal courts since under the domestic law only final condemnatory judgments by the criminal courts had res judicata value for the administrative courts.
The criminal and administrative proceedings against the first applicant had concerned the import, in 1985 and 1986, of twelve electronic appliances, a hunting rifle, a winch and a video camera without the relevant customs duties having been paid. The two sets of proceedings against the second applicant had concerned the sale, between 1993 and 1995, of petrol and diesel oil without purchase certificates. The two sets of proceedings against the third applicant had concerned the importation into Greece in 1992 of two luxury vehicles without payment of customs taxes and duties and their use without prior clearance from the customs authorities.
Law – Article 4 of Protocol No. 7: The administrative penalties in question were criminal in nature, given the severity of the fines imposed and their deterrent effect. The charges brought against the applicants before the administrative and criminal courts referred specifically to the same conduct occurring over the same periods. From the moment that the acquittal judgments in the first set of criminal proceedings acquired became res judicata, the applicants ought to have been considered as having “already been finally acquitted” within the meaning of Article 4 of Protocol No. 7. Given that the applicants had relied on and submitted the acquittal judgments, which were already res judicata, both to the courts examining the proceedings on merits and at final instance to the Supreme Administrative Court, it was for the administrative court examining the case to consider, of its own motion, the effect the acquittal judgments could have in the context of the pending administrative proceedings as otherwise the failure to take into account the existence of the first “criminal proceedings” would be tantamount to intentionally tolerating a situation within the national legal system which could be in breach of the ne bis in idem principle.
Article 4 of Protocol No. 7 did not in principle prohibit the imposition of a term of imprisonment and a fine for the same set of facts, provided that the ne bis in idem principle was respected. Thus, in the context of the prevention of contraband, this principle would not have been breached had the two forms of penalty, a custodial sentence and a financial penalty, been imposed as part of a single set of judicial proceedings. Furthermore, the fact that, in the case of two of the applicants, the criminal proceedings had not yet ended when the administrative proceedings were brought was not in itself problematic with regard to the ne bis in idem principle. That principle would have been upheld had the criminal court suspended the trial after the opening of the administrative proceedings and subsequently ended the criminal prosecution once the Supreme Administrative Court had confirmed, at final instance, the fine in question.
In its Åklagaren v. Hans Åkerberg Fransson* judgment, the Court of Justice of the European Union (CJEU) had specified that, under the ne bis in idem principle, a State could impose a double penalty (tax and criminal) for the same acts only where the first penalty was not criminal in nature. In assessing the criminal nature of a tax penalty, the CJEU had relied on the three criteria used by the Court in the Engel and Others judgment. In consequence, the Court noted a convergence in the two courts’ case-law with regard to the assessment of the criminal nature of tax proceedings and, a fortiori, the implementation of the ne bis in idem principle in tax and criminal matters.
In the light of the foregoing, the administrative proceedings in question concerned a second “offence” originating in identical acts to those which had been the subject-matter of the first, and final, acquittals.
Conclusion: violation (unanimously).
Article 6 § 2 of the Convention: The present case was clearly distinguishable from the cases already examined by the Court in which an administrative body with disciplinary powers had imposed a penalty as a result of accusations against a State employee following his or her acquittal in criminal proceedings. In those cases, the disciplinary proceedings enjoyed a certain autonomy vis-à-vis the criminal proceedings, particularly in terms of the conditions for their implementation and their non-punitive purpose. On account of that autonomy, the imposition of an administrative penalty on the employee in question had not been considered, in itself, to be in breach of the principle of the presumption of innocence, in so far as the administrative body’s decision did not contain a statement imputing criminal liability to the applicant.
In the present case, after assessing the material in the case files in a different manner to the criminal courts, the administrative courts had held that the applicants had committed the same offences of contraband of which they had previously been acquitted by the criminal courts. These conclusions had subsequently been upheld, at final instance, by the Supreme Administrative Court. Given the similar nature of the two sets of proceedings in issue, the acts in dispute and the constituent elements of the offences concerned, this finding by the administrative courts had breached the applicants’ right to be presumed innocent which had already been established by their acquittals by the criminal courts.
Conclusion: violation (unanimously).
The Court also found, in respect of one of the applicants, a violation of Article 6 § 1 and Article 13 of the Convention on account of the excessive length of the proceedings and the lack of an effective remedy in that respect.
(See also Engel and Others v. the Netherlands, 5100/71 et al., 8 June 1976; Moullet v. France (dec.), 27521/04, 13 September 2007, Information Note 100; Vagenas v. Greece (dec.), 53372/07, 23 August 2011; Vanjak v. Croatia, 29889/04, 14 January 2010; and Hrdalo v. Croatia, 23272/07, 27 September 2011.)
* Åklagaren v. Hans Åkerberg Fransson, C-617/10, judgment of the CJEU (Grand Chamber) of 26 February 2013.
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This summary by the Registry does not bind the Court.
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