PETRAKIS v. GREECE

THIRD SECTION

DECISION

Applications nos. 57298/17 and 59318/18
Spyridon PETRAKIS
against Greece

The European Court of Human Rights (Third Section), sitting on 26 March 2024 as a Committee composed of:

 Yonko Grozev, President,
 Ioannis Ktistakis,
 Andreas Zünd, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the applications 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 the various dates indicated in the appended table by a Greek national, Mr Spyridon Petrakis (“the applicant”), who was born in 1959, lives in Pireaus and was represented by Mr D. Dimos, a lawyer practising in Ioannina;

the decision to give notice of the applications to the Greek Government (“the Government”) represented by their Agent, Ms N. Marioli, President of the State Legal Council, and their Agent’s delegates, Ms O. Patsopoulou and Ms Z. Chatzipavlou, Legal Counsellors at the State Legal Council;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1.  The applications concern the alleged violation of the ne bis in idem principle on account of the imposition of smuggling fines on the applicant and the dismissal of his appeals on points of law by the Supreme Administrative Court, which held that the criminal proceedings had been terminated on the ground that the statutory limitation period had expired and that therefore it could not be said that the applicant had been punished twice.

2.  On 24 and 26 March 1997 large quantities of undeclared cigarettes were found in various trucks. Altogether, six administrative acts were issued by the customs authorities, corresponding to the load of the trucks. They imposed fine on several persons involved, including the applicant as a customs clearance agent, for the infringement of customs legislation on smuggling in accordance with Article 89 § 2 of Law no. 1165/1918 (Customs Code), based on the amount of the unpaid customs duties and other taxes.

3.  By act no. 96/98 of 5 January 2000, part of an administrative fine was imposed on the applicant. The applicant lodged a recourse against it which was dismissed by judgment no. 264/2003 of the Korinthos Administrative Court of First Instance. The applicant’s appeal was subsequently partially accepted by judgment no. 359/2010 of the Tripoli Administrative Court of Appeal which reduced the fine imposed on the applicant to 332,294.50 euros (EUR).

4.  By act no. 97/98 of 5 January 2000, part of an administrative fine was imposed on the applicant. The applicant lodged a recourse against it which was dismissed by judgment no. 265/2003 of the Korinthos Administrative Court of First Instance. The applicant’s appeal was subsequently partially accepted by judgment no. 326/2010 of the Tripoli Administrative Court of Appeal which reduced the fine imposed on the applicant to EUR 328,608.89.

5.  By act no. 98/98 of 5 January 2000, part of an administrative fine was imposed on the applicant. The applicant lodged a recourse against it which was dismissed by judgment no. 266/2003 of the Korinthos Administrative Court of First Instance. The applicant’s appeal was subsequently partially accepted by judgment no. 360/2010 of the Tripoli Administrative Court of Appeal which reduced the fine imposed on the applicant to EUR 332,294.50.

6.  By act no. 95/98 of 5 January 2000, part of an administrative fine was imposed on the applicant. The applicant lodged a recourse against it which was dismissed by judgment no. 263/2003 of the Korinthos Administrative Court of First Instance. The applicant’s appeal was subsequently partially accepted by judgment no. 324/2010 of the Tripoli Administrative Court of Appeal which reduced the fine imposed on the applicant to EUR 328,608.89.

7.  By act no. 1/99 of 10 January 2000, part of an administrative fine was imposed on the applicant. The applicant lodged a recourse against it which was dismissed by judgment no. 267/2003 of the Korinthos Administrative Court of First Instance. The applicant’s appeal was subsequently partially accepted by judgment no. 325/2010 of the Tripoli Administrative Court of Appeal which reduced the fine imposed on the applicant to EUR 410,591.60.

8.  By act no. 3/99 of 10 January 2000, part of an administrative fine was imposed on the applicant. The applicant lodged a recourse against it which was dismissed by judgment no. 269/2003 of the Korinthos Administrative Court of First Instance. The applicant’s appeal was subsequently partially accepted by judgment no. 287/2010 of the Tripoli Administrative Court of Appeal which reduced the fine imposed on the applicant to EUR 416,587.11.

9.  In March 1997 criminal proceedings were initiated against the applicant and the other persons involved in, among others, the offence of aggravated smuggling of a significant amount. Following the main investigation, the case was transmitted to the Indictments Division of the Corfu Criminal Court of Appeal, which, by decision no. 86/2007 issued on 7 December 2007, terminated the proceedings on the ground that the prosecution of the offence had become time-barred as the five-year limitation period provided for in Article 111 § 3 of the Criminal Code, which had started on the day of the commitment of the offence, had expired. No remedy had been exercised against decision no. 86/2007 which became final.

10.  As judgments nos. 359/2010, 326/2010, 360/2010, 324/2010, 325/2010 and 287/2010 of the Tripoli Administrative Court of Appeal dismissed the applicant’s ground of appeal relying on a breach of Article 4 of Protocol No. 7 to the Convention, by ruling that the administrative court was not bound by the final decision no. 86/2007, the applicant lodged appeals on points of law relying, among others, on a violation of the same provision. His appeals on points of law were respectively dismissed by judgments nos. 169/2017, 168/2017, 167/2017, 1102/2018, 1103/2018 and 1104/2018 of the Supreme Administrative Court.

11.  In particular, the Supreme Administrative Court held in those judgments that a final decision for the purposes of Article 4 of Protocol No. 7 to the Convention shall be based on sufficient determination as to the merits of the case. It thus dismissed the ground of appeal on points of law relating to a violation of the ne bis in idem principle by ruling that the criminal proceedings had not been terminated by a decision following an assessment of whether the offence had been committed or not but on the ground that the statutory limitation period had expired, which could not be interpreted as constituting an acquittal, contrary to what the applicant argued.

12.  The applicant complained under Article 4 of Protocol No. 7 to the Convention that decision no. 86/2007 had determined the merits of the case and should have precluded the continuation of the administrative proceedings.

THE COURT’S ASSESSMENT

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

14.  The Court reiterates the principles set out in its case-law concerning the duplication of criminal proceedings (see Mihalache v. Romania [GC], no. 54012/10, §§ 47‑49, 8 July 2019).

15.  The Court further reiterates that the aim of Article 4 of Protocol No. 7 is to prohibit the repetition of criminal proceedings that have been concluded by a final acquittal or conviction (ibid., § 81 and 88, with further references). Consequently, the crucial issue in the present case is whether the decision terminating the criminal proceedings on account of the expiry of the statutory limitation period amounted to a “final acquittal or conviction” within the meaning of paragraph 1 of Article 4 of Protocol No. 7.

16.  In Smoković v. Croatia ((dec.), no. 57849/12, §§ 43-45, 12 November 2019) the Court held that a ruling terminating minor-offence proceedings on the basis of the expiry of the statutory limitation period was neither a “conviction” nor an “acquittal” for the purposes of Article 4 of Protocol No. 7 to the Convention, and therefore did not preclude the continuation of parallel proceedings with a longer statutory limitation period.

17.  Turning to the present case, the Court notes that both sets of proceedings were of a criminal nature (see Kapetanios and Others v. Greece, nos. 3453/12 and 2 others, §§ 52-57, 30 April 2015) and they concerned the same offence (ibid, §§ 65-73).

18.  While the administrative proceedings were pending, the criminal proceedings were terminated by decision no. 86/2007 of the Indictments Division of the Corfu Criminal Court of Appeal issued on 7 December 2007, on the grounds that the statutory limitation period in respect of the offence of smuggling with which the applicant had been charged had expired (see paragraph 9 above). Thus, those proceedings were terminated without assessing any elements of the applicant’s guilt or innocence. The Indictments Division by its decision no. 86/2007 held that the statutory limitation period had expired and since no ordinary remedy had been exercised against it, it became final (see Mihalache, cited above, § 115).

19.  It is clear that the decision adopted in criminal proceedings did not amount to a conviction, since there was no court ruling in those proceedings to the effect that the applicant was guilty of the charges against him and no penalty was imposed on him (see Smoković, cited above, § 43). As to the question whether the decision constituted an acquittal, the decision was not based on any investigation into the charges brought against the applicant or on any findings of fact relevant for determining his guilt or innocence. The decision terminating the criminal proceedings against the applicant did not take cognisance of the facts, circumstances or evidence relating to the alleged acts, evaluate them or rule to acquit him. It did not amount to an assessment of whether the applicant bore responsibility for the impugned offence, which would normally precede an acquittal. The court held that the statutory limitation period had expired and thus closed the case for procedural reasons (see Smoković, cited above, § 44).

20.  The Court sees no reason to depart from the position of the Supreme Administrative Court (see paragraphs 10-11 above). The latter found in judgments nos. 167-169/2017 and 1102-1104/2018 that a final decision for the purposes of Article 4 of Protocol No. 7 to the Convention must be based on sufficient determination as to the merits of the case and dismissed the relevant ground of appeal on points of law by ruling that criminal proceedings had not been terminated by a decision following an assessment of whether the offence had been committed or not but on the ground that the statutory limitation period had expired, which could not be interpreted as constituting an acquittal.

21.  Against the background above, the Court concludes that although the decision in the criminal proceedings was final, it did not preclude the continuation of the administrative proceedings.

22.  It follows that Article 4 of Protocol No. 7 to the Convention is not applicable in the present case and that the applications are incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a), and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 18 April 2024.

 Olga Chernishova Yonko Grozev
 Deputy Registrar President

Appendix

List of cases:

No.

Application no.

Case name

Lodged on

Applicant
Year of Birth
Place of Residence
Nationality

1.

57298/17

Petrakis v. Greece

28/07/2017

Spyridon PETRAKIS
1959
Pireaus
Greek

2.

59318/18

Petrakis v. Greece

03/12/2018

Spyridon PETRAKIS
1959
Pireaus
Greek