Communicated on 25 April 2016
FOURTH SECTION
Application no. 41788/11
Raimundas ŠIMKUS
against Lithuania
lodged on 7 June 2011
STATEMENT OF FACTS
The applicant, Mr Raimundas Šimkus, is a Lithuanian national, who was born in 1975 and lives in Tauragė. He is represented before the Court by Mr A. Venckus, a lawyer practising in Kaunas.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In July 2006 a criminal investigation was opened against several individuals, including the applicant. Among the allegations were that they had threatened to murder or seriously injure law enforcement officers or had otherwise hindered them in their official duties by verbally abusing them.
On 5 December 2006 the district prosecutor discontinued the criminal investigation against the applicant and noted that he could be liable for the administrative offence of minor hooliganism under Article 174 of the Code of Administrative Offences. However, three days later a senior prosecutor annulled that decision and reopened the criminal investigation.
On 18 December 2006 the Jurbarkas District Court found that the applicant had committed the administrative offence of minor hooliganism and gave him a warning. The decision was not appealed against and became final.
On 23 October 2009 the district prosecutor discontinued the criminal investigation against the applicant. The prosecutor noted, inter alia, that continuing the criminal proceedings against him would be in breach of the non bis in idem principle, as he had already been punished for the same offence in administrative proceedings. However, on 11 June 2010 the Prosecutor General’s Office annulled the district prosecutor’s decision and reopened the investigation, noting that the administrative penalty given to the applicant “did not automatically preclude” the criminal proceedings against him.
The applicant appealed against that decision to a senior prosecutor at the Prosecutor General’s Office but on 30 June 2010 his appeal was dismissed. The senior prosecutor held that, in line with the case-law of the domestic courts, previous administrative proceedings did not preclude the institution of subsequent criminal proceedings concerning the same offence; however, in order to comply with the non bis in idem principle, if the person was found guilty in the criminal proceedings, the previous administrative penalty had to be withdrawn or, if withdrawal was impossible, the penalty had to be taken into account when deciding the criminal sentence. Accordingly, the prosecutor considered that the administrative penalty given to the applicant did not preclude the continuation of the criminal proceedings against him.
On 2 November 2010 the Jurbarkas District Court upheld the applicant’s appeal and quashed the prosecutor’s decision of 30 June 2010. The court held that criminal proceedings against the applicant could be continued only after the administrative penalty had been withdrawn, but since that had not been done, any further proceedings would be in breach of the non bis in idem principle. However, on 8 December 2010 the Kaunas Regional Court quashed that decision and reiterated the reasoning of the prosecutor’s decision of 30 June 2010.
On 6 September 2011 the Jurbarkas District Court terminated the criminal proceedings against the applicant as time-barred. That decision was not appealed against and became final.
COMPLAINT
The applicant complains under Article 4 § 1 of Protocol No. 7 to the Convention that he was tried in criminal proceedings for the same offence he had already been punished for in administrative proceedings.
QUESTION TO THE PARTIES
Has the applicant been tried twice for the same offence in the territory of the respondent State, as prohibited by Article 4 § 1 of Protocol No. 7?
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