Europe of Human Rights

On 12 June 2012 the Court of Justice of the European Union presented the opinion of Advocate General Cruz Villalon in the case C-617/10 Åklagaren v Hans Åkerberg Fransson. The opinion states that the EU Charter of Fundamental Rights does not prevent a person from being sanctioned in criminal proceedings for facts in respect of which a final penalty has already been imposed in administrative proceedings . The author has softened his statement only by noting that the principle of fair trial requires that account be taken of the prior existence of an administrative penalty for the purposes of mitigating the criminal penalty. The view of Advocate General is controversial since the European Court of Human Rights (ECHR), which the Advocate General himself acknowledges, recognizes the ne bis in idem principle (“not twice in the same”) and extends it to the prohibition of imposing a double sanction – criminal and administrative (see the judgment of 23.10.1995 in the case of Gradinger v. Austria, or the Grand Chamber judgment of 10.2.2009 in the case of Zolotukhin v. Russia).

Advocate General remarked in his statement that in the event that a fundamental right is laid down in both the Charter and the ECHR, the Charter stipulates that that right must be given the meaning and scope which results from the ECHR. Advocate General states that the European Convention on Human Rights precludes measures which impose both an administrative and a criminal penalty in respect of the same facts. This makes his the position even more surprising.

Advocate General justifies his statement with the fact that not all EU member states ratified Article 4 of Protocol 7 to the ECHR, which recognizes the ne bis in idem principle. He says other states lodged reservations or interpretative declarations leading to the restriction of the scope of this article. This means that, according to Advocate General, the prohibition of a double sanction – administrative and criminal, was not incorporated entirely by all EU member states.

It is important to draw attention to a number of circumstances, that point to a different line of reasoning, refuting the view of Advocate General.

Firstly, it is worth pointing out that a great majority of EU member states did ratify Article 4 of Protocol 7 to the ECHR with no reservations (Sweden among others, from where the reference for a preliminary ruling originates), or even incorporated it into its constitutional jurisdiction (for example Poland). The CJEU ruling that is in line with the opinion of Advocate General would encourage these states to take a step back.

Polish Constitutional Tribunal in the judgment of 18 November 2010 r. (Ref. P 29/09) noted that: “According to Article 4.1 of Protocol 7 to the ECHR no one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offense for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State. According to the teleological interpretation of this provision, the behavior it refers to does not have to be defined in the national legal system as criminal offence. “Criminal proceedings”, on the other hand, should be defined broadly as proceedings in a “criminal case” in the understanding of Article 6 of the ECHR. According to the established case law, criminal proceeding are proceedings that – apart from criminal offences – may concern minor offences, some tax law offences, as well as some administrative law offences. According to the ECtHR establishing the branch of law under which the offence should be qualified is merely a formal step in establishing whether we are dealing with a criminal case (see ECtHR judgment of 8 June 1976 in the case Engel et al. v. Netherlands, ECtHR judgment of 25 August 1987 in the case Lutz v. Germany, ECtHR judgment of 22 May 1990 in the case Weber v. Switzerland). Greater attention is paid to the nature of the offence (ECtHR judgment of 28 June 1984 in the case Campbell and Feli v. Great Britian) and the type of sanction that may be imposed (ECtHR judgment of 2 September 1998 in the case Kadubec v. Slovakia).”

This shows that some states integrated into their constitutional jurisprudence the line of reasoning taken by the ECtHR with respect to Article 4 of Protocol 7. This of course does not automatically mean that there are no problems concerning this way of applying the ne bis in idem principle at the legislative level or the level of common courts. The reference for preliminary ruling made by the Swedish court in the current case proves this fact. Taking this into consideration, it is worth asking the question whether judgment compliant with the opinion of Advocate General will not discourage courts in the future.

The quote from the Polish Constitutional Court’s ruling also indicated that the way of understanding the ne bis in idem principle proposed by the ECtHR can have its roots not only in the Article 4 of Protocol 7, but also Article 6 of the Convention. Some of the judgments mentioned were passed before November 1, 1988 when Protocol 7 entered into force. In addition the judgments concerned states that did not sign Protocol 7 in this regard (Great Britain, Germany). This shows that the ECtHR understanding of the ne bis in idem principle is universal in all democratic states (including the entire EU), and as such is part of the EU legal order. In this case, a CJEU judgment following the line of thought proposed by Advocate General would constitute a difficult to understand step back.

Another issue worth remembering when considering the view of Advocate General is the tendency to recognize criminal judgments in states bound by the Schengen provisions. If the member states want to establish the ne bis in idem principle in mutual relations there is no reason to argue that within one state the prohibition to impose double sanction in the ECtHR understanding should not be introduced.

All the arguments presented above, as well as other which would require a more detailed analysis, indicate that the opinion of Advocate General should not be shared by the Court in its final ruling.

Dr Piotr Kładoczny, expert of the “Europe of Human Rights”

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