FOURTH SECTION

CASE OF BOMAN v. FINLAND

( Application no. 41604/11 )

JUDGMENT

STRASBOURG

17 February 2015

FINAL

17/05/2015

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Boman v. Finland ,

The European Court of Human Rights ( Fourth Section ), sitting as a Chamber composed of:

Guido Raimondi , President, Päivi Hirvelä , George Nicolaou , Ledi Bianku , Zdravka Kalaydjieva , Krzysztof Wojtyczek , Faris Vehabović , judges, and Françoise Elens-Passos , Section Registrar ,

Having deliberated in private on 27 January 2015 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 41604/11) against the Republic of Finland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Finnish national, Mr Alexander Boman (“the applicant”), on 4 July 2011 .

2 . The applicant was represented by Mr Marcus M å tar , a lawyer practising in Mariehamn . The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.

3 . The applicant alleged, in particular, that the ne bis in idem principle had been violated in his case .

4 . On 15 March 2013 the application was communicated to the Government .

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . The applicant was born in 1992 and lives in Jomala .

A. Criminal proceedings against the applicant

6 . On 26 March 2010 t he applicant was charged with , inter alia , causing a serious traffic hazard ( törkeä liikenneturvallisuuden vaarantaminen , grovt äventyrande av trafiksäkerheten ) and operatin g a vehicle without a licen c e ( ajoneuvon kuljettaminen oikeudetta , olovlig körning ), both acts having been committed on 5 February 2010 . The prosecutor requested that , in relation to the charge of causing a serious traffic hazard, a driving ba n be imposed.

7 . On 22 April 2010 the District Court ( käräjäoikeus , tingsrätten ) convicted the applicant as charged and sentenced him to 75 day- fines , amounting to 450 euros (EUR) . A driv ing ban was also imposed until 4 September 2010 on the basis of section 44 of the Driving Licence Act of the Province of Åland .

8 . No appeal was made against the judgment and it became final.

B. Administrative proceedings

9 . On 28 May 2010 the police imposed a new driving ban on the applicant from 5 September to 4 November 2010 on the basis of section 46 §§ 1 (c) and 3 of the Driving Licence Act of the Province of Åland . In their decision the police referred to the fact that on 5 February 2010 the applicant had been driving a vehicle without a licen c e and that the District Court had convicted him for this by final judgment on 22 April 2010.

10 . By letter dated 22 June 2010 the applicant appealed to the Åland Administrative Court ( hallinto-oikeus , förvaltningsdomstolen ) , claiming that he had been tried and convicted twice in the same matter. He referred to Article 4 of Protocol No. 7 to the Convention.

11 . On 20 July 2010 the Åland Administrative Court rejected the applicant ’ s appeal and upheld the driving ban. The c ourt found that the District Court had imposed the driving ban for causing a serious traffic hazard whereas the police had imposed it for operatin g a vehicle without a licen c e . Therefore, the applicant was not punished twice for the same offence and his rights protected by Article 4 of Pr otocol No. 7 to the Convention were not violated.

12 . By letter dated 12 August 2010 the applicant appealed to the Supreme Administrative Court ( korkein hallinto-oikeus , högsta förvaltningsdomstolen ), reiterating the grounds of appeal already presented before the Administrative Court. He stressed that both the criminal and the administrative proceedings had related to the same facts which had taken place on 5 February 2010.

13 . On 19 January 2011 the Supreme Administrative Court upheld the Administrative Court ’ s decision. It found that the District Court had imposed the driving ban for causing a serious traffic hazard whereas the police had imposed it for operatin g a vehicle without a licen ce . Article 4 of Pr otocol No. 7 to the Convention had therefore not been violated. The decision was not unanimous and one of the judges expressed a dissenting opinion. In her opinion , it was not to be ruled out that a driving ban constituted a criminal sanction. Referring to the case Zolotukhin v. Russia , she considered that after the applicant ’ s final conviction by the District Court , a new driving ban based on the same facts on the basis of which he had already been convicted could no longer be imposed. Therefore , she would have quashed the police decision as well as the Administrative Court ’ s decision.

II. RELEVANT DOMESTIC LAW AND PRACTICE

14 . Section 44 of the Driving Licence Act of the Province of Åland ( kö rkorts l a ge n fö r landskapet Å land ; Act no. 79/1991 , as modified by Act no. 29/2004 ) read s as follows:

“ Anyone who is found to have made himself or herself guilty of causing a serious traffic hazard, of drunken driving or of aggravated drunken driving while operating a motor vehicle shall have a driving ban imposed by a court of law. However, if the driver is not sentenced to a punishment for the act, the court may waive imposing a driving ban.

The driving ban referred to in subsection 1 may be imposed for a maximum period of fi ve years. The decision of the court shall specify the last day of validity of the driving ban. The decision shall be enforced despite any appeal.

In determining the time of validity of the driving ban, account shall be taken of the impact of the ban on the recipient ’ s subsistence and other circumstances. The time for which a driving ban or a temporary driving ban has been imposed on the driving licence holder in an administrative procedure shall be d educ t ed from the time of validity of the driving ban imposed by the court. If, thereafter, no time remains, the driving ban shall expire on the day when the decision is delivered or issued.

W hen the driving ban is imposed, the driving licence holder must leave the licence with the police. If the driving licence holder refuses to leave the licence, it shall be taken from him or her. The driving licence holder shall regain the right to operate vehicles requiring a driving licence when the licence is returned to him or her. If the police have not taken possession of the licence, the driving licence holder shall regain the right to operate vehicles requiring a driving licence when a new licence is delivered.

Anyone on whom a driving ban has been imposed under the provisions of subsection 1 shall, during the validity of the driving ban, have no right to drive a vehicle requiring a driving licence, to take driver training under Chapter 2 of this Act or to train drivers under Chapter 3 of this Act. ”

15 . Section 46 of the same Act provides the following:

“ The police shall impose a driving ban on a driving licence holder if the latter

a) no longer fulfils the preconditions for obtaining a driving licence;

b) has failed to present a medical certificate within a prescribed time or to pass a new test ordered for him or her;

c) when operating a motor vehicle, has made himself or herself guilty of an act not referred to in Section 45 which is punishable under the Traffic Offence Act of the Province of Ã… land ( Act no. 28/2004) and indicates serious disregard for traffic safety, or has made himself or herself guilty of operating a vehicle without a licence ; ( Act no. 29/2004)

d) three times within one year or four times within two years or, as a holder of a driving licence with a trial period, twice within one year has made himself or herself guilty of an act punishable under s ections 2, 7 and 11 of the Traffic Offence Act of the Province of Ã… land ( Act no. 28/2004) , with the exception of acts punishable by a petty fine other than speeding offences, or guilty of a detector offence referred to in the Act o n Applying, in the Province of Ã… land , the Act Prohibiting Devices that Hamper Traffic Supervision ( Act no. 11/2003) , or guilty of an offence agai nst the Act of the Province of Ã… land on Vocational Competence of Lorry and Bus Drivers; ( Act no. 86/2008)

e) has operated a vehicle despite a valid driving ban; ( Act no. 36/1993) or

f) has been sentenced for drunken driving abroad or has made himself or herself guilty of such an act abroad.

The driving ban referred to in subsection 1, paragraphs a and b , shall be valid for an indefinite period.

The driving ban referred to in subsection 1, paragraphs c, d , e and f , shall be valid for the maximum period of six months. In cases referred to in these paragraphs the police may, instead of imposing a driving ban, order that the driving licence holder must take a driving test again . ( Act no. 38/1993)

Anyone on who m a driving ban has been imposed under the provisions of subsection 1, paragraph c, except on the basis of operating a vehicle without a licence, has the right to have his or her matter reviewed by a court of law if he or she refers the matter to the court within a week from the date of being informed about the decision. In the case of such a referral the court shall, without delay, inform the police about the pendency of the ma tt er . In such cases the police shall, without delay , return the driving licence. If the court holds that the driving ban is justified, it shall determine how long the ban is to be valid . However, the period of validity must not exceed the original period determined by the police. The court may not declare the driving ban conditiona l. ( Act no. 5/2004) ”

16 . The Supreme Administrative Court has considered in its case-law ( KHO :2009:60 ) that under Finnish law a driving ban was both an administrative security measure as well as a criminal sanction. In that case , a fter the imposition of a driving ban by the police , the District Court had delivered a final judgment by which the charges against the applicant had been dropped. As the applicant was not found guilty of the sole act on the basis of which the driving ban had been imposed by the police , there was no basis for imposing the driving ban and it had to be quashed.

II I . RELEVANT SWEDISH PRACTICE

17 . After the delivery of the Court ’ s judgments in cases Nykänen and Glantz (see Nykänen v. Finland , no. 11828/11 , § 52, 20 May 2014; and Glantz v. Finland , no. 37394/11 , § 62, 20 May 2014 ), the Swedi s h Supreme Administrative Court found in its judgment of 11 December 2014 (no. 1833-14 ) that the Swedish practice had been accepted by the Court. The court found that i t was clear that a withdrawal of a dr i ving license on the b as is of a conviction or other equivalent decision concerning a traffic offen c e wa s not considered as new criminal proceedings. T his situation di f fer ed from that of tax surcharges and criminal proceedings for tax fraud for the same incorrect information and d id not therefore violate again s t the ne bis idem principle in Article 4 § 1 of Protocol No. 7 to the Convention.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL NO. 7 T O THE CONVENTION

18 . The applicant complained under Article 4 of Protocol No. 7 to the Convention that he had been tried and convicted twice in the same matter. Both the District Court and the police had imposed a driving ban for driving a vehicle without a licen c e on the basis of the same facts. Even though the District Court ’ s judgment had become final on 22 April 2010, the police had imposed a new driving ban on 28 May 2010.

19 . Article 4 of Protocol No. 7 to the Convention reads as follows:

“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.

2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.

3. No derogation from this Article shall be made under Article 15 of the Convention.”

20 . The Government contested that argument.

A. Admissibility

21 . The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties ’ submissions

(a) The applicant

23 . The applicant noted that the main purpose of the driving ban was punitive. In the case Nilsson v. Sweden the Court had found that a driving ban constituted a punishment within the meaning of the Convention. Moreover, in its judgment the District Court had called the driving ban an “other criminal sanction”. The relevant domestic law distinguished between situations whe re a driving ban was to be decided by a court and whe re it was to be decided by the police. It was for the courts to handle the most “serious” cases and for the police to handle the rest.

(b) The Government

25 . The Government noted that, in their view, it was of no significance to the present case whether the administrative driving ban was held to fall within the notion of a “penal procedure” within the meaning of Article 4 of Protocol No. 7 to the Convention or not. The District Court and the police had not b ase d the bans on the same facts.

26 . The Government observed that , in the Ålandic system , a court of law decided on a driving ban for some offences while the police did so for the others. The legislation in that respect was very clear. It could not be presumed that this systemic structure as such amounted to a situation where the imposition of driving licence sanctions partly in criminal proceedings and partly by the police violated Article 4 of Protocol No. 7 of the Convention. In the relevant travaux préparatoires , a driving ban wa s described as a driving licence sanction that could be imposed in addition to a criminal sanction. It was a securing measure , directed at the right to drive motor vehicles in order to prevent drivers from driving when the y were considered to lack the capacity to do so. The purpose of the driving ban was to improve road safety.

27 . The Government noted that the prosecutor, on the one hand, had required in his indictment a driving ban expressly and only under count one , concerning the applicant ’ s having caus ed a serious traffic hazard. The police, on the other hand, had based the driving ban only on the applicant ’ s having operat ed a vehicle without a licence. In their decision, the police had taken into account the earlier driving ban imposed by the police on the applicant on 22 January 2009 for operating a vehicle without a licence. The new driving ban would not have exceeded two months without the existence of an earlier ban. The applicant was not therefore tr i ed, sentenced or punished twice as the driving ban based on his operating a vehicle without a licence had been imposed in proceedings other than those leading to other sanctions. Referring to the case Nilsson v. Sweden , the Government argued that t his course of conduct did not amount to initiating new proceedings but was , in terms of substance and time , connected with the criminal proceedings where the imputation and imposition of sanction s otherwise took place. There was thus no violation of Article 4 of Protocol No. 7 of the Convention.

2. The Court ’ s assessment

(a) Whether the proceedings w ere criminal in nature ?

28 . The Court notes first of all that it is clear that the criminal proceedings against the applicant before the District Court were criminal in nature.

29 . As to the criminal nature of a driving ban, the Court reiterates that the legal characterisation of the procedure under national law cannot be the sole criterion of relevance for the applicability of the principle of ne bis in idem under Article 4 § 1 of Protocol No. 7. Otherwise, the application of this provision would be left to the discretion of the Contracting States to a degree that might lead to results incompatible with the object and purpose of the Convention (see for example StorbrÃ¥ten v. Norway ( dec. ), no. 12277/04, ECHR 2007 ‑ ... ( extracts ), with further references). The notion of “penal procedure” in the text of Article 4 of Protocol No. 7 must be interpreted in the light of the general principles concerning the corresponding words “criminal charge” and “penalty” in Articles 6 and 7 of the Convention respectively (see Haarvig v. Norway ( dec. ), no. 11187/05, 11 December 2007; Rosenquist v. Sweden ( dec. ), no. 60619/00 , 14 September 2004; Manasson v. Sweden ( dec. ), no. 41265/98 , 8 April 2003; Göktan v. France , no. 33402/96 , § 48, ECHR 2002-V; Malige v. France , 23 September 1998, § 35, Reports of Judgments and Decisions 1998 ‑ VII; and Nilsson v. Sweden ( dec. ), no. 73661/01 , ECHR 2005 ‑ XIII).

30 . The Court ’ s established case-law sets out three criteria, commonly known as the “Engel criteria” (see Engel and Others v. the Netherlands , 8 June 1976, Series A no. 22), to be considered in determining whether or not there was a “criminal charge”. The first criterion is the legal classification of the offence under national law, the second is the very nature of the offence and the third is the degree of severity of the penalty that the person concerned risks incurring. The second and third criteria are alternative and not necessarily cumulative. This, however, does not rule out a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge (see Jussila v. Finland [GC], no. 73053/01, § § 30-31 , ECHR 2006 ‑ XIV; and Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98 , §§ 82-86, ECHR 2003 ‑ X).

31 . The Court has taken a stand on the criminal nature of a driving ban in several cases, either in the context of Article 6 or in the context of Article 4 of Protocol No. 7 . In the case Escoubet v. Belgium , the Court found in the context of Article 6 of the Convention that the temporary withdrawal of the applicant ’ s driving licence for six days, before the commencement of any proceedings, on account of a suspected drink -driving offence did not concern a criminal charge (see Escoubet v. Belgium [GC], no. 26780/95, § 38 , ECHR 1999 ‑ VII ). A s imilar approach was followed in the case Mulot v. France . In that case the applicant ’ s driving licence was temporarily withdrawn by a prefect for six months for safety reasons before the commencement of any court proceedings (see Mulot v. France ( dec. ), no. 37211/97 , 14 December 1999) . Also in the case Hangl v. Austria , the driving ban imposed by the police authorities for two weeks was considered to be of a preventive nature and not of criminal character (see Hangl v. Austria ( dec. ), no. 38716/97 , 20 March 2001 ) . However, in the case Nilsson v. Sweden (cited above) , the Court found that although under Swedish law the withdrawal of a driving licence had traditionally been regarded as an administrative measure designed to pr eserve road safety, withdrawal on the ground of a criminal conviction constituted a “criminal” matter for the purpose of Article 4 of Protocol No. 7. What was more, in the view of the Court, the severity of the measure – suspension of the applicant ’ s driving licence for 18 months – was in itself so significant, regardless of the context of his criminal conviction, that it could ordinarily b e viewed as a criminal sanction.

32 . I n the present case, the Court notes that the second driving ban was issued by the police for two months for reasons of road safety. This decision was taken by the police in the administrative proceedings after the criminal proceedings against the applicant had become final. The first driving ban had already been imposed by the District Court during the criminal proceedings. Following the line of interpretation adopted in Nilsson v. Sweden and taking into account the applicant ’ s situation , the Court considers that the second driving ban issued by the police in the administrative proceedings is to be regarded as criminal for the purposes of Article 4 of Protocol No. 7 to the Convention. The parties also seem to make this presumption.

(b) Whether the offences for which the applicant was prosecuted were the same ( idem )?

34 . In the present case the parties disagree on whether the criminal proceedings against the applicant , on the one hand, and the proceedings imposing the second driving ban , on the other hand, arose from the same facts. The Court notes that, in the criminal proceedings, the applicant was charged with , inter alia , causing a serious traffic hazard and operatin g a vehicle without a licen c e , both acts havi ng been committed on 5 February 2010 . The District Court convicted the applicant as charged and sentenced him to day- fines . T he District Court imposed the first driving ban on the applicant for causing a serious traffic hazard whereas the police had imposed it for operating a vehicle without a licence . In their decision concerning the imposition of the second driving ban, the police referred to the fact that on 5 February 2010 the applicant had been driving a vehicle without a licen c e and that the District Court had convicted him for this by final judgment.

35 . The Court considers that both sets of proceedings arose from the same facts , namely from the applicant ’ s driving on 5 February 2010. There is no other set of facts which c ould have constituted the basis for the police ’ s decision to impose the second driving ban. On the contrary, the police specifically relied in its decision on the events of 5 February 2010 and referred to the fact that the applicant had been convicted f or these events by the District Court by a final judgment. The Court therefore considers that the two impugned sets of proceedings constitute d a s ingle set of concrete factual circumstances ar i s ing from identical facts or facts which were substantially the same .

(c) Whether there was a final decision?

36 . The Court 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” decision (see Franz Fischer v. Austria , no. 37950/97, § 22, 29 May 2001; Gradinger v. Austria , 23 O ctober 1995, § 53, Series A no. 328 ‑ C; and Sergey Zolotukhin v. Russia [GC], cited above, § 107 ). According to the Explanatory Report to Protocol No. 7, which itself refers back to the European Convention on the International Validity of Criminal Judgments, a “decision is final ‘ if, according to the traditional expression, it has acquired the force of res judicata . This is the case when it is irrevocable, that is to say when no further ordinary remedies are available or when the parties have exhausted such remedies or have permitted the time-limit to expire without availing themselves of them ’ ”. This approach is well entrenched in the Court ’ s case-law (see, for example, Nikitin v. Russia , no. 50178/99 , § 37, ECHR 2004 ‑ VIII; and Horciag v. Romania ( dec. ), no. 70982/01 , 15 March 2005).

38 . In the present case the applicant did not appeal against the District Court judgment of 22 April 2010 . The applicant thus permitted the time ‑ limit to expire without exhausting the ordinary remedies. His conviction therefore became “final”, within the autonomous meaning given to the term by the Convention, on 22 April 2010 .

(d) Whether there was a duplication of proceedings ( bis )?

39 . The Court reiterates that Article 4 of Protocol No. 7 prohibits the repetition of criminal proceedings that have been concluded by a “final” decision. Article 4 of Protocol No. 7 is not only confined to the right not to be punished twice but extends also to the right not to be prosecuted or tried twice (see Franz Fischer v. Austria , cited above, § 29). Were this not the case, it would not have been necessary to add the word “punished” to the word “tried” since this would be mere duplication. Article 4 of Protocol No. 7 applies even where the individual has merely been prosecuted in proceedings that have not resulted in a conviction. The Court reiterates that Article 4 of Protocol No. 7 contains three distinct guarantees and provides that no one shall be (i) liable to be tried, (ii) tried or (iii) punished for the same offence (see Nikitin v. Russia , cited above, § 36).

40 . The Court notes that Article 4 of Protocol No. 7 clearly prohibits consecutive proceedings if the first set of proceedings has already become final at the moment when the second set of proceedings is initiated (see for example Sergey Zolotukhin v. Russia [GC], cited above).

42 . However, the Court has also found in its previous case-law (see R.T. v. Switzerland ( dec. ), no. 31982/96, 30 May 2000; and Nilsson v. Sweden , ( cited above ) ) that although different sanctions (suspended prison sentences and withdrawal of driving licences) concerning the same matter (drunken driving) have been imposed by different authorities in different proceedings, there has been a sufficiently close connection between them, in substance and in time. In those cases the Court found that the applicants were not tried or punished again for an offence for which they had already been finally convicted in breach of Article 4 § 1 of Protocol No. 7 to the Convention and that there was thus no repetition of the proceedings.

43 . Turning to the present case and regarding whether there was repetition in breach of Article 4 § 1 of Protocol No. 7 to the Convention, the Court notes that both the use of criminal proceedings and the imposi tion of a driving ban by the police in the administrative proceedings form part of the sanctions under both Finnish and Ålandic law for traffic offence s . A driving ban is considered to be both an administrative security measure as well as a criminal sanction. Even if the different sanctions are imposed by two different authorities in different proceedings, there is nevertheless a unity between them, in substance and in time . This is illustrated by the fact that, according to the wording of the relevant legislation, namely section 46 § 1 (c) of the Driving Licence Act of the Province of Åland , the imposition of a driving ban on the basis of that provision presupposes that a person has already been found guilty of a traffic offence or of operating a vehicle without a licence . I n the present case, t he police decision , shortly after the judgment in the criminal proceedings , to impose the second driving ban was directly based on the applicant ’ s final conviction by the District Court for traffic offence s and thus did not contain a separate examination of the offence or conduct at issue by the police . Therefore, it must be said that, under the Ålandic system , the two proceedings, namely the criminal proceedings against the applicant and the proceedings to impose a driving ban , were intrinsically linked together , in substance and in time , to consider that these measures against the applicant took place within a single set of proceedings for the purpo se of Article 4 of Protocol No. 7 to the Convention . In conclusion, the Court finds that the applicant was not convicted twice for the same matter in two separate sets of proceedings.

FOR THESE REASONS, THE COURT

1. Declares unanimously the application admissible;

2 . Holds , by six votes to one , that there has been no violation of Article 4 of Protocol No. 7 to the Convention .

Done in English, and notified in writing on 17 February 2015 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Françoise Elens -Passos Guido Raimondi Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Wojtyczek is annexed to this judgment.

G.R . A . F.E.P .

DISSENTING OPINION OF JUDGE WOJTYCZEK

1. The instant case raises important issues u nder Article 4 of Protocol N o . 7. I have doubts about the approach adopted in the present case, particularly regarding the criteria applied in the reasoning for the purpose of assessing whether proceedings were conducted twice for the same offence .

I accept that the two sets of proceedings against the applicant were criminal in nature. I agree that the offence for which the applicant was prosecuted in the two sets of proceedings was the same and that the police imposed a sanction after the criminal judgment delivered by the competent D istrict C ourt became final. At the same time, I find it difficult to agree with the statement that “the applicant was not convicted twice for the same matter in two separate sets of proceedings” (paragraph 43 in fine ).

2. The ne bis in idem principle is a fundamental guarantee of justice in criminal law. The interpretation and proper application of this principle are issues of the utmost complexity. To my regret, I note en passant that the case-law of the Court pertaining to Article 4 of Protocol N o . 7 is neither consistent nor clear, and that many important legal questions arising from this provision have been lef t without satisfactory answers.

There is no doubt that the interpretatio n of Article 4 of Protocol N o . 7 must take into account the variety of legal traditions of the High Contracting Parties. Without entering into a detailed comparative law analysis, I would just like to point out that the ne bis in idem principle is understood in different ways in different national legal systems. This makes the interpretation of the provision in question particularly difficult.

The ne bis in idem principle was initially conceived to prevent multiple prosecutions and trials within the framework of the same body of procedural rules (i.e. criminal procedure). This preoccupation appears clearly in the wo rding of Article 4 of Protocol N o . 7 (especially in the second paragraph). However, the most difficult problems arise where criminal sanctions in the strict sense are cumulated with other types of sanctions, such as administrative sanctions or sanctions for petty offences. In most European States, the law provides for situations in which different sanctions for the same illegal act may be imposed in different types of proceedings. It is not uncommon that competence for imposing sanctions for the same illegal acts is divided between different organs of the State applying different substantive and procedural rules. There may be justified reasons for adopting such solutions which are not necessarily incompatible w ith Article 4 of Protocol N o . 7.

3. The interpretation of Article 4 of Protocol N o . 7 must also take into consideration the functions and goals of the ne bis in idem principle, which are not mentioned in the explanatory report to the P rotocol .

The principle under consideration protects the stability ( res judicata ) of criminal judgments and more broadly the authority of the courts. It enhances legal certainty by preventing prolonged stress and uncertainty for the accused as regards the outcome of possible subsequent repressive proceedings (compare, for instance, G. Conaway, “ Ne bis in idem in International Law”, International Criminal Law Review , vol. 3 (2003) p. 217-244, at 222-223). It protects against the misuse of criminal proceedings for the purpose of harassment. The imposition of a criminal sanction by a single judicial decision may serve the justice and rationality of criminal policies: all the relevant factual circumstances are comprehensively assessed by the same judges, who also consider all the applicable sanctions . There is no risk of two or more bodies making conflicting choices as regards the punishment of the same offense.

4. Turning to the circumstances of the instant case, I note the applicant was convicted and sentenced by the D istrict C ourt , inter alia , for operating a vehicle without a licence. A joint punishment of 75 day-fines was imposed for the five charges. Later, in subsequent proceedings the police imposed a further sanction (a driving ban) for operating a veh icle without a driving licence.

Different criteria may be used to establish whether specific issues of criminal liability are identical for the purpose of applying the ne bis in idem principle. In some judgments, the Court has looked at the legal characterisation of the facts. In others the Court has referred to the facts themselves. Whichever criterion we apply in the instant case, the outcome would be the same as the two sets of proceedings involved the same facts and in both proceedings exactly the same legal characterisation of the facts was adopted (opera ting the car without a license).

I further note that the applicant was punished twice in the two sets of proceedings. Moreover, the police and the court imposed the same type of punishment (a driving ban), although they imposed it for different offenses. This is not a situation of different State bodies imposing different types of sanctions in different proceedings .

5. The majority refer to the cases of R . T . v. Switzerland and Nil s son v. Sweden , in which the Court attempted to establish criteria for assessing whether it is acceptable to impose sanctions for the same acts in two sets of proceedings. In this case-law the Court verified whether there was a “sufficiently close connection” between the different proceedings “in substance and in time”. It is obvious that proximity in time is an important factor to take into account, whereas the criterion of “close connection in substance” between different proceedings seems obscure and therefore inoperative .

In my view, when applying the ne bis in idem principle it is necessary to examine, among other things, the specific purposes of each procedure, the nature and severity of the applicable sanctions, the practical impact of their accumulation, the margin of appreciation left to S tate bodies when imposing these sanctions, as well as the order of the different procedures, their length and the detailed rules concerning their articulation and interactions. Furthermore, it may be necessary to assess whether the specific purposes of a procedure require special knowledge on the part of the adjudicating body. At any event, dividing the imposition of sanctions for the same acts between different S tate bodies requires appropriate justification. Dividing the imposition of sanctions may be justified in particular where the different procedures do not “overlap” in their aims and effects but are established to achieve complementary aims which would be more difficult to achieve in a unified p rocedure before the same court.

I note that in the present case the duplication of proceedings cannot be justified by the different nature of the sanctions imposed in the second set of proceedings: the same type of sanction (a driving ban) was imposed in the two sets of proceedings. Moreover, whereas I fully respect the freedom of the S tates to choose and shape their substantive and procedural criminal law, I would observe that the concern to secure just punishment for an illegal act is an argument against dividing the imposition of the same type of sanctions between different State bodies and proceedings. I further note that the police have some discretion in imposing sanctions under s ection 46 §§ 1 (c) and 3 of the Driving Licence Act of the Province of Åland : they may impose a driving ban of up to 6 months. If the driver has a valid driving licence, the police – instead of imposing a driving ban – may order the person concerned to retake the driving test. Although the punishment may appear relatively mild and a margin of discretion is needed to achieve the aims of the procedure, for some time the applicant nonetheless suffered additional uncertainty about the final outcome of the different proceedings. I also regret that the majority decided not to consider in greater detail the purposes of the two procedures and the rules relating to their articulation and interaction.

Taking into account the foregoing arguments, I conclude that the different proceedings against the applicant cannot be considered as mere stages in one single set of proceedings for the purpose of A rticle 4 of Protocol N o . 7. The applicant was punished twice for the same act (namely operating a car without a driving license), in violation of the prohibition enshrined in this provision.