Information Note on the Court’s case-law 207

May 2017

Jóhannesson and Others v. Iceland - 22007/11

Judgment 18.5.2017 [Section I]

Article 4 of Protocol No. 7

Right not to be tried or punished twice

Parallel administrative and criminal proceedings in respect of the same conduct: violation

Facts – The first and second applicants had tax surcharges imposed on them in administrative proceedings for failing to decla re certain income on their tax returns. In subsequent criminal proceedings they were ultimately convicted of criminal offences in respect of the same omissions and were given suspended prison sentences and a fine. The tax surcharges were taken into account in fixing the level of the fine. In the Convention proceedings, the applicants complained under Article 4 of Protocol No. 7 that they had been prosecuted and punished twice in respect of the same offence.

Law – Article 4 of Protocol No. 7: The Court was s atisfied that the criminal offences for which the applicants were prosecuted and convicted were based on the same set of facts as those for which the tax surcharges had been imposed. It went on to examine whether there had been a duplication of the trial a nd punishment. In that connection, it reiterated that dual proceedings concerning, as in the applicant’s case, both criminal and administrative law were not proscribed by Article 4 of Protocol No. 7 if the respondent State was able to demonstrate convincin gly that the two sets of proceedings were “sufficiently closely connected in substance and in time” (see A and B v. Norway [GC], 24130/11 and 29758/11, 15 November 2016, Information Note 201 ).

That test was not satisfied in the instant case.

Firstly, as regards the connection in substance, the Court accepted that the two sets of proceedings pursued complementary purposes, the consequences of the applicants’ conduct had been foreseeable and, since the tax surcharges had been offset against the fines, the sanctions already imposed in the tax proceedings had been sufficiently taken into account in sentencing in the criminal proceedings. However, as regards the collection of the evidence, which was an imp ortant factor in the evaluation of a connection in substance, despite having access to the tax investigators’ reports and the documents collected during the tax audit, the police in charge of the criminal investigation had conducted their own independent i nvestigation and that had resulted in the applicants’ conviction by the Supreme Court. The applicants’ conduct and their liability under the different provisions of tax and criminal law had thus been examined by different authorities and courts in proceedi ngs that were largely independent of each other.

Secondly, as regards the connection in time, it had to be sufficiently close to protect the individual from being subjected to uncertainty and delay and from proceedings becoming protracted. In the applicant s’ cases, the overall length of the two sets of proceedings was about nine years and three months, with the proceedings being conducted in parallel for just over a year. The applicants were not indicted until some 15 to 16 months after the decisions of the tax authorities in the administrative proceedings and were not convicted until some four years after those decisions. The Supreme Court´s judgment (upholding the applicants’ convictions and adding further convictions in respect of the first applicant) was delivered more than a year later still. The Government had failed to explain the delays.

Accordingly, in view in particular of the limited overlap in time and the largely independent collection and assessment of evidence, there had not been a sufficiently close connection in substance and in time between the tax proceedings and the criminal proceedings for them to be considered compatible with the bis criterion in Article 4 of Protocol No. 7.

Conclusion : violation (unanimously).

Article 41: EUR 5,000 to the first applicant and EUR 10,000 to the second applicant in respect of non-pecuniary damage; finding of a violation constituted sufficient just satisfaction in respect of any pecuniary damage.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

Click here for the Case-Law Information Notes