Information Note on the Court’s case-law 201

November 2016

A and B v. Norway [GC] - 24130/11 and 29758/11

Judgment 15.11.2016 [GC]

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: no violation

Facts – The applicants had tax surcharges imposed on them in administrative proceedings for failing to declare certain income on their tax returns. In parallel criminal proceedings they were convicted and sentenced for tax fraud for the same omissions. The applicants complained under Article 4 of Protocol No. 7 that they had been prosecuted and punished twice in respect of the same offence.

On 7 July 2015 a Chamber of the Court decided to relinquish jurisdiction in favour of the Grand Chamber.

Law – Article 4 of Protocol No. 7: This provision contained three distinct guarantees and provided that for the same offence, no one should be (i) liable to be tried, (ii) tried, or (iii) punished. Whether the administrative proceedings were criminal for the purposes of Article 4 of Protocol No. 7 was to be assessed on the basis of the three Engel criteria developed for the purposes of Article 6 of the Convention. The question as to whether the offences dealt with in separate proceedings were the same required a facts-based assessment rather than a formal assessment consisting of comparing the essential elements of the offences.

The object of Article 4 of Protocol No. 7 was to prevent the injustice of a person being prosecuted or punished twice for the same criminalised conduct. It did not outlaw legal systems which took an integrated approach to the social wrongdoing in question, and in particular an approach involving parallel stages of legal response by different authorities and for different purposes. A fair balance had to be struck between duly safeguarding the interests of the individual protected by the ne bis in idem principle, on the one hand, and accommodating the particular interest of the community in being able to take a calibrated regulatory approach in the area concerned, on the other.

Article 4 of Protocol No. 7 did not exclude the conduct of dual proceedings provided that certain conditions were fulfilled. In particular, the respondent State had to demonstrate convincingly that the dual proceedings in question were sufficiently closely connected in substance and in time. That implied not only that the purposes pursued and the means used to achieve them should in essence be complementary and linked in time, but also that the possible consequences of organising the legal treatment of the conduct concerned in such a manner should be proportionate and foreseeable for the persons affected. Material factors for determining whether there was a sufficiently close connection in substance included (i) whether the different proceedings pursued complementary purposes and therefore addressed different aspects of the social misconduct involved, (ii) whether the duality of the proceedings concerned was a foreseeable consequence, both in law and in practice, (iii) whether the relevant sets of proceedings were conducted in such a manner as to avoid as far as possible any duplication in the collection as well as the assessment of the evidence, notably through adequate interaction between the various competent authorities to bring about that the establishment of facts in one set was also used in the other set and (iv) whether the sanction imposed in the proceedings which became final first was taken into account in those which became final last, so as to prevent the individual concerned bearing an excessive burden. The connection in time had to be sufficiently close to protect the individual from being subjected to uncertainty and delay and from proceedings becoming protracted over time. The weaker the connection in time the greater the burden on the State to explain and justify any such delay as may be attributable to its conduct of the proceedings.

The national authorities had found that the applicants’ conduct called for two responses, an administrative penalty and a criminal one. The administrative penalty of a tax surcharge served as a general deterrent and to compensate for the considerable work and costs incurred by the tax authorities on behalf of the community in carrying out checks and audits in order to identify such defective declarations. The criminal conviction served not only as a deterrent but also had a punitive purpose in respect of the same anti-social omission, involving the additional element of the commission of culpable fraud. It was particularly importance that, in sentencing the applicants, the domestic court had had regard to the fact that they had already been sanctioned by the imposition of the tax penalty. The conduct of the dual proceedings, with the possibility of different cumulated penalties had been foreseeable in the circumstances and the establishment of facts made in one set of proceedings had been relied upon in the other.

There was no indication that the applicants had suffered any disproportionate prejudice or injustice and there was a sufficiently close connection, both in substance and in time, between the two sets of proceedings.

Conclusion : no violation (sixteen votes to one).

(See also Sergey Zolotukhin v. Russia [GC], 14939/03, 10 February 2009, Information Note 116 ; Engel and Others v. the Netherlands , 5100/71 et al., 8 June 1976; R.T. v. Switzerland (dec.), 31982/96, 30 May 2000, Information Note 18 ; Nilsson v. Sweden , 73661/01, 13 December 2005, Information Note 81 ; and Nykänen v. Finland , 11828/11 , 20 May 2014)

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