Information Note on the Court’s case-law 48

December 2002

Zigarella v. Italie (dec.) - 48154/99

Decision 3.10.2002 [Section I]

Article 4 of Protocol No. 7

Right not to be tried or punished twice

Double prosecution: inadmissible

The applicant was prosecuted for offences against the town-planning laws.  He subsequently put his situation in order and the court held that there was no need to proceed with the prosecut ion on the ground that the offences no longer existed.  More than three months later, the applicant received a summons to appear in a second prosecution against him for the same offence.  When he informed the court that he had already been prosecuted for t he same facts, the court decided that the prosecution could not continue because there had already been a previous court decision, which in the meantime had become final.

Inadmissible under Article 4 of Protocol No. 7: that article is concerned not just w ith cases of double conviction but also with cases of double proceedings and it applies even where the proceedings did not end in conviction, the principle non bis in idem being valid in criminal matters whether the accused is convicted or not.  In the pre sent case, the applicant was prosecuted twice for the same offence involving the same act.  However, the second proceedings were opened in error and terminated as soon as the court became aware that that was so.  The question is therefore whether Article 4 of Protocol No. 7 is concerned with all double proceedings for one and the same offence, whether or not they are initiated with knowledge of the facts, or only double prosecutions initiated knowingly.  In the absence of any indication in the explanatory r eport on Protocol No. 7, the Court considers that, rather than confine itself to a literal interpretation of the term, it must give a teleological interpretation.  The object and aim of the rule in question demand, in the absence of any harm shown by the a pplicant, that only further proceedings opened intentionally infringe Article 4 of Protocol No. 7.  In the present case, however, there was no intentionality: when informed that there had been a breach of the principle non bis in idem , the Italian court i mmediately closed the proceedings.  In any event, the applicant did not have the capacity of victim since the courts, in substance, recognised the violation and put it right at domestic level: manifestly ill-founded.

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

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