DISSENTING OPINION OF MR. L. LOUCAIDES

     I do not agree with the finding of the majority that the

applicant was "tried or punished again... for an offence" of which she

had previously been convicted within the meaning of Article 4 of

Protocol No. 7 to the Convention.

     The principle of non bis in idem safeguarded in the provision in

question aims at preventing criminal proceedings against a person in

respect of an "offence" for which he has already been acquitted or

convicted. Therefore, in order to establish a violation of this

principle in respect of any proceedings for an "offence" it must be

shown that such "offence" was previously the object of an acquittal or

conviction.

     The use of the term "offence" ("infraction") in the provision

under consideration is decisive for the meaning and effect of the

relevant prohibition: the drafters of the Convention were not aiming

at prohibiting prosecutions in respect of incidents or factual

situations which were dealt with before in other criminal proceedings;

they intended to prevent repetitive prosecutions for one and the same

crime.

     Whether an offence has become in the past the object of an

acquittal or a conviction cannot depend entirely on whether its factual

basis is the same as that in respect of which the autrefois acquit or

autrefois convict is claimed. An offence is identified not only by the

facts or the evidence which establish its commission but also by its

legal ingredients or characteristics. Therefore, in order to find a

violation of the prohibition of non bis in idem it must be established

that the complainant was tried or punished for more than once in

respect of an offence which is the same both as a matter of fact and

as a matter of law.

     Two or more offences are not necessarily the same merely because

they refer to the same facts. To accept otherwise would lead to absurd

results and to an unjustified hindrance to the application of the

criminal law. Take for example the case of somebody who with a machine-

gun kills simultaneously many persons standing in a row. He is tried

and convicted for the murder of the first of those persons. If he is

later prosecuted for the murder of any of the other victims it would

be absurd to disallow such prosecution through the application of the

doctrine of non bis in idem on the ground that the offence charged

refers to the same facts or incidents in respect of which the accused

was previously acquitted or convicted.

     It is true that successive prosecutions for offences based on the

same facts in all those cases where the offences could be the subject

of only one indictment may be an unjust and oppressive process

especially when the second and/or subsequent prosecution takes place

at a much later time than the first one. However, this undesirable

situation which could also arise even in respect of cases where the

offences are not based on the same facts is not meant to be the object

of the rule of non bis in idem. One could argue that such unjust or

oppressive judicial process would be incompatible with the principle

of fair hearing safeguarded under Article 6 of the Convention. But it

is not relevant to the doctrine of non bis in idem.

     The doctrine prescribes that a person cannot be tried or punished

twice for the same "offence" and the term "offence" does not mean

"act", "cause" or even "conduct". The last term is especially

objectionable for the purposes of the question under consideration for

a conduct may be composed of a wide spectrum of separate acts or

activities that may be both, factually and legally, distinct from each

other. Therefore, I believe that identifying the term "offence" with

the term "conduct" is an approach that must be reconsidered.

     In the present case the second offence, in respect of which the

applicant invokes Article 4 of Protocol No. 7, i.e. negligently

inflicting bodily injury, is, indeed, based on the same facts upon

which the applicant was already convicted for the offence of not

mastering a vehicle. However, taking into account their legal

ingredients and characteristics, the two offences are different and

therefore the provisions invoked by the applicant are not applicable.

     For the above reasons I find that there has been no violation of

Article 4 of Protocol No. 7 in this case.

     The applicant did not invoke Article 6 of the Convention and the

Commission did not examine the case under that Article.