CONCURRING OPINION OF JUDGE ZUPANČIČ

I agree with my colleagues concerning the outcome in this case.

1 . However, since the case has been effectively decided only via a procedural shortcut, I should like to elaborate on a few substantive issues. These comments might be useful in future cases where the Court encounters the same combination of double jeopardy ( ne bis in idem ) on the one hand and the notions of concurrence of offences (ideal and real/material) on the other.

2 . The procedural solution to this case may be found in paragraph 48, where the Court “notes that the applicant did not complain either to the domestic authorities or to the Court that he had been led to believe that he had to continue complying with the injunction during that period.” Previously, in paragraph 47, the Court “finds it disconcerting that the authorities failed to clarify to the applicant his legal obligations for nearly six months...” In other words, the material question, as mentioned above, would have arisen only if the applicant had in fact complained, domestically and before this Court, concerning the double punishment allegedly imposed on him as a result of this officially induced mistake of law concerning his duty to comply with the injunction during the critical period.

I .

3 . The first issue here is whether there was a real or ideal concurrence of offences. The Lithuanian Supreme Court resolved the question correctly, a s cited in paragraph 30 in fine of the judgment: “[I]f the perpetrator forges the official document himself or herself and uses it as a means of deceit, such activity shall be qualified as the concurrence of the crimes under Articles 207 and 274 of the Criminal Code...” The Supreme Court was probably referring to the so-called real (material) concurrence of offences. The domestic resolution of this case thus hinged on the distinction between the real and the ideal concurrence of offences.

4 . We speak of the ideal concurrence of offences where the elements of the second offence, as legally formulated, completely overlap with the elements of the first offence. The elements of one offence are absorbed by the other offence. For example, in the offence of homicide, the elements of slight bodily injury progressing to serious bodily injury and ultimately to the death of the victim are absorbed in the crime of homicide. Another example of an ideal concurrence of offences is the famous American case ( Ashe v. Swenson , 397 U.S. 436, 1970) of somebody having, on the same occasion, in the same room, robbed several different poker players. The prosecution failed to obtain a conviction for the robbery of the first poker player. Subsequently, the prosecution attempted to indict for the robbery of the second poker player. This was duly defined as double jeopardy ( ne bis in idem ); the facts of the second robbery completely overlapped with the facts of the first robbery .

5 . However, as we shall see below, in all double jeopardy cases one has to be very careful when considering the “facts”. The rule of thumb in such cases is the question whether the proof of the second offence does or does not require proof of something else (a different element of the offence) when compared to the evidence required for the first offence. In our case, clearly, the conviction for forgery as per Article 207 of the Lithuanian Criminal Code required that the perpetrator forge the official document himself or herself, whereas the conviction for fraud as per Article 274 speaks only of the requisite deceit; it does not mention the personal counterfeiting of the document to be used for defrauding.

6 . For this reason, we have two different offences and therefore the real (material) concurrence of offences. Incidentally, the criminal law ’ s distinction between the ideal and the real (material) concurrence of offences is the substantive counterpart to the procedural banning of double jeopardy.

II .

7 . A more difficult problem relates to the criteria for double jeopardy ( ne bis in idem ) as postulated in the case of Sergey Zolotukhin v. Russia ([GC], no. 14939/03, ECHR 2009), in § 82 of that judgment).

The criteria are as follows. First , the applicant must be convicted or acquitted by a final decision of the domestic court; second, there must have been a duplication of proceedings for the same applicant; third, the proceedings in question must be criminal; and fourth , the proceedings in question must concern the “same offence” allegedly committed by the same applicant.

8 . We have no problem with the first three criteria. They derive directly from Article 4 § 1 of Protocol No. 7, which reads as follows: “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.”

However, Sergey Zolotukhin ’ s fourth criterion of “the same offence” flatly replicates the above language, referring to “an offence for which he has already been finally acquitted or convicted” –, except that neither of the two languages has the requisite advisory power.

At the end of paragraph 44 of the present judgment, the Court refers to the more specific aspect of Sergey Zolotukhin , § 82: “[T]he Court takes the view that Article 4 of Protocol No. 7 must be understood as prohibiting the prosecution or trial of a second “offence” in so far as it arises from identical facts or facts which are substantially the same .”

9 . It is impossible to answer the question of whether forgery (as per Article 207 of the Lithuanian Criminal Code) and fraud (as per Article 274 of the same Criminal Code) were prosecuted here from “identical facts of facts which are substantially the same”. Deceit is the constituting element of fraud; in turn, forging and using counterfeited documents is (in terms of intent and of criminal conduct) a constitutiv e element of deceit. Do the two forms of behaviour then refer to “substantially the same facts”? Obviously, the fourth criterion in Sergey Zolotukhin is of no help in answering this question!

III .

10 . In order to attempt to answer this question we must take a step back and examine the contradictory implications of the term “facts”.

Continental criminal law rests wholly on its principle of legality. It is spelled out in Article 7(1) of the Convention: no crime, no punishment without previous law ( nullum crimen, nulla poena sine lege praevia ). It is no accident that – as opposed to the numerous procedural safeguards in the Convention – substantive criminal law is covered by this single provision of Article 7.

This primary legal safeguard starts from the premise that substantive criminal law in its definitions of all offences enumerates exhaustively all of the potential major premises. The “facts of the case” in particular cases must correspond to one or more of these definitions if a particular defendant is to be convicted. This is a question of formal logic and the courts must reason out their decisions in terms of this logic if the case is to be sustained on appeal. (Obviously, this is not completely possible in jury trials; see Taxquet v. Belgium [GC], no. 926/05, ECHR 2010). Thus the whole safeguarding apparatus is in abstracto based on the notion that the norms of criminal law on the one hand, and the facts of particular cases on the other, are clearly separable.

11 . Every new pattern of facts in every new criminal case is subject to legal classification ( la qualification juridique ). Legal classification is usually anticipated by the public prosecutor, in the light of the facts as discovered and tentatively qualified by the police.

At this stage of criminal proceedings, therefore, the facts are already seen through the specific chosen legal prism, that is, their legal classification. In view of this qualification juridique certain facts become central and essential: they bring out the abstractly defined “elements of the crime”.

In turn, other facts become irrelevant and are ignored because they do not fit in with the definition of the offence. Also in concreto , the facts of the case are inseparable from the legal prism through which they are perceived.

IV .

12 . An antinomy is a situation in which two entities, here the norms and the facts, are simultaneously separate from one another — in addition to merging into one another. An antinomy is a paradox that cannot be resolved. If identified, it serves as a deconstruction of a particular (legal) premise. In our case, the facts are selectively perceived from the point of view of the norm (forgery, fraud) as if they were completely different from the norm. This is precisely the premise from which the fourth criterion in the Sergey Zolotukhin case is constructed –, the assumption being that these “facts” are different and separable from the norm (of substantive criminal law).

13 . However, such an assumption overlooks the above-mentioned selective apperception of the “facts”, which only come into legal being once, for example, the prosecutor has produced his legal classification. To put this in other terms, unless there is a preceding norm of criminal law there are no facts to speak of. Thomas Hobbes, for example, understood this when he wrote: “Civil laws ceasing, crimes also cease” [1] . For the purpose of criminal law, there are no “facts” unless they are seen through one of the major premises reposing in substantive criminal law. If the legal qualification of the “facts” is altered, different facts come into purview. Other facts evaporate. However, if the legal classification is further improved, they may come back into play as essential. Thus everything depends on the particular legal classification determining the selective apperception of the circumstances of the case.

14 . It has to be noted here that in Kantian terms there is an important difference between mere perception of the facts and the apperception . When we perceive the facts we see them with a blank mind, i.e., we do not superimpose any concept defining these facts. In turn, apperception presupposes a conceptual framework through which we “understand” the facts. To recapitulate, the conundrum is how to escape from this circular antinomy in which facts determine the choice of legal norm and the choice of legal norm in turn determines the selective apperception of the facts.

15 . Since (the legally relevant) facts do not exist without a preceding legal norm, it is impossible to maintain, as is the premise in Sergey Zolotukhin , that the facts are separable from the norm. The choice of the norm does depend on the facts, but it then predetermines their selective apperception to the point where certain facts become essential (the elements of the offence), whereas others disappear.

This refers to the analogous antinomy between the theory and the facts. [2] The theory and the facts are supposed to be separate and independent from one another. The perception of the facts leads to a new theory, a new apperception. This new theory will then lead to the perception of new facts of which we previously had no notion. In this way, old facts merge into a new theory and the new theory literally produces heretofore unknown facts. These facts are merely perceived (as not understood) until the discovery of a new theory, which enables them to be apperceived (understood).

V .

16 . How does this apply to the case at hand?

The applicant engaged in an intentional defrauding pursuit, in which the fabrication and the use of forged documents were, as part and parcel of the same dolus coloratus (specific intent) and its protracted conduct, to serve his unremitting deception. It was only after the two legal classifications, separating this continuing conduct into two separate offences, that the forgery of an official document and the fraudulent use of the same document became two separate offences.

Such was the consequence of the two different legal classifications, which divided the one single intentional criminal pursuit into two separate forms of behaviour. Under a different legal provision the applicant ’ s intent and conduct could be inversely perceived as a single line, either of a delictum continuatum or of a delictum continuum.

17 . In paragraph 44 of the judgment we flatly maintain that “the Court is convinced that the two crimes of which the applicant was convicted did not arise from identical facts or facts which were substantially the same; thus they did not constitute the same offence for the purposes of Article 4 of Protocol No. 7” (citing Sergey Zolotukhin , § 82). If the judgment is not in a position to explain why “the two crimes did not arise from identical facts or facts which were substantially the same” , this is in consequence of precisely the antinomy on which we have expounded so far.

18 . The formula “identical facts or facts which were substantially the same” refers to a series of behaviours of the applicant that was, by the said legal qualifications, artificially split in two. It is possible to imagine that the forging of the documents for the purpose of the fraud would have been an aggravated (qualified) version of simple fraud, defined as such in the Lithuanian Criminal Code.

VI .

19 . There is another problem never recognised as affecting the celebrated principle of legality. The choice of legal norm, it being the major premise in the criminal law ’ s syllogism, is not always inescapable. Other possible definitions of a particular offence may be available, but will not have been used for the purpose of prosecuting a particular defendant. There is no way of being absolutely certain that a particular legal classification is the only one possible. But even if this were to be the case, one must bear in mind that criminal law ’ s applicable major premise is always a combination of various other major premises in the criminal code.

20 . The criminal code is composed of its general part (containing the rules which apply to every offence) and of the special part (defining particular offences). The legal classification of a particular offence is always combined with at least one provision from the general part, that referring to the levels of liability: intent, recklessness, negligence, etc.

21 . In this sense the amalgamated major premise in a particular case is always a combination of at least two major premises. The matter first arose in the famous constitutional-law triangle Winship–Mullaney–Patterson of American cases: In re Winship , 397 U.S. 358 (1970); Mullaney v. Wilbur , 421 U.S. 684 (1975); Patterson v. New York , 432 U.S. 197 (1977).

T here, the issue was the burden of proof upon the prosecution, which was obliged to prove “every element of the offence”. The question arose as to what were “the elements of the offence”, where the defence of “extreme emotional disturbance” was to be found in the general part of the criminal code, and not in the definition of the particular offence.

22 . This brings up the combinations of different doctrines and rules in the general part of the criminal code, in conjunction with one or two or more offences in the special part of the criminal code. The upshot of this is the realisation that it is simplistic to assume that there is only one major premise governed by the principle of legality, i.e., only the specific one deriving from the definition of a particular offence. This is all the more true in cases where, apart from liability on the part of the defendant, the rules and the doctrines of attempt, insanity (as in Patterson v. New York (supra) ), duress, self-defence, etc. may also be part of the combined major premise under which the defendant may be eventually convicted.

23 . In the case at hand, this combination of major premises from the general part and the special part of the (Lithuanian) Criminal Code did not represent a problem. At the same time, however, the defendant ’ s behaviour fell under two different provisions in the special part of the Lithuanian Criminal Code, which engendered the problem we are dealing with here. In this case it seems to be clear that the applicant ’ s behaviour was exhaustively covered by Articles 207 and 274 of the Lithuanian Criminal Code, but it is not impossible to imagine that some other incrimination from the special part of the criminal code ( fraudulent breach of trust, abuse of official authority, abuse of office, trading in influence, etc.) could also be applicable.

24 . Since in the Continental legal systems the principle of legality is so central a safeguard for all defendants, it is good to remember that the burden of proof for the prosecution in view of the effective presumption of innocence may cover various combinations of different rules of substantive criminal law. Every code, at least since the French Civil Code ( Code Napoléon , 1804), works as an alphabet recombining the letters into words (here: offences). Compared to precedent-based law (the common law) this is a strategic simplification, but there are nonetheless literally billions of possible combinations –, if we only take into account the potential congregations of two, three, four or five rules and doctrines from the general and special parts of a criminal code. [3]

25 . Of course even this is an understatement. The articles in the criminal code, especially in its general part, are not singular provisions. These rules are further composed of different sub-rules. In the special part, too, one may find all kinds of mitigated and/or aggravated (qualified) versions of the same offence. In other words, it is not in principle ineluctable that a particular choice of legal classification is the only possible one.

VII .

26 . The complaint by the applicant in this case refers to double punishment. This derived from the grievance that “he had not been released from serving the consolidated sentence for the two convictions after he had allegedly completed serving the term of suspension of his sentence for one of those convictions” (see paragraph 45 of the judgment).

27 . The annulment of the suspension of the applicant ’ s primary sentence through the ordering of a consolidated sentence of imprisonment, as per our judgment, does not raise an issue under the Convention. Meanwhile, and crucially, the Lithuanian Supreme Court ’ s decision to delay the execution of the second judgment had omitted to advise the applicant that he did not need to continue complying with the injunction. Because of this, the local prison department, presumably likewise uninformed, continued to hold regular interviews with the applicant, i.e., he rep orted to their office every two months.

28 . As pointed out above, the applicant failed to complain to the domestic authorities and to the Court that he had been required to continue with his first punishment (that it, complying with the injunction) pending the decision concerning his second and subsequent punishment. This failure to raise a complaint effectively resolves the issue before this Court, but it does not answer the question as to whether we are speaking of the proscribed two punishments for the same offence, in violation of Article 4 § 1 of Protocol No. 7 to the European Convention on Human Rights.

29 . It has been established beyond doubt that the applicant was serving his suspended sentence (the injunction) in view of his preceding conviction for forgery. Indubitably, the conviction of 3 February 2006 was a criminal sentence of two years ’ imprisonment. That sentence was suspended for two years, in view of which an injunction was imposed, prohibiting him from leaving his home for more than seven days without the approval of the supervising institution and requiring him to report at regular intervals to the local prison department. The applicant, as pointed out above, complied impeccably.

30 . On 5 December 2006 the Supreme Court of Lithuania quashed the applicant ’ s acquittal for fraud and returned the case to the Court of Appeal. On 4 July 2007 the Court of Appeal again convicted the applicant of fraud. The Court of Appeal took into the account the first sentence for forgery, and produced a consolidated sentence for both cr imes (forgery and fraud) of two years and three months.

31 . This is the point in the procedure where the previous conditional sentence (injunction) was merged into the new consolidated sentence of two years and three months ’ imprisonment. However, the applicant submitted a cassation appeal to the Supreme Court. On 31 July 2007 the Supreme Court postponed execution of the above sentence while it examined the question on appeal. However, it is because the Supreme Court omitted to indicate whether the applicant should or should not continue complying with the injunction that the issue of double punishment for that particular period in time arose in the first place. In other words, the applicant would have been complying with the conditional sentence between 3 February 2006 and presumably 3 February 2008 since he was originally sentenced with an injunction for the period of two years.

32 . The Supreme Court judgment of 8 January 2008 was delivered just before the end of the original two-year sentence (the injunction). The applicant was therefore under the impression that he had “served his time” for forgery, which would make the imprisonment a double punishment for him inasmuch as the sentence imposed by the Supreme Court ’ s judgment of 8 January 2008 was “consolidated”, i.e., it took into account both the original forgery as well as the fraud. If the conviction and sentence for fraud had not been a “consolidated sentence” in this sense, there would be no merit to the applicant ’ s supposition that he was doubly punished for the crime of forgery.

33 . The applicant had already served 96 percent of the original sentence. After just one single month, he would have served 100 percent of that primary sentence. Thereafter the Supreme Court could have convicted the applicant separately, and only for fraud.

34 . The question is whether the Supreme Court did in fact take this one remaining month of the first sentence into account when pronouncing the “consolidated” sentence. Whether this was true or not ought to have been apparent from the reasoning of the Supreme Court ’ s final judgment of 8 January 2008. Does the reference to “consolidation” imply that the Supreme Court was aware of the minimal remainder of the first sentence to be served? There are doubts as to this question, given that the applicant had not previously been notified.

[1] Thomas Hobbes Leviathan , Chapter XXVII

[2] See Roberto Mangabeira Unger, Knowledge and Politics , Free Press, 1974, Chapter One, The Antinomy of Theory and Fact .

[3] In the travaux preparatoires of the French Civil Code of 1803, the Editors ( Portalis, Maleville, Bigot de Préameneu and Tronchet) specifically refer to this combinatorial idea .