DISSENTING OPINION OF JUDGE WOJTYCZEK

1. The instant case raises important issues u nder Article 4 of Protocol N o . 7. I have doubts about the approach adopted in the present case, particularly regarding the criteria applied in the reasoning for the purpose of assessing whether proceedings were conducted twice for the same offence .

I accept that the two sets of proceedings against the applicant were criminal in nature. I agree that the offence for which the applicant was prosecuted in the two sets of proceedings was the same and that the police imposed a sanction after the criminal judgment delivered by the competent D istrict C ourt became final. At the same time, I find it difficult to agree with the statement that “the applicant was not convicted twice for the same matter in two separate sets of proceedings” (paragraph 43 in fine ).

2. The ne bis in idem principle is a fundamental guarantee of justice in criminal law. The interpretation and proper application of this principle are issues of the utmost complexity. To my regret, I note en passant that the case-law of the Court pertaining to Article 4 of Protocol N o . 7 is neither consistent nor clear, and that many important legal questions arising from this provision have been lef t without satisfactory answers.

There is no doubt that the interpretatio n of Article 4 of Protocol N o . 7 must take into account the variety of legal traditions of the High Contracting Parties. Without entering into a detailed comparative law analysis, I would just like to point out that the ne bis in idem principle is understood in different ways in different national legal systems. This makes the interpretation of the provision in question particularly difficult.

The ne bis in idem principle was initially conceived to prevent multiple prosecutions and trials within the framework of the same body of procedural rules (i.e. criminal procedure). This preoccupation appears clearly in the wo rding of Article 4 of Protocol N o . 7 (especially in the second paragraph). However, the most difficult problems arise where criminal sanctions in the strict sense are cumulated with other types of sanctions, such as administrative sanctions or sanctions for petty offences. In most European States, the law provides for situations in which different sanctions for the same illegal act may be imposed in different types of proceedings. It is not uncommon that competence for imposing sanctions for the same illegal acts is divided between different organs of the State applying different substantive and procedural rules. There may be justified reasons for adopting such solutions which are not necessarily incompatible w ith Article 4 of Protocol N o . 7.

3. The interpretation of Article 4 of Protocol N o . 7 must also take into consideration the functions and goals of the ne bis in idem principle, which are not mentioned in the explanatory report to the P rotocol .

The principle under consideration protects the stability ( res judicata ) of criminal judgments and more broadly the authority of the courts. It enhances legal certainty by preventing prolonged stress and uncertainty for the accused as regards the outcome of possible subsequent repressive proceedings (compare, for instance, G. Conaway, “ Ne bis in idem in International Law”, International Criminal Law Review , vol. 3 (2003) p. 217-244, at 222-223). It protects against the misuse of criminal proceedings for the purpose of harassment. The imposition of a criminal sanction by a single judicial decision may serve the justice and rationality of criminal policies: all the relevant factual circumstances are comprehensively assessed by the same judges, who also consider all the applicable sanctions . There is no risk of two or more bodies making conflicting choices as regards the punishment of the same offense.

4. Turning to the circumstances of the instant case, I note the applicant was convicted and sentenced by the D istrict C ourt , inter alia , for operating a vehicle without a licence. A joint punishment of 75 day-fines was imposed for the five charges. Later, in subsequent proceedings the police imposed a further sanction (a driving ban) for operating a veh icle without a driving licence.

Different criteria may be used to establish whether specific issues of criminal liability are identical for the purpose of applying the ne bis in idem principle. In some judgments, the Court has looked at the legal characterisation of the facts. In others the Court has referred to the facts themselves. Whichever criterion we apply in the instant case, the outcome would be the same as the two sets of proceedings involved the same facts and in both proceedings exactly the same legal characterisation of the facts was adopted (opera ting the car without a license).

I further note that the applicant was punished twice in the two sets of proceedings. Moreover, the police and the court imposed the same type of punishment (a driving ban), although they imposed it for different offenses. This is not a situation of different State bodies imposing different types of sanctions in different proceedings .

5. The majority refer to the cases of R . T . v. Switzerland and Nil s son v. Sweden , in which the Court attempted to establish criteria for assessing whether it is acceptable to impose sanctions for the same acts in two sets of proceedings. In this case-law the Court verified whether there was a “sufficiently close connection” between the different proceedings “in substance and in time”. It is obvious that proximity in time is an important factor to take into account, whereas the criterion of “close connection in substance” between different proceedings seems obscure and therefore inoperative .

In my view, when applying the ne bis in idem principle it is necessary to examine, among other things, the specific purposes of each procedure, the nature and severity of the applicable sanctions, the practical impact of their accumulation, the margin of appreciation left to S tate bodies when imposing these sanctions, as well as the order of the different procedures, their length and the detailed rules concerning their articulation and interactions. Furthermore, it may be necessary to assess whether the specific purposes of a procedure require special knowledge on the part of the adjudicating body. At any event, dividing the imposition of sanctions for the same acts between different S tate bodies requires appropriate justification. Dividing the imposition of sanctions may be justified in particular where the different procedures do not “overlap” in their aims and effects but are established to achieve complementary aims which would be more difficult to achieve in a unified p rocedure before the same court.

I note that in the present case the duplication of proceedings cannot be justified by the different nature of the sanctions imposed in the second set of proceedings: the same type of sanction (a driving ban) was imposed in the two sets of proceedings. Moreover, whereas I fully respect the freedom of the S tates to choose and shape their substantive and procedural criminal law, I would observe that the concern to secure just punishment for an illegal act is an argument against dividing the imposition of the same type of sanctions between different State bodies and proceedings. I further note that the police have some discretion in imposing sanctions under s ection 46 §§ 1 (c) and 3 of the Driving Licence Act of the Province of Åland : they may impose a driving ban of up to 6 months. If the driver has a valid driving licence, the police – instead of imposing a driving ban – may order the person concerned to retake the driving test. Although the punishment may appear relatively mild and a margin of discretion is needed to achieve the aims of the procedure, for some time the applicant nonetheless suffered additional uncertainty about the final outcome of the different proceedings. I also regret that the majority decided not to consider in greater detail the purposes of the two procedures and the rules relating to their articulation and interaction.

Taking into account the foregoing arguments, I conclude that the different proceedings against the applicant cannot be considered as mere stages in one single set of proceedings for the purpose of A rticle 4 of Protocol N o . 7. The applicant was punished twice for the same act (namely operating a car without a driving license), in violation of the prohibition enshrined in this provision.