CONCURRING OPINION OF JUDGE SICILIANOS

(Translation)

The present judgment refers, in particular, to the ne bis in idem principle enshrined in Article 4 of Protocol No. 7 to the Convention, and finds a violation of that provision. I am in full agreement with the operative provisions of the judgment and with most of the reasoning. However, there is one paragraph – which, moreover, serves little purpose in my view in terms of the reasoning of the judgment – which leaves me perplexed. Paragraph 29 states as follows: “The Court reiterates that Article 4 of Protocol No. 7 does not necessarily extend to all proceedings instituted in respect of the same offence (see Falkner v. Austria ( dec .), no. 6072/02, 30 September 2004). Its object and purpose imply that, in the absence of any damage proved by the applicant, only new proceedings brought in the knowledge that the defendant has already been tried in the previous proceedings would violate this provision”. It is true that this passage is not new but has featured in previous judgments and decisions (see, in particular, Zigarella v. Italy ( d e c .), no. 48154/99, 3 O ctob er 2002, and Maresti v. Croati a , no. 55759/07 25 , 25 June 2009, § 66). Nevertheless, the Grand Chamber judgment in Sergey Zolotukhin v. Russia ( no. 14939/03 , 10 February 2009 ), which is now seen as the locus classicus as regards interpretation of the ne bis in idem principle, contains no assertion of this kind but affords much greater protection to the individual .

The above-mentioned Grand Chamber judgment was, quite rightly, hailed by legal commentators (see, for instance, H. Mock, ‘ Ne bis in idem : Strasbourg tranche en faveur de l ’ identité des faits . Cour européenne des droits de l ’ homme (Grande Chambre ), Zolotoukhine c. Russie , 10 février 2009 ’ , in the Revue trimestrielle des droits de l ’ homme , 2009 , pp. 867-881) as bringing to an end years of uncertainty as to the precise scope and content of the ne bis in idem principle, from which no derogation is permitted . Indeed, the third paragraph of Article 4 of Protocol No. 7 to the Convention states as follows: “No derogation from this Article shall be made under Article 15 of the Convention”. In other words, in view of its crucial importance in a State governed by the rule of law, the ne bis in idem principle features among the select group of norms which are non ‑ derogable and even form an imperative part of the normative structure of the Convention and the Protocols thereto.

It is true that the second paragraph of Article 4 introduces two limitations to the ne bis in idem principle. A further limitation arises from the first paragraph, concerning the territorial scope of the principle, which applies only to the courts of the State concerned and is not binding on those of another State. Nevertheless, all the limitations in question form part of the rule itself as they are expressly articulated by it. As defined in the first and second paragraphs of Article 4 of Protocol No. 7, the ne bis in idem principle may not be derogated from in any circumstances, not even in times of crisis. Any other exception, limitation, restriction or derogation, irrespective of its nature, which is not provided for by Article 4 itself is incompatible with the imperative nature of the principle recognised by that provision.

However, paragraph 29 of this judgment appears to view the scope of the ne bis in idem principle in strangely relative terms. The passage in question accepts that the principle is not violated even if a new set of criminal proceedings is brought, provided that two apparently cumulative conditions are met: (1) the new set of proceedings does not cause any damage to the applicant and (2) the competent authorities were not aware that the person concerned had been finally acquitted or convicted. Quite apart from the fact that no such exception can be derived from the letter or even the spirit of Article 4 of Protocol No. 7, the conditions outlined above create significant potential for abuse which is liable to undermine the ne bis in idem principle.

It is not clear how bringing a new set of criminal proceedings could be said not to cause damage . In my view the setting in motion of such proceedings, in whatever manner, would ipso facto occasion non-pecuniary damage to the person finally acquitted or convicted of the same offence, to say nothing of other negative consequences for him or her. As observed by the Grand Chamber, “ the Court reiterates that Article 4 of Protocol No. 7 is not confined to the right not to be punished twice but extends to the right not to be prosecuted or tried twice (see Franz Fischer [ v. Austria , no. 37950/97, 29 May 2001 ] § 29 ). Were this not the case, it would not have been necessary to add the word ‘ punished ’ to the word ‘ tried ’ since this would be mere duplication. Article 4 of Protocol No. 7 applies even where the individual has merely been prosecuted in proceedings that have not resulted in a conviction. The Court reiterates that Article 4 of Protocol No. 7 contains three distinct guarantees and provides that no one shall be ( i ) liable to be tried, (ii) tried or (iii) punished for the same offence (see Nikitin , cited above, § 36) ” ( Sergey Zolotukhin , cited above, § 110).

Furthermore, it would be equally dangerous to introduce here the notion of the good faith of the competent authorities, as the second condition laid down by paragraph 29 of the judgment, referred to above, appears to do. It seems obvious that each time new proceedings were brought for the same offence, the competent authorities could claim to have had no knowledge and to have therefore acted in good faith, with all the practical implications that this entails, not least as regards the burden of proof and the degree of compensation afforded to the person concerned. In Zolotukhin , the Grand Chamber was much stricter on this point, stating as follows: “ The Court therefore accepts that in cases where the domestic authorities institute two sets of proceedings but later acknowledge a violation of the non bis in idem principle and offer appropriate redress by way, for instance, of terminating or annulling the second set of proceedings and effacing its effects, the Court may regard the applicant as having lost his status as a ‘ victim ’ . Were it otherwise it would be impossible for the national authorities to remedy alleged violations of Article 4 of Protocol No. 7 at the domestic level and the concept of subsidiarity would lose much of its usefulness ” (see Sergey Zolotukhin , cited above, § 115) . In other words, the Grand Chamber does not simply accept that the national authorities lacked knowledge, but lays down very stringent and objectively measurable requirements – in the form of acknowledging the violation and affording redress for it, more specifically by terminating or annulling the second set of proceedings and effacing its effects – in order for the applicant no longer to be considered as a victim. Hence, as I see it, paragraph 29 of the present judgment departs significantly from the interpretation of the ne bis in idem principle derived in particular from the passages of the Grand Chamber judgment in Sergey Zolotukhin cited above.

Leaving aside the fact that the paragraph of the present judgment cited above is incompatible, in my view, with Article 4 of Protocol No. 7 as interpreted and applied by the Grand Chamber in Sergey Zolotukhin , it runs counter to the international trend as regards regulation of the ne bis in idem principle. We are aware that, as far back as 1990, Article 54 of the Convention implementing the Schengen Agreement extended the territorial scope of the principle in question to all the Contracting Parties. The Charter of Fundamental Rights of the European Union echoed this idea by extending the scope of the principle to all 27 Member States of the Union . Article 50 of the Charter states as follows: “ No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the la w” (my italics). It is true that the territorial scope of the ne bis in idem principle is a different issue from that under consideration here. Nevertheless, the gradual broadening of the scope of the principle represents a move towards strengthening and consolidating it at international level, whereas paragraph 29 of the present judgment tends in the direction of a relative approach to, and hence a weakening of, that principle.