EHRM, 15-11-2016, nr. 24130/11, nr. 29758/11

The applicants argued that, in breach of Article 4 of Protocol No. 7, they had been subjected to double jeopardy on account of the same matter, namely an offence under section 12-1(1) of the Tax Assessment Act, having been first accused and indicted by the prosecution services and having had tax penalties imposed on them by the tax authorities, which they had both accepted and paid, before being criminally convicted. Referring to the chronology of the proceedings complained of, the first applicant added that he had been prosecuted twice over a long period, which had exposed him to an unreasonably heavy burden, both physically and psychologically, leading to a heart attack and hospitalisation.

The third-party interventions were primarily centred on two points; firstly the interpretation of the adjective ‘criminal' in Article 4 of Protocol No. 7 and the relationship between this provision and both Article 6 (criminal head) and Article 7 of the Convention; and secondly the extent to which parallel proceedings were permissible under the Protocol (dealt with under sub-headings (a) and (b) below).

The Court will first review its existing case-law relevant for the interpretation and application of the ne bis in idem rule laid down in Article 4 of Protocol No. 7 (sub-titles ‘(a)’ to ‘(c)’ below). In the light of that review, it will seek to draw such conclusions, derive such principles and add such clarifications as are necessary for considering the present case (sub-title ‘(d)’ below). Finally, it will apply the ne bis in idem rule, as so interpreted by it, to the facts complained of by the applicants (sub-title ‘(e)’ below).

The maxim ne bis in idem was respected during the Roman Republic and the Principate, although some exceptions were mentioned of new proceedings for the same crime against defendants who had already been acquitted6.. Initially, during the period of the legis actiones, the maxim meant that bis de eadem res ne sic actio, that is, the launching of a certain action had the consequence of extinguishing the respective right, which hindered the launching of new actiones, even when no decision on the merits had been delivered. To limit the impact of this maxim, the exceptio rei judicatae was introduced, which was dependent on a previous decision on the merits. The exceptio hindered bis in eadem, regardless of the fact that the previous judgment had been upon an acquittal or a conviction. In both cases, the autoritas rerum judicatarum consisted in the extinguishing effect of the criminal action. The scope of the maxim was limited by the object of the previous criminal action: tantum consumptum, quantum judicatum, tantum judicatum, quantum litigatum. The eadem quaestio was defined by the same fact, idem factum7..

In Justinian law, the presumption of the truthfulness of the court's decision became the new rationale of the maxim. Ulpiano was the first to formulate the maxim res iudicata pro veritate accipitur (D. 50, 17, 207). Together with the emergence of the inquisitorial process and of syllogistic legal reasoning, the rationale of the imperial codification — the court's authority and the infallibility of the court's findings — impacted negatively on the individual dimension of the maxim. In the logic of the new inquisitorial process, the once exceptional cases of reopening of criminal proceedings for the same facts in Roman law became mere examples of the maxim absolutio pro nunc, rebus sic stantibus, which in fact acknowledged the transitory nature of the criminal judgment in the pursuit of truthfulness. For example, in France, according to the plus amplement informé rule, in the absence of positive evidence of the defendant's innocence, the acquittal had a transitory nature, which could be reversed at any moment by new incriminatory evidence. The same occurred in Italy, where the defendant was acquitted from the observation of the court (At in casu quo reus absoluendus est ab observatione iudici), with the caveat ‘while things stand as they are’ (stantibus rebus prout stant), the proceedings being reopened whenever new evidence appeared (supervenient nova indicia).

The Enlightenment brought a revival of the individual dimension of ne bis in eadem, which was incorporated into Article 8 of Chapter V of Title II of the 1791 French Constitution (‘tout homme acquité par un jury legal ne peut plus être repris ni accusé à raison du même fait’) and Articles 246 and 360 of the 1808 Code d'Instruction Criminelle. The practical consequence of these provisions was the abolition of the infamous plus amplement informé rule. On the other side of the Atlantic Ocean, in that same year of 1791, the Fifth Amendment to the United States Constitution introduced a prohibition of double jeopardy in criminal procedure (‘nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb’), which encompasses the prohibition of subsequent prosecution after acquittal, subsequent prosecution after conviction and multiple punishments for the same offence8.. The Amendment was designed as much to prevent the offender from being punished twice as from being tried twice for the same offence. When the conviction has been set aside for an error, the punishment already exacted for the offence must be fully ‘credited’ in imposing sentence upon a new conviction for the same offence9..

As the established and virtually universal practice of States shows, it is a principle of customary international law that the State's claim to prosecute, adjudicate and punish a criminal act is exhausted (Strafklageverbrauch) once the accused person has been acquitted or has been found guilty of the imputed offence by a final decision taken in criminal proceedings (the exhaustion-of-procedure principle or Erledigungsprinzip)10.. This principle is independent of any condition regarding sentencing or enforcement of the sentence. Where this principle does not apply, as in the case of the prohibition of double punishment, without barring a second prosecution and trial, any previous penalty must be taken into account when imposing a subsequent punishment for the same fact (the accounting principle or Anrechnungprinzip).

The exhaustion-of-procedure principle (Erledigungsprinzip) is affirmed by Article 14 § 7 of the 1966 International Covenant on Civil and Political Rights (ICCPR — ‘tried or punished’)11., Article 8 § 4 of the 1969 American Convention on Human Rights (‘new trial’), Article 75 § 4 (h) of the 1977 Additional Protocol I to the 1949 Geneva Conventions (‘prosecuted or punished’), Article 10 § 1 of the 1993 Statute of the International Criminal Tribunal for the former Yugoslavia (‘tried’)12., Article 9 § 1 of the 1994 Statute of the International Criminal Tribunal for Rwanda (‘tried’)13., Article 20 § 2 of the 1998 Statute of the International Criminal Court (‘convicted or acquitted’), Article 9 § 1 of the 2002 Statute of the Special Court for Sierra Leone (‘tried’)14. and Article 19 § 1 of the 2004 Arab Charter on Human Rights (‘tried’). Article 86 of the 1949 Third Geneva Convention (‘punished’) and Article 117 § 3 of the 1949 Fourth Geneva Convention (‘punished’) do not go that far, since they only prohibit a new punishment, but make no reference to the accounting principle.

Within the Council of Europe, the principle of ne bis in idem initially came into play as a mandatory or optional bar to cooperation in criminal matters between States. Examples of this limited approach are Article 9 of the 1957 European Convention on Extradition15., Article 9 of the 1962 European Convention on the Punishment of Road Traffic Offences16., Article 2 of the 1975 Additional Protocol to the European Convention on Extradition17., Article 8 of the 1983 Convention on the Transfer of Sentenced Persons18., Article 2 § 4 of the 1995 Agreement on Illicit Traffic by Sea, implementing Article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances19. and Article 28 § 1 (f) of the 2005 Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism20..

More recently, the exhaustion-of-procedure principle (Erledigungsprinzip) was affirmed by Article 53 of the 1970 European Convention on the International Validity of Criminal Judgments (‘neither be prosecuted nor sentenced nor subjected to enforcement of a sanction’)21., Article 35 of the 1972 European Convention on the Transfer of Proceedings in Criminal Matters (‘neither be prosecuted nor sentenced nor subjected to enforcement of a sanction’)22. and Article 17 of the 1985 European Convention on Offences relating to Cultural Property (‘neither be prosecuted nor sentenced nor subjected to enforcement of a sanction’)23.. In these cases, when ne bis in idem does not apply, the accounting principle must be safeguarded as a last-resort guarantee. Article 25 of the 2005 Council of Europe Convention on Action against Trafficking in Human Beings provides solely for the accounting principle24..

The Council of Europe Parliamentary Assembly Recommendation 791 (1976) on the protection of human rights in Europe urged the Committee of Ministers to ‘endeavour to insert as many as possible of the substantive provisions of the Covenant [on Civil and Political Rights] in the Convention’. Article 4 of Protocol No. 725. was thus approved in 1984 under the direct influence of Article 17 § 7 of the ICCPR. The major novelty was the non-derogable nature of the European principle.

Within the European Union, the exhaustion-of-procedure principle (Erledigungsprinzip) was affirmed by Article 1 of the 1987 Convention between the Member States of the European Communities on Double Jeopardy (‘not be prosecuted’)26., Article 54 of the 1990 Convention implementing the Schengen Agreement (CISA — ‘not be prosecuted’)27., Article 7 of the 1995 Convention on the protection of the European Communities' financial interests (‘not be prosecuted’)28., Article 10 of the 1997 Convention on the Fight against Corruption involving Officials of the European Communities or Officials of the Member States of the European Union (‘not be prosecuted’)29., Article 2 § 1 of the European Central Bank Regulation no. 2157/1999 on the powers of the European Central Bank to impose sanctions (‘No more than one infringement procedure shall be initiated’), Article 50 of the 2000 Charter of Fundamental Rights of the European Union (‘the Charter’ — ‘tried or punished’) and the 2003 Initiative of the Hellenic Republic with a view to adopting the Council Framework Decision concerning the application of the ‘ne bis in idem’ principle (‘cannot be prosecuted for the same acts’)30..

The Charter radically changed the legal obligations of those member States of the European Union to which it is applicable. Since the right not to be tried or punished twice in criminal proceedings for the same offence is set out in Article 54 of the CISA and in Article 50 of the Charter, Article 54 must be interpreted in the light of Article 5031.. In the light of Article 52 § 3 of the Charter, when implementing Charter rights and freedoms which correspond to rights and freedoms guaranteed by the European Convention on Human Rights (‘the Convention’) and the Protocols thereto, member States of the European Union are bound by the meaning and scope of those rights and freedoms laid down by the Convention and Protocols, as interpreted by the Court32., even when they have not ratified these Protocols. This is also the case for Article 50 of the Charter and consequently Article 54 of the CISA, which evidently must be interpreted and applied in the light of the Court's case-law on Article 4 of Protocol No. 7, even in the case of those European Union member States which have not ratified this Protocol.

Furthermore, ne bis in idem was inserted as a bar to cooperation in criminal matters between States in various instruments, such as Article 3 § 2 of the 2002 Framework Decision on the European Arrest Warrant33., Article 7 § 1 (c) of the 2003 Framework Decision on the execution in the European Union of orders freezing property or evidence34., Article 8 § 2 (b) of the 2006 Framework Decision on the application of the principle of mutual recognition to confiscation orders35., Article 11 § 1 (c) of the 2008 Framework Decision on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions36., Article 13 § 1 (a) of the 2008 Framework Decision on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters37., Article 15 § 1 (c) of the 2009 Framework Decision on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention38., and Article 1 § 2 (a) of the 2009 Framework Decision on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings39..

Finally, Article 6 of Regulation no. 2988/95 on the protection of the European Communities' financial interests sets out the principle le pénal tient l'administratif, coupled with the accounting principle.

In the judicial arena, the Court of Justice of the European Union held, in Walt Wilhelm and others v. Bundeskartellamt, that concurrent sanctions could be imposed in two parallel sets of proceedings pursuing different ends. In competition law, the possibility that one set of facts could be submitted to two parallel procedures, one at Community level and the other at national level, followed from the special system of the sharing of jurisdiction between the Community and the Member States with regard to cartels. If, however, the possibility of two procedures being conducted separately were to lead to the imposition of consecutive sanctions, a general requirement of natural justice would demand that any previous punitive decision must be taken into account in determining any sanction which is to be imposed40..

Later on, the Court of Justice further developed its case-law within the ambit of the third pillar on bis (Gözütok and Brügge,41.Miraglia42., Van Straaten43., Turanský44., M.45., Kussowski46.), on ‘idem’ (Van Esbroeck47., Van Straaten48., Gasparini49., Kretzinger50., Kraaijenbrink51. and Gasparini52.) and on the enforcement clause (Klaus Bourquain53., Kretzinger54. and Spasic55.).

In the tax law domain, the landmark judgment was Hans Åkeberg Fransson, which reached the following conclusion: ‘It is only if the tax penalty is criminal in nature for the purposes of Article 50 of the Charter and has become final that that provision precludes criminal proceedings in respect of the same acts from being brought against the same person.’56. By refusing the Advocate General's proposal based on the accounting principle57., the Luxembourg Court decided, in a remarkable move towards convergence with the Strasbourg Court, that a combination of tax penalties with a criminal nature according to the Engel criteria and criminal penalties would constitute an infringement of Article 50 of the Charter58..

In sum, the copious occurrence of the ne bis in idem principle in both international and domestic law and case-law testifies to the recognition of a principle of customary international law59.. The exhaustion-of-procedure principle (Erledigungsprinzip) is largely predominant in international law, both at the universal and the European levels, but the accounting principle also finds some recognition, in a narrower form within the Council of Europe (deduction of prison sentences) and a broader form within the European Union (deduction of prison sentences and taking into account of sanctions not entailing deprivation of liberty).

Decriminalisation has been a most welcome trend of criminal law in Europe since the 1960s60.. Administrative offences are a rational deflative instrument of criminal policy. This trend is frequently characterised by the transfer of criminal offences with a lesser degree of social offensiveness, such as road traffic offences, to the field of administrative law, where the substantive and procedural guarantees are not on a par with those of classic criminal law and criminal procedure. Administrative offences are frequently couched in broad and open-ended terms and administrative fines (Geldbusse) are the preferred form of punishment. Imprisonment is not an alternative (Ersatzfreiheitsstrafe) to a fine as is the case in criminal law, and no coercive imprisonment (Erzwingungshaft) can be ordered unless the person concerned has failed to pay the sum due without having established his or her inability to pay. Administrative penalties are not entered in the national criminal record but solely, in certain circumstances, on administrative registers for specific sectors, such as the register of road traffic offences. Normally, administrative offences are processed by means of a simplified procedure of prosecution and punishment conducted before administrative authorities, save in the event of a subsequent appeal to a court. In many cases, the prosecution of administrative offences falls within the discretionary power of the competent administrative authorities. General laws on criminal procedure are in principle applicable only by analogy. Shorter limitation periods apply to administrative offences than to criminal offences.

The blurring of the dividing line between criminal law and administrative law has its own risks. Forms of conduct with a high degree of social offensiveness have also become the subject of administrative law, especially when they involve mass processing of data, such as tax law, or highly qualified expertise, such as competition law61. and securities and stock-exchange law62..

It has been the long-standing case-law of the Court that administrative offences also come under its scrutiny, as far as Article 6 guarantees are concerned. On the basis of the Engel criteria63., the Court has time and again reaffirmed that conduct punishable by administrative penalties must benefit from the procedural guarantees of Article 6 regardless of the personal or collective nature of the legal interests protected by the norm that has been breached64., the relative lack of seriousness of the penalty65. and the fact that the penalty is hardly likely to harm the reputation of the offender66.. Otherwise such deprivation of procedural guarantees would contradict the purpose of Article 667..

In Öztürk68. the Court used three crucial arguments to swim against the tide of decriminalisation and support the position that the administrative offence at stake, a road traffic offence, was ‘criminal’ for the purposes of Article 6: the ordinary meaning of the terms, the punishability of the offending conduct by criminal law in the ‘vast majority of the Contracting States’ and the general scope of the norm that was breached — a provision of the Road Traffic Act69.. On closer inspection, none of these arguments is convincing. It is hard to establish the dividing line between administrative and criminal offences on the basis of the ‘ordinary meaning of terms’, whatever this may mean for the Court. Furthermore, while it is true that a European consensus is certainly a decisive criterion for the criminalisation of conduct with a high degree of social offensiveness, it is hard to understand why the Court should argue, on the basis of a European consensus, against the decriminalisation of petty offences, a trend which reflects a concern to benefit not only the individual, who would no longer be answerable in criminal terms for his or her conduct and could even avoid court proceedings, but also to ensure the effective functioning of the courts, which would henceforth be relieved in principle of the task of dealing with the great majority of such offences. Above all, the Court errs in equating criminal offences with norms of general personal scope. Quite surprisingly, it seems to ignore the long-standing European tradition of criminal offences with a limited personal scope, namely norms applicable to certain categories of citizens distinguishable by personal or professional features (Sonderdelikte or Pflichtendelikte)70.. Therefore, criminal offences and norms of limited personal scope of applicability are not mutually exclusive.

While decriminalisation is not unproblematic in terms of the guarantees in Articles 6 and 7 of the Convention and Article 4 of Protocol No. 7 when it relates to petty administrative penalties that punish conduct with a lesser degree of social offensiveness71., it undoubtedly raises a serious issue under those Articles when it deals with conduct with a higher degree of social offensiveness that has been downgraded to the sphere of administrative law, for policy purposes. This is all the more so when administrative offences, including those committed negligently, are punishable by astronomical, sometimes even unlimited, financial penalties, fines or surcharges, frequently coupled with the suspension, restriction or even withdrawal of certain rights, such professional rights. Special leniency regimes are available for whistleblowers and others who collaborate with the judicial authorities. Some administrative offences even carry a more severe penalty in the event of recidivism. In addition, administrative proceedings may include such intrusive investigatory measures as interception of communications and house searches, which may restrict the suspect's privacy just as in the most serious criminal proceedings.

In fact, this droit pénal à deux vitesses hides a net-widening repressive policy, which aims to punish more expediently and more severely, with lesser substantive and procedural safeguards. In this new Leviathan-like context, administrative-law offences are nothing but pure mislabelling of a hard-core punitive strategy and administrative law becomes a shortcut to circumvent the ordinary guarantees of criminal law and criminal procedure72..

The Convention is not indifferent to this criminal policy. On the contrary, it does not leave human rights issues of this magnitude to each State's discretion. No margin of appreciation is accorded to States by Article 7 of the Convention and Article 4 of Protocol No. 7, which are non-derogable provisions. The definition of the confines of criminal law and the application of the principles of legality and ne bis in idem are not dependent on the particularities of each domestic legal system. On the contrary, they are subject to strict European supervision performed by the Court, as will be shown below.

Like the wording of Articles 6 and 7 of the Convention, the notion of ‘criminal proceedings’ in the text of Article 4 of Protocol No. 7 must be interpreted in an autonomous way. Furthermore, as a matter of principle, the Convention and its Protocols must be read as a whole73.. Hence, Article 4 of Protocol No. 7 must be interpreted in the light of the general principles concerning the corresponding words ‘criminal charge’ and ‘penalty’ in Articles 6 and 7 of the Convention respectively74.. Furthermore, the legal characterisation of the procedure under national law cannot be the sole criterion of relevance for the applicability of the ne bis in idem principle under Article 4 of Protocol No. 7. Otherwise, the application of this provision would be left to the discretion of the Contracting States to a degree that might lead to results incompatible with the object and purpose of the Convention. Precisely in order to avoid this discretion, there may be cases where neither a final acquittal75. nor a final conviction76. is capable of triggering the ne bis in idem effect.

In the present case, the first set of proceedings concerned the imposition of tax penalties. The Court has taken a clear stand on the criminal nature of tax penalties, in the context of Article 6 of the Convention. In Bendenoun77., which concerned the imposition of tax penalties for tax evasion, the Court did not refer expressly to the Engel criteria and listed four aspects as being relevant to the applicability of Article 6 in that case: that the law setting out the penalties covered all citizens in their capacity as taxpayers; that the surcharge in question was not intended as pecuniary compensation for damage but essentially as a punishment to deter reoffending; that it was imposed under a general rule whose purpose was both deterrent and punitive; and that the surcharge was substantial. The Court considered, however, that Contracting States must be free to empower tax authorities to impose sanctions such as tax surcharges even if they involved large amounts. Such a system was not incompatible with Article 6 § 1 so long as the taxpayer could bring any such decision affecting him or her before a judicial body with full jurisdiction, including the power to quash in all respects, on questions of fact and law, the decision challenged78..

In Janosevic79. and Västberga Taxi Aktiebolag and Vulic80., the Court made no reference to Bendenoun or the particular approach pursued in that case, but proceeded squarely on the basis of the Engel criteria81.. After confirming that the administrative proceedings had determined a ‘criminal charge’ against the applicant, the Court found that the judicial proceedings in the cases before it had been conducted by courts that afforded the safeguards required by Article 6 § 1, since the administrative courts had jurisdiction to examine all aspects of the matters before them. Their examination was not restricted to points of law but could also extend to factual issues, including the assessment of evidence. If they disagreed with the findings of the tax authority, they had the power to quash the decisions appealed against. The Court added that the starting-point for the tax authorities and courts must be that inaccuracies found in a tax assessment were due to an inexcusable act attributable to the taxpayer and that it was not manifestly unreasonable to impose a tax surcharge as a penalty for that act. The tax authorities and courts had to consider whether there were grounds for remission even if the taxpayer had not made any claim to that effect. However, as the duty to consider whether there were grounds for remission only arose in so far as the facts of the case warranted it, the burden of proving that there was a reason to remit a surcharge was, in effect, on the taxpayer. The Court concluded that a tax system operating with such a presumption, which it was up to the taxpayer to rebut, was compatible with Article 6 § 2 of the Convention.

In Jussila82. the Court confirmed the approach taken in Janosevic and emphasised that ‘[n]o established or authoritative basis has therefore emerged in the case-law for holding that the minor nature of the penalty, in taxation proceedings or otherwise, may be decisive in removing an offence, otherwise criminal by nature, from the scope of Article 6.’83. Moreover, in a clear signal of its intention not to deprive taxpayers of their fundamental safeguards in dealings with the State, the Court added that ‘[w]hile there is no doubt as to the importance of tax to the effective functioning of the State, the Court is not convinced that removing procedural safeguards in the imposition of punitive penalties in that sphere is necessary to maintain the efficacy of the fiscal system or indeed can be regarded as consonant with the spirit and purpose of the Convention.’84. In so doing, the Court ‘to a certain extent’85. abandoned the rationale of Ferrazzini86., since it admitted that matters of pure tax assessment did not fall outside the Convention's material scope. Ratione materiae, issues relating to tax penalties may involve the Court in an evaluation of the States' sovereign power of tax assessment. The neutralisation of the public power prerogative in Jussila led the Court to an apparent reframing of the specificity of tax obligations in the context of European human rights law.

Even where the tax surcharges were not classified in national law as criminal, that fact alone was not decisive for the Court. The fact that tax surcharges were imposed by legal provisions applicable to taxpayers generally, with a deterrent purpose, was considered far more relevant. As a matter of principle, tax surcharges were not intended solely as pecuniary compensation for certain damage caused to the State, but as a form of punishment of offenders and a means of deterring recidivism and potential new offenders. In the eyes of the Court, tax surcharges were thus imposed by a rule, the purpose of which was simultaneously deterrent and punitive, even where a 10% tax surcharge had been imposed, with an overall maximum possible surcharge of 20%87.. For the Court, the punitive nature of tax surcharges trumped the de minimis consideration of Bendenoun. Consequently, proceedings involving tax surcharges were also found to be ‘criminal proceedings’ for the purpose of Article 6 of the Convention.

Had the Court stopped here, Jussila would have been a simple extension of Öztürk to the field of tax penalties. But the Court did not stop here. It went on to note that it was ‘self-evident that there are criminal cases which do not carry any significant degree of stigma’. Consequently, in the Court's judgment, the criminal-head guarantees did not necessarily apply with their full stringency to criminal charges with no significant degree of stigma.88. By applying Article 6 in a differentiated manner depending on the nature of the issue and the degree of stigma that certain criminal charges carried, the Court distinguished between disposable and non-disposable Convention procedural guarantees, the right of the defendant to a public hearing being one of the former guarantees. In so far as they did not carry any significant degree of stigma, administrative offences could differ from the hard core of criminal law, and therefore the criminal-head guarantees of Article 6 might not apply fully to them. A second-class type of criminal offence, benefiting from only some of the Article 6 guarantees, came into existence in Jussila.

Unfortunately, the Court has not made any effort, either in Jussila or subsequently, to develop a coherent approach to the magna quaestio of the dividing line between ‘hard-core criminal law’ and the rest of criminal law, which echoes the outdated distinction between the mala in se and the mala prohibita. Besides being too simplistic, the Grand Chamber's distinction seems rather artificial. In Jussila, as in a few other cases, the social stigma criterion resembles a merely rhetorical argument that the Court does not really use to solve cases89.. In fact, the Court decided the Jussila case very pragmatically, on the basis of the fact that the applicant was given ample opportunity to put forward his case in writing and to comment on the submissions of the tax authorities.

The lack of conceptual clarity on the definition of ‘hard-core criminal law’ under Article 6 is further aggravated by the fact that the application of the Engel criterion is normally more a matter of degree, depending on the weight of the applied and applicable penalties, than a matter of the nature of the charges levelled against the defendant. The Court more often than not prefers to solve the question of the applicability of the Engel criteria by resorting to a purely quantitative evaluation, rather than a qualitative one, of the offences at issue. When it embarks on a substantive analysis of the nature of the offence, it frequently uses the erroneous Öztürk argument of the limited personal scope of the norm90..

In sum, the Öztürk policy choice to ‘criminalise’ petty administrative offences for the purposes of Article 6 was fundamentally reviewed in Jussila. The apparent extension of this policy choice to tax penalties was diluted in the end by the efficiency-oriented, pragmatic stance of the Court, which labelled these petty offences as, although ‘criminal’, not ‘hard core criminal’, and therefore undeserving of the full protection of the criminal limb of Article 6. The interests of efficient mass tax collection speak louder than any other.

Be that as it may, the message of the Court in Jussila is valid for Norway as well. The tax penalties imposed in the present case were criminal in nature and the respective tax proceedings were criminal for the purposes of Article 4 of Protocol No. 7. The Norwegian tax penalties of 30%, with an overall possible maximum of 60% for wilful or grossly negligent offences, are well above the Jussila standard.

This is also the position of the majority of the Grand Chamber in the present case, since they confirm, contrary to the assertion of the Government91., that there is not a narrower notion of ‘criminal’ under Article 4 of Protocol No. 7. Hence, the majority reject the approach taken in Storbråten92., Mjelde93. and Haarvig94., where the Court accepted a wider range of criteria than the Engel criteria for the purposes of establishing the existence of criminal proceedings under Article 4 of Protocol No. 7.

Second Part

Article 4 of Protocol No. 7 prohibits anyone from being prosecuted or tried for an offence for which he or she has already been finally acquitted or convicted. An approach emphasising the legal characterisation of the offence (idem crimen) would be too restrictive. If the Court limited itself to finding that a person had been prosecuted for offences with a different legal classification, it would risk undermining the guarantee enshrined in Article 4 of Protocol No. 7, for two reasons. First, the same fact may be characterised as a criminal offence in different States, but the constituent elements of the offence may differ significantly. Second, different States may characterise the same fact as a criminal offence or an administrative (that is, non-criminal) offence95..

Accordingly, Article 4 of Protocol No. 7 has to be understood as prohibiting the fresh prosecution or trial of an offence in so far as it arose from identical facts or facts which were substantially the same (idem factum)96.. It is therefore important, in the Court's eyes, to focus on those facts which constituted a set of concrete factual circumstances involving the same defendant and inextricably linked together in time and space, the existence of which must be demonstrated in order to secure a conviction or institute criminal proceedings97.. This means that the scope of the prohibition encompasses the prosecution of new offences which are in a relationship of apparent concurrence (concours apparent, concorso apparente, Gesetzeskonkurrenz) or true concurrence (concours idéal de crimes, concorso ideale di reati, Idealkonkurrenz)98. with the offence or offences already tried. The same prohibition is valid for a combination of offences (concours réel de crimes, concorso materiale di reati, Realkonkurrenz) when they are connected by temporal and spatial unity. This also means that the ne bis in idem effect of a judgment concerning a continuous offence precludes a fresh trial on charges relating to any new individual act forming part of the succession of criminal acts99..

To sum up, Sergey Zolotukhin affirms the ne bis in idem principle as an individual right in European human rights law, with the same scope as the standard exhaustion-of-procedure principle (Erledigungsprinzip)100.. This guarantee extends to the right not to be prosecuted or tried twice101.. The European meaning of the principle goes far beyond the maxim of res judicata pro veritate habetur, which is aimed fundamentally at protecting the final, authoritative, public statement on the crimen, and therefore at ensuring legal certainty and avoiding contradictory judgments. In addition to this, the European understanding of the ne bis in idem principle seeks to protect the person suspected of the alleged offence from double jeopardy where a prior acquittal or conviction has already acquired the force of res judicata102..

Nevertheless, the Court required in Sergey Zolotukhin that a comparison be made between the decision by which the first ‘penal procedure’ was concluded and the list of charges levelled against the applicant in the new proceedings. Since the facts in the two sets of proceedings differed in only one element, namely the threat of violence, which had not been mentioned in the first set of proceedings, the Court found that the criminal charge under Article 213 § 2 (b) of the Criminal Code encompassed the elements of the offence under Article 158 of the Code of Administrative Offences in their entirety and that, conversely, the offence of ‘minor disorderly acts’ did not contain any elements not contained in the offence of ‘disorderly acts’ and ‘concerned essentially the same offence’103..

In view of the above, I share the view of the majority of the Grand Chamber in the present case that the criminal offences for which the applicants were prosecuted, convicted and sentenced were based on the same set of facts for which the tax penalties were imposed on them.

The aim of Article 4 of Protocol No. 7 is to prohibit the repetition of proceedings which have been concluded by a ‘final’ decision. According to the Explanatory Report on Protocol No. 7, which itself refers back to the European Convention on the International Validity of Criminal Judgments, a decision is final ‘if, according to the traditional expression, it has acquired the force of res judicata. This is the case when it is irrevocable, that is to say when no further ordinary remedies are available or when the parties have exhausted such remedies or have permitted the time-limit to expire without availing themselves of them’104.. In Sergey Zolotukhin, the Court reiterated that decisions against which an ordinary appeal lay were excluded from the scope of the guarantee contained in Article 4 of Protocol No. 7 as long as the time-limit for lodging such an appeal had not expired. On the other hand, extraordinary remedies such as a request for reopening of the proceedings or an application for extension of an expired time-limit are not taken into account for the purposes of determining whether the proceedings have reached a final conclusion.

Unlike the majority of the Grand Chamber, I cannot follow the Supreme Court's and the applicants' position as regards the argument that the tax penalty decisions became final on 15 December 2008 for Mr A and on 26 December 2008 for Mr B, that is, before they were convicted for the same conduct by the District Court, even though the six-month time-limit for instituting judicial proceedings pursuant to section 11-1(4) of chapter 11 of the Tax Assessment Act had not yet expired. Since the applicants still had the right of access to a full judicial review, I fail to see how the administrative decisions on tax penalties can be regarded as ‘irrevocable’105.. This conclusion is even more forceful bearing in mind that, since the administrative bodies in question are neither independent nor tribunals at all, the right of access to a judicial procedure is necessary in order for the administrative penalties to comply with Article 6 § 1 in the Convention106..

The exact date when the administrative decisions became final is evidently not an anodyne fact. A legal scenario in which the administrative decision to impose tax penalties becomes final first may be different from one in which the criminal conviction for tax fraud becomes final first. Although the Court has stated that ‘the question whether or not the non bis in idem principle is violated concerns the relationship between the two offences at issue and can, therefore, not depend on the order in which the respective proceedings are conducted’107., the legal impact of a final criminal conviction on administrative proceedings may differ quite significantly from the legal impact of a final administrative decision on criminal proceedings. The majority shut their eyes to this distinguo, without assessing the different legal consequences in Norwegian law of each of these legal scenarios. They simply assume that the administrative and criminal proceedings formed part of an ‘integrated approach response’108., concluding that it was not necessary to decide the issue of the finality of the administrative proceedings. I will demonstrate next the negative effects of this position.

Although the Court did not address the scenario of parallel proceedings ex professo in Sergey Zolotukhin109., it did brush off the erroneous, supplementary condition which Zigarella had added to bis: 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 ne bis in idem110..

Literally, there is nothing in the wording of Article 4 of Protocol No. 7 to suggest that a distinction should be made between parallel and consecutive proceedings, between the continuation of a pending, parallel prosecution and the launching of a new prosecution. Strictly speaking, the provision does not preclude several parallel sets of proceedings from being conducted before a final decision has been given in one of them. In such a situation it cannot be said that the individual has been prosecuted several times ‘for an offence for which he has already been finally acquitted or convicted’111.. In a situation involving two parallel sets of proceedings, the Convention requires the second set of proceedings to be discontinued as soon as the first set of proceedings has become final112.. When no such discontinuation occurs, the Court finds a violation113..

However, in a number of cases the Court has set a different standard for certain parallel administrative and criminal proceedings. In Nilsson, the Court held for the first time that ‘while the different sanctions were imposed by two different authorities in different proceedings, there was nevertheless a sufficiently close connection between them, in substance and in time, to consider the withdrawal to be part of the sanctions under Swedish law for the offences of aggravated drunken driving and unlawful driving’114.. It is not clear what the Court means by the ‘sufficient connection in time’ requirement, since it is not explicit whether the Court is referring to the period of time between the decision which became final first (the applicant's conviction of 24 June 1999 by the Mora District Court ) and the decision which became final last (the Supreme Administrative Court's decision of 18 December 2000 dismissing the applicant's appeal), or between the first administrative decision (the notification of 5 May 1999 by the County Administrative Board) and the first criminal court decision (the conviction of 24 June 1999 by the Mora District Court), or between the first criminal court decision (the conviction of 24 June 1999 by the Mora District Court) and the first administrative decision on the withdrawal of the driving licence (the decision of the County Administrative Board of 5 August 1999). In fact, there was a very short overlap between the administrative proceedings, which started on 5 May 1999 and ended on 18 December 2000, and the criminal proceedings, which ended on 24 June 1999.

In Boman115. the Court also found that there was such a time connection, since the police's decision of 28 May 2010 to impose the second driving ban was directly based on the applicant's final conviction by the District Court for traffic offences, delivered on 22 April 2010, and thus did not contain a separate examination of the offence or conduct at issue by the police. The sufficient connection in time was linked to the lack of an autonomous assessment of evidence, as if the two went hand in hand.

Contrastingly, in Glantz116., Nykänen117., Lucky Dev118., Rinas119. and Österlund120. the Court took into consideration the dates when the administrative and criminal decisions had become final. In all of those cases, the Court found a violation. In Glantz121. the administrative proceedings were initiated on 18 December 2006 and became final on 11 January 2010, whereas the criminal proceedings were initiated on 15 December 2008. The two sets of proceedings were thus pending concurrently until 11 January 2010, when the first set became final. As the criminal proceedings were not discontinued after the first set of proceedings became final but were continued until a final decision on 18 May 2011, the Court found that the applicant had been convicted twice for the same matter in two sets of proceedings which had become final on 11 January 2010 and 18 May 2011 respectively122..

In Rinas123. the Court noted that when the criminal proceedings had become final on 31 May 2012, the applicant's appeal against the tax surcharge decisions had still been pending before the Supreme Administrative Court. As the administrative proceedings before the Supreme Administrative Court were not discontinued after the criminal proceedings became final but were continued until a final decision on 13 September 2012, the applicant had been convicted twice for the same matter concerning the tax years 2002 to 2004 in two sets of proceedings which became final on 31 May 2012 and on 13 September 2012 respectively124..

The Court came to a different finding in Häkkä125.. The administrative proceedings started in 2007, when the tax surcharges were imposed on the applicant. He apparently never sought rectification or appealed and therefore those proceedings became final on 31 December 2010 and 31 December 2011 respectively, when the time-limits for rectification and appeal ran out. The criminal proceedings were initiated on 3 April 2008 and concluded on 29 June 2010, when the Supreme Court rendered its final judgment. The two sets of proceedings were thus pending concurrently until 29 June 2010, when the second set became final. The Court did not find a violation, because ‘the applicant had a real possibility to prevent double jeopardy by first seeking rectification and then appealing within the time-limit which was still open to him’126.. Hence, according to the Court in Häkkä, if the defendant does not make use of administrative appeals, ne bis in idem does not operate, even if he or she has already been convicted with final effect in the criminal proceedings.

Finally, in Kiiveri127. the Court found that the applicant could no longer claim to be a victim of double jeopardy in relation to the tax year 2002, precisely because the Supreme Court had found that this issue had already been finally decided in the taxation administrative proceedings and had dismissed the criminal charge of aggravated tax fraud ‘without examining the merits’128. in so far as the charge concerned the tax year 2002, on the basis of the principle of ne bis in idem.

The above suffices to show that the ‘sufficient connection in time’ criterion is arbitrary. This is precisely why the Court dispensed with it in the Italian and Greek cases129..

Contrary to the position of the French Government, who identified the assessment by the tax authority and the judicial investigation as the two phases which ought to proceed simultaneously or to be separated by only a very short interval130., the majority in the present case chose to attach relevance to the nine-month period from when the tax authorities' decision of 5 December 2008 had become final until the second applicant's conviction of 30 September 2009. Although this period was ‘somewhat longer’131. than the two-and-a-half-month period in the case of the first applicant, that additional delay is attributed by the majority to the second applicant's withdrawal of his confession. According to this reasoning, the ne bis in idem guarantee becomes flexible, having a narrower scope when the defendant exercises her or his own procedural rights and a wider scope when he or she does not. The punitive mindset of the majority could not be more eloquently shown.

The majority explicitly follow the line of reasoning set out in R.T v. Switzerland132. and in Nilsson v. Sweden133. concerning dual administrative and criminal proceedings, where the decisions on withdrawal of a driving licence were directly based on an expected or final conviction for a traffic offence and thus did not contain a separate examination of the offence or conduct at issue134.. This case-law was further developed in Lucky Dev, Nykänen and Häkkä135., where the Court found that there was no close connection, in substance and in time, between the criminal and the taxation proceedings. In the three above-mentioned cases, the tax proceedings and the criminal proceedings were parallel and concerned the same period of time and essentially the same amount of evaded taxes. In all of them, the Court noted that the offences had been examined by different authorities and courts without the proceedings being connected, both sets of proceedings having followed their own separate course and become final at different times. Finally, in all of them, the applicants' criminal responsibility and liability to pay tax penalties under the relevant tax legislation were determined in proceedings that were wholly independent of each other. In Lucky Dev, the Supreme Administrative Court did not take into account the fact that the applicant had been acquitted of the tax offence when it refused leave to appeal and thereby made the imposition of tax surcharges final136.. In Nykänen and Häkkä, neither of the administrative and criminal penalties was taken into consideration by the other court or authority in determining the severity of the sanction, nor was there any other interaction between the relevant authorities137..

Before discussing in detail this line of reasoning, two fallacious arguments must be discarded right from the outset. One says that if Article 4 of Protocol No. 7 were to be interpreted as prohibiting the finalisation of ongoing parallel proceedings from the moment either administrative or criminal proceedings were concluded by a final decision, this would entail ‘far-reaching, adverse and unforeseeable effects in a number of administrative-law areas’138.. Such an argumentum ad terrorem, which plays the fear-appeal card, is not a legal argument and therefore should be given no credit whatsoever in a court of law. The other example of an inadmissible fallacy is the argument that several European States which have a dual system of sanctions have pleaded for its maintenance before the Court, expressing views and concerns similar to those of the respondent Government139.. This is called an argumentum ad nauseam, playing on the repetition of the argument by several interested stakeholders, and not on its merits. It should qua tale have no place in a court's decision.

Two erroneous general assumptions must also be denounced. It is erroneous to argue, in an Article 4 of Protocol No. 7 context, that States should enjoy a wide margin of appreciation in this matter as long as the dual sanctions scheme appears to pursue a legitimate aim and does not entail an excessive or disproportionate burden for the defendant. Ne bis in idem is a non-derogable right and therefore States enjoy no margin of appreciation140..

It is also impermissible to argue that it might be coincidental which of the parallel proceedings becomes final first and that if the authorities were to be compelled to discontinue one set of proceedings once the other set became final, this could lead to an arbitrary outcome of the combined proceedings. This line of argument simply begs the question, since it presupposes that there must be more than one set of proceedings for the same facts. Furthermore, it implies that the defendant could use the ne bis in idem principle as a tool for ‘manipulation and impunity’141., as if the defendant were always in a position to control the pace of the proceedings. Such a vision of the balance of powers in administrative proceedings is disconnected from reality142.. Ultimately, the underlying assumption of the majority's reasoning is that ne bis in idem is not the expression of a subjective right of the defendant, but a mere rule to guarantee the authority of the chose jugée, with the sole purpose of ensuring the punitive interest of the State and the impugnability of State adjudicatory decisions. The following reflections will evidence this pro autorictate stance of the majority in greater detail.

According to the majority, four substantive conditions must be fulfilled for cumulative administrative and criminal penalties to be acceptable: proceedings pursuing complementary aims and addressing different aspects of the social misconduct at issue; foreseeability of the combination of penalties; no duplication of the collection and assessment of evidence; and an offsetting mechanism between the administrative and criminal penalties.

The majority's first condition refers to different proceedings pursuing complementary aims and addressing different aspects of the social misconduct involved. The majority identify in paragraph 144 the different aims pursued by tax penalties under section 10 of chapter 10 (general deterrence and compensation for the work and costs incurred by tax authorities in order to identify defective declarations) and by a criminal conviction under section 12 of chapter 12 of the Tax Assessment Act 1980 (punitive purpose). The majority also point out in paragraph 123 the ‘additional element’ of the criminal offence (fraudulent conduct), which according to them is not addressed by the administrative tax offence. In other words, the majority side with the Government, who contend that ordinary tax surcharges are ‘imposed objectively without regard to guilt, with a remedial purpose to compensate the State for costs incurred’ in the checking process143..

This contention does not stand, for two principled legal reasons. First, there is no provision or other binding instrument in domestic law requiring proportionality between the tax penalties and the costs incurred by the tax administration in order to detect, investigate, prosecute and make good the specific tax offence imputed to the offender. Such a requirement would in any event be simply unfeasible, since it could only be based on a virtual, rough estimation of the costs per capita incurred by the tax authorities with the entire machinery of checks and audits carried out in order to identify defective declarations. Hence, if tax penalties pursued a compensatory aim, this would imply an impermissible element of collective guilt, imposing on some taxpayers the costs of the entire system for checking tax declarations.

Second, the majority's position neglects the fact that the tax penalty at issue cannot in any possible way be considered merely compensatory. Tax penalties of up to 30% or even 60% are so severe that they undoubtedly include an element of punishment. In Janosevic, surcharges normally fixed at 20% or 40% of the tax avoided, without an upper limit and not convertible into a prison sentence in the event of non-payment, were held to fall under the criminal limb of Article 6144.. Ultimately, the majority are unaware of the inherent punitive purpose of any tax penalty, regardless of its amount, as the Jussila precedent established long ago in the case of a 10% tax surcharge that was imposed, with an overall maximum possible surcharge of 20%145.. It is hard to understand why the Court should suddenly depart from these well-established standards in the present case without any explanation.

In sum, in the Norwegian legal framework, administrative tax proceedings are aimed at deterring potential fraudsters and reoffending. General prevention is the admitted purpose of the tax penalties in question146.. Pursuing general prevention ‘necessarily’ has side-effects of punishment and special prevention regarding the convicted offender and these side-effects are obviously intended by the State policy147.. The Supreme Court has made a laudable effort to limit these exemplary, punitive effects by the principle of proportionality148.. But the Court should not engage in playing with semantics. Instead it should assess in a down-to-earth, realistic fashion tax penalties and their impact on the lives of taxpayers. In this light, general prevention through proportionate punishment is nothing but a ‘disguised retributive theory’ (verkappte Vergeltungstheorie)149..

The Government's line of argument can also not be accepted with regard to the ‘additional element’ of the criminal offence, the alleged element of fraudulent intent. Acceptance of the Government's argument would run counter to Ruotsalainen150.. In that case, the respondent Government argued that tax fraud included the element of ‘wilfulness’, whereas the administrative offence was possible on solely objective grounds. The Court's reply was eloquent: the facts in the two sets of proceedings hardly differed, although there was the requirement of intent in the criminal proceedings, but this was not relevant for the purposes of Article 4 of Protocol No. 7. The elements of the two offences therefore had to be regarded as substantially the same for these purposes. The same should apply in the present case.

Furthermore, the majority do not compare the subjective elements of the administrative tax offences that are punishable by tax penalties and the criminal tax offences that are punishable by imprisonment or a fine. Consequently, they omit to take into account the ethical reproach inherent in the letter and spirit of the relevant provision of the 1980 Tax Assessment Act (section 10-2 to 4 of Chapter 10). Section 10-3 refers to ‘excusable’ and ‘cause for which he cannot be blamed’ as causes for tax remission. Inexcusability and blameworthiness are intrinsically ethical concepts of the administrative offences which characterise the mens rea of the offender. They are to be found in criminal offences as well. The 2010 amendment to this provision deleted the reference to both concepts of inexcusability and blameworthiness, but added the notion of ‘obviously inadvertent error’, which obviously includes an element of ethical reproach for ‘non-inadvertent’ or intentional errors.

Moreover, tax penalties of up to a maximum of 60% may be imposed when acts are committed wilfully or with gross negligence. Hence, they require the establishment of mens rea and guilt, as in criminal cases. The subjective element of fraud of the criminal provision of section 12-1 of Chapter 12 — ‘when he or she is aware or ought to be aware that this could lead to advantages pertaining to taxes or charges’ — overlaps with the subjective element of the aggravated tax penalty of up to 60% (intent or gross negligence — section 10-4 of Chapter 10). To put it differently, the subjective elements of the administrative and the criminal offences coincide. There are no different aspects of the social misconduct targeted in the administrative and criminal proceedings at stake.

One final note: the majority's first condition pertains ultimately to the determination of idem. The establishment of the ‘different aims’ pursued by administrative and criminal offences and of the ‘different aspects of the social misconduct’ targeted by each one of these offences is intrinsically a substantive issue that has to do with the definition of idem. These questions must be considered to relate more to the concept of idem than to that of bis, contrary to the conceptual approach of the majority. In spite of this conceptual confusion, the majority's purpose is very clear: to limit the scope of idem factum. By so doing, they inflict a major blow to Sergey Zolotukhin.

The majority's second condition deals with the foreseeability of the duality of administrative and criminal proceedings as a consequence, both in law and practice, of the same social misconduct. Such foreseeability is affirmed ab initio in paragraphs 146 and 152 of the judgment, without the slightest effort to delve into the very delicate issue of the required degree of knowledge for administrative liability. A legal issue that has absorbed the attention of the academic community for decades has simply been disregarded151.. The majority simply assume that citizens in general, and taxpayers specifically, know or should know the entire administrative legal framework, including penalties, and therefore may be made responsible for any faults and defective conduct in the light of this legal framework.

The majority do not spend a single line of their reasoning responding to the applicants' argument that the penalties imposed on them were discriminatory, discretionary and therefore not foreseeable because four other defendants (G.A., T.F., K.B. and G.N.) involved in the same set of events did not have tax penalties imposed on them, while the applicants had to endure prison terms and tax penalties152.. This argument goes to the heart of the majority's second condition.

The facts of the present case show that the 3 April 2009 Guidelines of the Director of Public Prosecutions were not applied to the applicants, either to A, whose conviction in the criminal proceedings dates from 2 March 2009, or even to B, whose conviction dates from 30 November 2009. The Supreme Court noted this fact, but disregarded it with the justification that ‘the public prosecuting authority reserved the right to institute proceedings in criminal cases based on individual assessment if parallel proceedings were in progress that were not in contravention of [Article 4 of Protocol No. 7]. It has been stated that the case against [A] was continued because a correct sanction was desirable in relation to other cases in the same related set of cases. … Hence, the basis for the decision was the principle of equal treatment in related cases.’ The applicants rejected that argument, pointing out that on the basis of the 2009 Guidelines, tax penalties had not been imposed on four other defendants involved in the same set of events. The Government did not specifically dispute this claim. The majority have nothing to say on this major argument submitted by the applicants.

In any event, the discretion left by the Guidelines is impermissible in the light of Camilleri153.. This discretion raises an issue of legal uncertainty. The Guidelines created an expectation that the State no longer considered the Norwegian two-track system for the punishment of tax fraud lawful or in compliance with the Convention, and therefore the public prosecuting authorities had a legal obligation to appeal against convictions and, prior to their delivery, to drop the charges154.. The decision of the public prosecuting authorities to proceed differently in the applicants' cases was not foreseeable. The preferential treatment given to four other defendants involved in the same set of events, who were exempted from any tax penalties (G.A., T.F., K.B. and G.N.), only serves as evidence of the discretionary and therefore unforeseeable choice by the domestic authorities.

The majority's third condition consists of a soft prohibition (‘as far as possible’) of the duplication of the collection and assessment of evidence, with the benefit of an example (‘notably’): the interaction between different authorities, administrative and judicial, to ensure that the establishment of facts in one set of proceedings is also used in the other set155.. To me, this condition is very problematic.

As a matter of principle, conditions pertaining to the protection of a non-derogable individual right such as ne bis in idem must not be left to the discretion of States. Since the majority's third condition is a mere de iure condendo recommendation, it is not a Convention requirement. It has the same effect as the equally de iure condendo statement that ‘the surest manner of ensuring compliance with Article 4 of Protocol No. 7 is the provision, at some appropriate stage, of a single-track procedure’156.. Both are non-binding dicta, which add nothing to the binding case-law of the Court.

Additionally, this recommendation merely scratches the surface of a very serious problem. The existence of different pronouncements by the administrative and the judicial authorities on the same facts, based on a different assessment of the same evidence, calls into question the authority of the State. Worse still, a different assessment of the evidence in administrative and criminal proceedings allows for the insidious manipulation of the administrative proceedings for the purposes of the criminal proceedings. This manipulation is even more worrying than the danger to the State's authority, because it puts the defendant in a defenceless position. That is to say, the criminal conviction is almost a foregone conclusion when the taxpayer's administrative offence has already been established on the basis of a lower burden of proof. The taxpayer's duty to cooperate with the tax authorities in administrative proceedings aggravates this conclusion even further.

The majority do not compare the evidentiary rules of administrative and criminal procedure in Norway, in order to ascertain whether there is a danger of duplication in the collection and assessment of evidence in both proceedings. Moreover, they do not analyse the legal framework regulating the interaction between the different administrative and judicial authorities, to check if the establishment of facts in the administrative proceedings impacts on the criminal proceedings and vice versa. In paragraphs 145 and 150 of the judgment the majority simply refer to some instances of ad hoc exchange of information between the administrative and judicial authorities, and nothing more.

Yet the parties discussed the question thoroughly. The Government acknowledged that the standard of the burden of evidence was different in tax proceedings, to which the ‘qualified probable cause’ standard applied, and criminal proceedings, to which the ‘strict standard of proof’ applied. In fact, this is one of the ‘major advantages’ that administrative proceedings offer, in the Government's opinion157.. If this is the case, then the majority's third condition is not fulfilled in Norwegian law, for the simple reason that, since different standards of the burden of evidence apply, the evidence must be assessed differently in administrative and criminal proceedings, with the obvious risk of different pronouncements on the same facts.

Between the Charybdis of the risk of contradictory findings in administrative and criminal proceedings owing to different evidentiary standards (deux poids, deux mesures) and the Scylla of the manipulation of the administrative evidence for criminal purposes, the defendant is in any event placed in an unfair position in the Norwegian double-track system.

The majority's fourth condition is the existence of ‘an offsetting mechanism designed to ensure that the amount of any penalties imposed is proportionate’158.. Without any previous explanation of why this option has been chosen, the majority do not consider other well-known procedural solutions, such as the suspension of one set of proceedings while another concurring set of proceedings is pending159., or other substantive solutions, such as the principle of specialty or the setting of limits for punishment for a combination of criminal and administrative offences, such as a requirement that the overall amount of the penalties imposed should not exceed the highest amount that could be imposed in respect of either of the types of penalty, or that the maximum level of the tax penalty should be set at the minimum level for the criminal offence. The scope and features of the proposed offsetting mechanism proposed are, to say the least, very problematic.

The majority's line of reasoning conflicts head-on with the Court's recent position in Grande Stevens and Others, which concerns parallel administrative and criminal proceedings. The Italian Government argued without success in that case that, in order to ensure the proportionality of the penalty to the accusations, the Italian criminal courts were able to take into account the prior imposition of an administrative penalty and to reduce the criminal penalty. In particular, the amount of the administrative fine was deducted from the criminal financial penalty (Article 187 terdecies of Legislative Decree no. 58 of 1998) and assets already seized in the context of the administrative proceedings could not be confiscated160.. That argument, which was given no credit by the Court in Grande Stevens and Others, is now put at centre stage in the Norwegian context, without any justification by the majority for this sudden change of heart. The majority seem to have forgotten that in Grande Stevens the Court decided that the respondent State had to ensure that the new set of criminal proceedings brought against the applicants in violation of ne bis in idem were closed as rapidly as possible and without adverse consequences for the applicants161..

The Italian Government also argued that the double-track system was required by Directive 2003/6/EC of 28 January 2003 on insider dealing and market manipulation, in order to fight market manipulation and abuses more efficiently, invoking the Advocate General's opinion in Hans Åkerberg Fransson162.. The Court easily dismissed that argument as invalid163.. In this context, it is quite puzzling that the Court now cites the opinion of the Advocate General in Fransson as supportive of its views164.. In spite of the fact that the Luxembourg Court disapproved of the Advocate General's perspective and reached a decision in line with the Strasbourg Court's case-law, and in spite of the fact that in Grande Stevens the Court rejected that same perspective of the Advocate General, the majority in the present case support his position. The Strasbourg Court willingly distances itself from the Luxembourg Court, which had made an effort to align the positions of both courts in Fransson. The judges of the Court prefer to side with the sole voice of the Advocate General, who was vehemently critical of the Court's case-law for being contradictory with European constitutional tradition. The unexplained change of heart in Strasbourg represents a serious setback for the relationship between the two European courts.

Furthermore, the majority's offsetting mechanism only applies to the deduction of penalties imposed in the proceedings which become final first. It does not apply in the event of a different outcome in the proceedings which become final first, namely if the court delivers an acquittal or decides to discontinue the case. The reason is obvious. In these cases, there is literally nothing to offset — that is, to compensate for or to deduct — in the subsequent or parallel administrative proceedings.

This question is obviously crucial in the light of the recent Greek cases where the administrative courts imposing administrative fines failed to take into account the applicants' acquittal in parallel (applications nos. 3453/12 and 42941/12) and subsequent (application no. 9028/13) criminal proceedings relating to the same conduct165.. Following the rationale of Kapetanios and Others, any acquittal or discontinuance of the criminal case would have a Sperrwirkung on other parallel or subsequent administrative proceedings, as the Court also concludes in Sismanidis and Sitaridis, which also concerns two cases (applications no. 66604/09 and 71879/12) of parallel administrative and criminal proceedings166.. The acquitted defendant has the right not to be disturbed again for the same facts, which includes the risk of a new prosecution, regardless of the different nature of the (judicial and administrative) bodies involved167.. In other words, there is an absolute prohibition on pronouncing again on the same facts. Furthermore, the taking into account of the res judicata force of the acquittal is an ex officio obligation of the courts and administrative authorities in view of the absolute and non-derogable nature of the defendant's right168..

The Greek case-law is also in line with the clear statement of principle made in paragraph 60 of Lucky Dev, emphasising that Article 4 of Protocol No. 7 would be violated if one set of proceedings continued after the date on which the other set of proceedings was concluded with a final decision. In Lucky Dev, tax surcharges were applied after a final acquittal in the parallel criminal proceedings, and the Court's principled statement is crystal clear: ‘That final decision would require that the other set of proceedings be discontinued.’169.

To sum up, the present judgment contradicts the core of the Kapetanios and Others, Sismanidis and Sitaridis and Lucky Dev jurisprudence. For the majority, the acquittal of the defendant, be it because the acts do not constitute a criminal offence, the defendant did not commit them or it is not proven that the defendant committed them, does not have to be taken into account in subsequent or parallel administrative proceedings. This evidently also raises an issue with regard to Article 6 § 2 of the Convention. Any new pronouncement on the merits would call into question the presumption of innocence resulting from the acquittal170..

The majority's offsetting mechanism is also not applicable in a scenario where the proceedings which become final first are the administrative proceedings and no tax penalties are imposed because the respective administrative liability has not been proven. In the majority's view, the taxpayer can still be convicted for the same facts and sentenced in criminal proceedings in this scenario.

By now, it is plain to see that the fourth condition is a chèque en blanc for States to do as they please. But worse still is the fact that the majority do not explain how the offsetting mechanism works in Norwegian law. Paragraph 50 of the judgment alone provides a summary of the case-law, which leaves the reader with the impression that discretion reigns in the way criminal courts sometimes decide to take into account previous administrative penalties and sometimes decide not to. That impression is borne out in the case at hand, as demonstrated below. Furthermore, there is no indication whatsoever in the judgment that a similar offsetting mechanism exists in tax proceedings, whereby previous criminal penalties would have to be taken into account in the determination of tax penalties.

The Government stated that ‘[i]mposed tax surcharges will be taken into account when the courts assess what is a fair and adequate sanction for a company, see Section 28 litra g of the 2005 Penal Code. When a natural person is sentenced, courts will take into account any tax surcharges that have been imposed, pursuant to Section 27 of the 1902 Penal Code, transposed in Section 53 of the 2005 Penal Code.’171. Section 27 provided: ‘When a fine is imposed, due consideration should be given not only to the nature of the offence but also especially to the financial position of the convicted person and to what he can presumably afford to pay in his circumstances.’ No mention is made of penalties in parallel or previous proceedings relating to the same facts, let alone to tax penalties. No mention is made either of the limits of the combination of penalties, such as, for instance, a requirement that the overall amount of the penalties imposed should not exceed the highest amount that could be imposed in respect of either of the types of penalty. In fact, the taking into consideration of previous penalties is not even mentioned in the event that a sentence of imprisonment has been imposed.

To put it simply, there is no offsetting mechanism in Norwegian law, but a general, undifferentiated indication given by the legislature to the judge that the financial situation of the convicted person should be taken into account when sentencing him or her to a fine. No more, no less.

The Supreme Court's case-law based on the above mentioned Penal Code provisions, in so far as it has been made available to the judges of the Grand Chamber, may be creative, but it is certainly not foreseeable. It is so broadly couched that even the most experienced lawyer cannot anticipate whether and how tax penalties will be taken into consideration in the imposition of criminal pecuniary penalties. Furthermore, its impact is very limited in practical terms. Since it does not allow for any offsetting in imprisonment cases, the Supreme Court's case-law limits the alleged impact of the compensatory effect to cases of lesser gravity, but denies it in the most serious cases.

Mindful of the weaknesses of the domestic legal framework, a laudable effort has been made by Norwegian judges to fill the legal black hole and put some proportionality into an arbitrary, excessive and unfair system: arbitrary in the choice of single- or double-track punishment, excessive in the penalties applied and procedurally unfair in the way it treats defendants. But ne bis in idem‘is not a procedural rule which operates as a palliative for proportionality when an individual is tried and punished twice for the same conduct, but a fundamental guarantee for citizens’172..

Like the Government, the majority are seduced by an ‘efficiency interests’-driven approach173., according to which the rationale of the ne bis in idem principle applies to a ‘lesser degree to sanctions falling outside the hard core of criminal law, such as tax penalties’174.. They overlook the fact that the content of a non-derogable Convention right, such as ne bis in idem, must not be substantially different depending on which area of law is concerned. There is no leeway for such an approach in Article 4 § 3 of Protocol No. 7.

Finally, and most importantly, in the case at hand the tax penalties were taken into account by the domestic court in the following way as regards the first applicant: ‘A noticeable sanction has already been imposed on the defendant with the decision on tax surcharge. Most of the tax has already been paid.’ The consideration given to the tax penalty in the case of the second applicant is even more succinct: ‘Account must be taken of the fact that a tax surcharge of 30% has been imposed on the defendant’175.. In neither of the cases did the domestic courts care to explain the impact of the previous tax penalties on the criminal penalties. The cosmetic reference to previously imposed tax penalties may appease some less demanding consciences, but it is certainly not a predictable and verifiable legal exercise. In this context, the conditions, degree and limits of the tax penalties' impact on criminal sanctions can only be the object of pure speculation, remaining in the realm of the unknown, inner belief of the trial judges, inaccessible to the defendants.