The European ne bis in idem at the Crossroads of Administrative and Criminal Law

• Date: 13 September 2019
• Year: 2019
• Author: Giulia Lasagni,Sofia Mirandola
• Pages: 52
• DOI: https://doi.org/10.30709/eucrim-2019-009

I. Common Trends in the Protection of ne bis in idem at the Supranational Level

The right not to be prosecuted or punished twice for the same offence is a fundamental principle of criminal law¹ and has a twofold rationale. On the one hand, it is a key guarantee for the individual against abuses of the ius puniendi, and, on the other hand, a means to ensure legal certainty and the stability of the res iudicata.²

At the European level, the ne bis in idem principle is enshrined in Art. 4 of Protocol No. 7 to the European Convention on Human Rights (ECHR), in Art. 50 of the EU Charter of Fundamental Rights (CFR), and in Art. 54 of the Convention implementing the Schengen Agreement (CISA).³ Despite their different wording and the wider scope of the principle at the EU level - where it is applicable also to transnational settings - the scope of protection offered by the ECHR and CFR provisions is the same with respect to the national dimension of the ne bis in idem,⁴ namely when it is applied within the same jurisdiction.

Under both legal texts, the following four elements are necessary to trigger its application: 1) two sets of proceedings of criminal nature (bis), 2) concerning the same facts (idem), 3) against the same offender, and 4) a final decision. The ne bis in idem principle therefore represents an ideal lens through which one can observe how the relationship between the Convention and the Charter and the judicial dialogue between the respective courts is evolving in the construction of a European system of fundamental rights.⁵ Cross-fertilization between the case laws of the two courts on the different elements of ne bis in idem could consequently result in a virtuous circle or, quite the opposite, in “a vicious circle of troublesome jurisprudence multiplied through mutual encouragement.”⁶

Until 2016, the jurisprudence of the Courts of Strasbourg and Luxembourg on the prohibition of double jeopardy aligned towards a higher level of protection.⁷ This defendant-friendly approach can be observed in relation to the notion of idem: The Court of Justice of the European Union (CJEU) first, soon followed by the European Court of Human Rights (ECtHR), defined it as the same set of factual circumstances, regardless of the legal classification of the offence or the legal interest protected.⁸ The persisting relevance of the legal interest in the CJEU case law in competition matters represents an exception⁹, which will yet not last much longer as a recent decision suggests.¹⁰ This convergence of the case law to the benefit of the individual touched also on the material scope of the principle, which has been widened under both the ECHR and the CFR to cover not only formally criminal proceedings but also administrative punitive proceedings with a criminal nature in light of the so-called Engel criteria.¹¹ As a result, also the imposition of an administrative penalty à coloration pénale triggers the prohibition of bis in idem.

The winds, however, have changed ever since, and a more rigid trend towards limiting the automatisms in the application of ne bis in idem now seems to draw the two courts closer together. The notion of ‘final decision’ was the first to be affected: In Kossowski,¹² the CJEU considered that a detailed investigation of the case is necessary for a decision to be given after a determination of the merits of the case. Very recently, in Mihalache v Romania, ¹³ this requirement of a detailed investigation has been taken up by the ECtHR as well for determining whether a decision to discontinue the proceedings constitutes an “acquittal” for the purposes of Art. 4 of Protocol No. 7 ECHR.

Yet the most remarkable illustration of this new course is the case law on the first condition, i.e. the bis. The course started with the ECtHR’s landmark decision in A and B v Norway,¹⁴ followed by the three CJEU 2018 decisions in Menci, Garlsson and Di Puma and Zecca,¹⁵ all dealing with the so-called double-track enforcement regimes, a widespread reality in several Member States especially in the field of economic and financial crime.¹⁶ In an attempt to justify such practice, which allows a joint imposition of administrative and criminal sanctions in respect of the same conduct, the two courts revisited their approach on the notion of bis and significantly reduced the protection afforded by the ne bis in idem principle.

The present article focuses on the dialogue between the European courts in this grey area between administrative and criminal law and aims at assessing the limits under which double-track enforcement systems are currently compatible with the principle of ne bis in idem in Europe. It will be illustrated that the respective case laws of the ECtHR and CJEU have aligned in lowering their previously more protective standards and in allowing such duplication of punitive proceedings to a certain extent. It is further argued that this acquiescence towards double-track enforcement systems draws on rules that – despite certain differences – substantially converge and, what is of more concern, in both case laws are highly unclear. The uncertainty generated by these rules arguably not only involves the risk to lead to unpredictable results, but, most importantly, also tends to put pressure on other aspects of the guarantee that to date are considered as given, such as the notion of idem itself.

II. The Downgrade of ne bis in idem for Administrative Punitive Proceedings by the ECtHR 1. The ECtHR’s judgment in A and B v Norway

In 2016, the ECtHR deviated from its previous case law and substantially reduced the scope of protection of the ne bis in idem principle with regard to dual criminal and administrative punitive proceedings in respect of the same offence. Under intense pressure of the contracting States defending their practice of double-track enforcement systems, in A and B v Norway the Grand Chamber redefined the notion of bis and admitted that under certain circumstances a combination of criminal and administrative procedures does not constitute a duplication of proceedings as proscribed by Art. 4 of Protocol No. 7 ECHR.¹⁷ To the contrary, it found that where dual proceedings represent “complementary responses to socially offensive conducts” and are combined in an integrated manner so as to form a “coherent whole” in order to address the different aspects of the offence, they should rather be considered as parts of one single procedure, and not as an infringement of the ne bis in idem principle.¹⁸ To this end, the Court requires that the two sets of proceedings be “sufficiently closely connected in substance and time” and lists the factors that determine whether there is such a close connection between them.¹⁹

As to the connection in substance, it is necessary that the dual proceedings satisfy the following four conditions :²⁰

• They pursue complementary purposes and thus address, not only in abstracto but also in concreto, different aspects of the social misconduct involved;

• They are a foreseeable consequence, both in law and in practice, of the same impugned conduct;

• They avoid, as far as possible, any duplication in the collection and assessment of the evidence;

• They “above all” put in place an offsetting mechanism designed to ensure that the sanction imposed in the first proceedings is taken into account in the second proceedings, so that the overall amount of any penalties imposed is proportionate.

In addition to the connection in substance, a connection in time must also be present, though it is not necessary for the proceedings to be conducted simultaneously and the order in which the proceedings take place is irrelevant. Nevertheless, the Court did not provide any further guidance in this regard, apart from stressing that the individual should not be subjected to uncertainty and lengthy proceedings.²¹

2. Subsequent case law and criticism – the lack of clarification

The decision in A and B sparked harsh criticism, starting from the flaming one of the dissenting judge Pinto de Albuquerque.²² The decision not only downgraded the protection offered at the conventional level by the ne bis in idem principle, but also – and more critically - laid down criteria to determine the compatibility of dual criminal and administrative proceedings, which are either “empty shells” or very ambiguous and difficult to apply in practice, and could possibly lead to arbitrary results.²³ Unfortunately, the subsequent Strasbourg case law barely offered any clarification, and such dangers were proven true.

First, some uncertainty exists as to what elements should be taken into account to determine the complementarity of the proceedings. While the ECtHR in A and B drew on the distinction introduced in Jussila v Finland²⁴ and stressed that the complementarity condition would be more likely met if the proceedings are not formally classified as criminal and do not carry any significant degree of stigma,²⁵ it never embarked on such assessment in the subsequent cases.²⁶

Second, whereas in A and B the Court referred to the different purpose of the sanctions and to the additional constitutive elements of the offence, namely its culpable character,²⁷ in Nodet v France it also considered the legal interest protected by the offence as element to assess the complementarity of the proceedings.²⁸ Furthermore, in other cases involving tax proceedings,²⁹ the assessment was performed in a merely perfunctory manner and the Court simply accepted, without any analysis whatsoever, that the two proceedings pursued complementary purposes. Such approach not only undoubtedly risks turning “complementarity” into a void condition, but also has a more subtle effect. By attaching relevance to the legal interest protected and to the constitutive elements of the offence, it reintroduces through the back door elements that were previously expressly excluded from those necessary to determine the “idem” precisely with the purpose of...