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  • Compliance & Business Integrity
  • 16-02-2017

When do finished proceedings (in which a sentence has been imposed) prevent further new proceedings regarding the same offence – the principle of “ne bis in idem” (not twice for the same thing)?

 

A recent ruling (16 November 2016) by the European Court of Human Rights (ECtHR) provides a few guidelines. According to the ECtHR in the case concerned, the fact that a case has been dealt with does not necessarily mean the end of the matter for the offender.

The ruling concerned two sets of proceedings in Norway against two shareholders who had not declared their capital gains on their shares to the tax authorities. Action was taken against them under both criminal and administrative law. In late 2008, the tax authorities imposed a fine on the shareholders amounting to 30 percent of the retrospectively demanded tax. In 2009, the criminal court imposed a one-year prison sentence on them for the same facts and circumstances, taking account of the tax penalty already imposed.

One might at first glance think that the ECtHR would find in such a case that that was not permissible, being a violation of the ne bis in idem principle, i.e. double punishment for the same offence. But no, said the seventeen EU judges.

According to the ECtHR, the ne bis in idem principle is not breached if the two sets of proceedings “have been sufficiently closely connected in substance and in time”. In other words, the principle is not compromised if the proceedings “have been combined in an integrated manner so as to form a coherent whole”.

The ECtHR stated that factors for determining whether there is a sufficiently close connection in substance and time are:

  • the different proceedings pursue complementary purposes and thus address different aspects of the “social misconduct” involved;
  • the duality of proceedings concerned is foreseeable;
  • the various authorities have cooperated or consulted, in particular carried out the collection and assessment of the evidence only once and used it in both proceedings; and
  • above all, whether the sanction imposed in the proceedings which become final first is taken into account in those which become final last.

Based on the application of these criteria, the ECtHR concluded in the Norwegian case that the ne bis in idem principle had not been compromised. Subject to conditions, the ECtHR permits the same “social misconduct” to be punished twice.

In short, being fined or punished once does not necessarily conclude the matter. The ECtHR’s case law also seems to indicate once again that the possibility exists that a subsequent penalty with a (slightly) different purpose and regarding a different aspect of the same conduct that may still be in preparation can follow, meaning – at least emotionally – being punished again for the same matter.

You can read the ruling of 16 November 2016 here.

 

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