The definition of idem
RELEVANT LEGAL FRAMEWORK Relevant domestic lawRoad Traffic Safety Act Road Traffic Safety Act Road Traffic Safety Act 12. The relevant parts of the Road Traffic Safety Act ( Zakon o sigurnosti prometa na cestama, Official Gazette nos. 56/1990, 135/1997, 113/2000, 28/2001 and 76/2010) provide as follows. Section 53(1) provides that on roads in populated areas, the speed limit is 50 kph or whichever limit is displayed on a road sign. Section 53(2) provides that the penalty for driving between 30 and 50 kph above the speed limit is a fine of HRK 700 and an endorsement with two points on the person’s driving licence. Section 176(1) and (3) requires that anyone involved in a road accident in which a person has been injured must stay at the scene of the accident, come to the aid of victims, do everything in his or her power to remove any other hazards so as to allow traffic to keep moving, preserve evidence, inform the nearest police station of the accident and wait for the arrival of a person authorised to carry out an on-site inspection. Failure to comply carries a fine of at least HRK 3,000. Section 239(1) and (8) requires that vehicles in road traffic satisfy certain conditions as regards their dimensions, maximum weight, axle load and environmental considerations and that they are fitted with appropriate devices and equipment. Failure to comply carries a fine of HRK 400. Criminal Code 13. The relevant provisions of the Criminal Code ( Kazneni zakon, Official Gazette no. 110/1997 with subsequent amendments), as in force at the material time, read as follows: Article 63 “2. A prison sentence, a fine or a fine imposed in minor-offence proceedings shall count towards the penalty for a criminal offence if the description of that criminal offence corresponds to the minor offence for which the penalty has been imposed.” Article 272 “1. Any person who, by violating road-traffic safety regulations, endangers traffic such that he causes an accident in which another person suffers serious bodily injury or extensive pecuniary damage shall be liable to a term of imprisonment of six months to five years. 2. If the criminal offence referred to in paragraph 1 of this Article has been committed recklessly, the perpetrator shall be punished by a fine or a term of imprisonment of up to three years. ... 4. If the criminal offence referred to in paragraph 2 of this Article results in the death of one or more persons, the perpetrator shall be punished by a term of imprisonment of six months to five years.” European Union case-law 14. In its judgments in case C-525/15 Luca Menci, adopted on 20 March 2018, the Court of Justice of the European Union (CJEU) examined whether there had been a violation of the ne bis in idem principle in a case where both criminal and administrative sanctions had been imposed for failure to pay VAT. The CJEU concluded that such duplication of proceedings and penalties constituted a limitation of the ne bis in idem principle requiring justification. In particular, national legislation authorising a duplication of proceedings and penalties of a criminal nature had to pursue an objective of general interest, such as to justify a duplication of proceedings and penalties, it being necessary for those proceedings and penalties to pursue additional objectives; establish clear and precise rules allowing individuals to predict which acts or omissions were liable to be subject to such duplication of proceedings and penalties; ensure that the proceedings were coordinated in order to limit to what is strictly necessary the additional disadvantage which results, for the persons concerned, from a duplication of proceedings; and limit the severity of all of the penalties imposed to what is strictly necessary in relation to the seriousness of the offence concerned. THE LAW ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7 TO THE CONVENTION 15. The applicant complained that he had been tried and punished twice for the same offence. He relied on Article 4 § 1 of Protocol No. 7 to the Convention, which reads as follows: “No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.” Admissibility 16. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions The parties’ submissions The parties’ submissions 17. The applicant argued that in both the minor-offence proceedings and the proceedings on indictment, he had been tried and punished in respect of the same event of 13 October 2004. 18. The applicant pointed out that, since the Rijeka Minor Offences Court had expressly found him guilty of, inter alia, hitting a pedestrian while driving, his conviction for a minor offence encompassed the consequences of his failure to comply with traffic regulations. This showed that both sets of proceedings had been conducted with the same purpose, namely ensuring road-traffic safety, including for road users and pedestrians alike. Moreover, when the authorities competent for bringing charges had included the consequences of the applicant’s behaviour in the factual description of the minor offence with which he had been charged, it could not have been foreseen that the applicant would be subject to both sets of proceedings. 19. Furthermore, the taking of evidence had indicated that the same decisive facts – such as whether the applicant had violated road-traffic regulations and whether the speeding had caused the pedestrian’s fatal injuries – had been established in both proceedings. In the applicant’s view, the criminal court had failed to take into consideration the penalty that had been imposed on him in the minor-offence proceedings. 20. Finally, the applicant pointed out that the temporal connection between the two sets of proceedings had not been sufficiently strong, as there had been an excessive delay in the conduct of the criminal proceedings. 21. The Government argued that the minor offence for which the applicant had been punished referred to speeding, operating a defective vehicle and not going to the aid of the victim of a road accident; however, the offence for which he had been punished in the proceedings on indictment referred to reckless driving which had resulted in a road accident and another person’s death. 22. The Government further submitted that the minor-offence and criminal proceedings in the present case had been sufficiently closely connected in substance and in time to form a coherent whole. Firstly, as emphasised by both the Rijeka County Court and the Supreme Court, the purpose of the two sets of proceedings had differed: the nature of the former was to act as a general deterrent with the principal aim of ensuring that traffic rules were obeyed by everyone bearing in mind the potential danger, whereas the latter proceedings had been conducted owing to the serious consequences of the applicant’s failure to comply with the traffic rules. 23. Moreover, the Government submitted that in cases of traffic accidents resulting in a fatality, neither the domestic law nor the relevant case-law left any room for doubt that the perpetrator might, and as a general rule would, be subject to both minor-offence and criminal proceedings. The foreseeability requirement had therefore been fulfilled. The Government further pointed out that the collection and assessment of evidence had not been duplicated to the extent possible, considering the inherent differences between the two sets of proceedings. For instance, the record of the on-site inspection and the applicant’s blood analysis had first been used in the minor-offence proceedings and then in the criminal proceedings. The criminal court had also inspected the minor-offence proceedings case file. Finally, in the minor-offence proceedings the applicant had only been fined, whereas in the criminal proceedings he had been sentenced to imprisonment. 24. As regards the connection in time, the Government pointed out that the criminal proceedings had been instituted less than six months after the minor-offence proceedings and had been conducted concurrently until 31 July 2006. The period that had elapsed thereafter was a necessary and natural consequence of the greater complexity of criminal proceedings. The Court’s assessment (a) General principles 25. Article 4 of Protocol No. 7 to the Convention is understood as prohibiting the prosecution or trial of a second “offence” in so far as it arose from identical facts or facts which were substantially the same (see Sergey Zolotukhin v. Russia [GC], no. 14939/03, § 82, ECHR 2009; Marguš v. Croatia [GC], no. 4455/10, § 114, ECHR 2014; and A and B v. Norway [GC], nos. 24130/11 and 29758/11, § 108, 15 November 2016). 26. In cases raising an issue under Article 4 of Protocol No. 7, it should be determined whether the specific national measure complained of entails, in substance or in effect, double jeopardy to the detriment of the individual or whether, in contrast, it is the product of an integrated system enabling different aspects of the wrongdoing to be addressed in a foreseeable and proportionate manner forming a coherent whole, so that the individual concerned is not thereby subjected to injustice (see A and B v. Norway, cited above, § 122). The object of Article 4 of Protocol No. 7 is to prevent the injustice of a person’s being prosecuted or punished twice for the same criminalised conduct. It does not, however, outlaw legal systems which take an “integrated” approach to the social wrongdoing in question, in particular an approach involving parallel stages of legal response to the wrongdoing by different authorities and for different purposes (ibid., § 123). (b) Application of the principles in the present case (i) Whether both sets of proceedings were criminal in nature 27. In comparable cases against Croatia involving minor offences, the Court has held, on the basis of the “ Engel criteria” (see Engel and Others v. the Netherlands, 8 June 1976, Series A no. 22), that minor-offence proceedings were “criminal” in nature for the purposes of Article 4 of Protocol No. 7 (see Maresti v. Croatia, no. 55759/07, § 61, 25 June 2009; Tomasović v. Croatia, no. 53785/09, § 25, 18 October 2011; and, in the context of an Article 6 complaint, Marčan v. Croatia, no. 40820/12, § 33, 10 July 2014). 28. Noting that the parties did not dispute this, the Court sees no reason to depart from the conclusion reached in those previous cases and holds that both sets of proceedings in the present case concerned a “criminal” matter within the autonomous meaning of Article 4 of Protocol No. 7. (ii) Whether the offences were the same in nature ( idem ) 29. The notion of the “same offence” – the idem element of the ne bis in idem principle in Article 4 of Protocol No. 7 – was clarified in Sergey Zolotukhin (cited above, §§ 78-84). Following the approach adopted in that judgment, it is clear that the determination as to whether the offences in question were the same ( idem ) depends on a facts-based assessment (ibid., § 84), rather than, for example, a formal assessment consisting in comparing the “essential elements” of the offences. The prohibition in Article 4 of Protocol No. 7 to the Convention concerns the prosecution or trial of a second “offence” in so far as the latter arises from identical facts or facts which are substantially the same (ibid., § 82). In the Court’s view, statements of fact concerning both the offence for which the applicant has already been tried and the offence of which he or she stands accused are an appropriate starting-point for its determination of the issue whether the facts in both proceedings were identical or substantially the same (see, in this connection, Sergey Zolotukhin, cited above, § 83). The Court’s inquiry should therefore focus on those facts which constitute 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 proceedings (ibid., § 84). 30. In the present case, there is no doubt that both the minor-offence proceedings and the criminal proceedings on indictment concerned a road accident in Draga Brig which took place at about 11.20 a.m. on 13 October 2004 (see paragraphs 5 and 8 above). 31. In the minor-offence proceedings the applicant was punished for various offences under the Road Traffic Safety Act, namely speeding contrary to section 53(1), driving a defective vehicle contrary to section 239(1) and failing to fulfil the duties of road users in the event of an accident contrary to section 176(1) and (3), such as staying at the scene, providing aid to victims, removing any hazards, preserving evidence and informing the nearest police station (see paragraph 12 above). In the proceedings on indictment, the applicant was punished under Article 272 §§ 1, 2 and 4 of the Criminal Code, which refers to recklessly causing a road accident by violating the regulations on road-traffic safety, as a result of which a person sustains serious bodily injury or dies (see paragraph 13 above). 32. The Court notes that, of the three minor offences in question, only speeding (see paragraph 7 above) was alleged and subsequently found to have been causally linked to the road accident which resulted in a person’s death, which was precisely the offence for which the applicant was prosecuted and punished in the criminal proceedings (see paragraph 8 above). Thus, the Court considers that the minor-offence proceedings related to a number of facts – in particular driving a vehicle with worn out tyres and not providing assistance to a victim of a road accident, not informing the police and not waiting for the arrival of a person authorised to carry out an on-site inspection – which were not covered by the subsequent criminal charges (compare Hauser-Sporn v. Austria, no. 37301/03, § 43, 7 December 2006). 33. Moreover, the facts for which the applicant had been convicted under section 176(1) and (3) of the Road Traffic Safety Act could not have formed part of the offence of recklessly causing a traffic accident under Article 272 of the Criminal Code, since they covered the applicant’s conduct after the accident had taken place. It cannot therefore be said that the facts for which the applicant was punished in the minor-offence proceedings under sections 239(1) and 176(1) and (3) of the Road Traffic Safety Act can be regarded as substantially the same as the facts for which he was subsequently punished in criminal proceedings (see, mutatis mutandis, Ramda v. France, no. 78477/11, §§ 87-94, 19 December 2017). No issue under Article 4 of Protocol No. 7 thus arises in this regard. 34. Accordingly, the Court will not examine further the applicant’s complaint relating to sections 239(1) and 176(1) and (3) of the Road Traffic Safety Act as no issue under Article 4 of Protocol No. 7 to the Convention arises in that respect. 35. On the other hand, the Court notes that speeding was central to the applicant’s conviction under section 53(1) of the Road Traffic Safety Act in the minor-offence proceedings and formed an important part of his criminal charge and conviction in criminal proceedings (see paragraphs 5 and 8 above). Consequently, in the present case the Court considers that, in relation to speeding, the idem element of the ne bis in idem principle is present (compare Gradinger v. Austria, 23 October 1995, § 55, Series A no. 328-C). 36. The Court would further note that in the present case the overlap between the facts which were the subject of both the minor-offence proceedings and the criminal proceedings on indictment was only partial. Indeed, the conviction for the minor offence of speeding did not to any extent include the causing of a road accident which resulted in another person’s death. In fact, section 53(1) of the Road Traffic Safety Act is a lesser offence which is absorbed by the greater offence of causing a traffic accident as provided for in Article 272 of the Criminal Code, covering all the facts included in the lesser offence as well as some additional facts. 37. The Court reiterates at this juncture that the Convention does not prohibit the separation of the sentencing process in a given case into different stages or parts, such that different penalties may be imposed, successively or in parallel, for an offence that is to be characterised as “criminal” within the autonomous meaning of that notion under the Convention. States should be able legitimately to choose complementary legal responses to socially offensive conduct (such as non-compliance with road-traffic regulations or non-payment/evasion of taxes) through different procedures forming a coherent whole so as to address different aspects of the social problem involved, provided that the accumulated legal responses do not represent an excessive burden for the individual concerned (see A and B v. Norway, cited above, §§ 120 and 121). In fact there might be good reasons for trying traffic offences before minor-offence courts or special traffic courts under a simplified procedure, effectiveness being one of them. 38. In the present case the applicant contended that his prior conviction for a logically lesser offence barred his subsequent prosecution for a greater offence (see paragraph 36 above). However, the Court notes that if the criminal court were not to be permitted to convict the applicant of a greater offence, which encompassed facts for which he had not, and could not have, been convicted in minor-offence proceedings, the applicant would not be punished for the entirety of his conduct, taking into consideration all the facts and the overall level of his guilt. At the same time, even when the overlap in facts was only partial, the bifurcation of proceedings carried a risk of “double counting” of punishment and vexatious re-prosecution, both of which are contrary to the principle of ne bis in idem. Thus, even in such cases the Court must be satisfied that there has been, even if only partially, no duplication of trial or punishment ( bis ), as proscribed by Article 4 of Protocol No. 7 to the Convention. (iii) Whether there was a duplication of proceedings ( bis ) 39. As the Grand Chamber explained in A and B v. Norway (cited above, § 130), Article 4 of Protocol No. 7 does not preclude the conduct of dual proceedings, provided that certain conditions are fulfilled. In particular, for the Court to be satisfied that there is no duplication of trial or punishment ( bis ) as proscribed by Article 4 of Protocol No. 7, the respondent State must demonstrate convincingly that the dual proceedings in question were “sufficiently closely connected in substance and in time”. In other words, it must be shown that they were combined in an integrated manner so as to form a coherent whole. This implies not only that the purposes pursued and the means used to achieve them should in essence be complementary and linked in time, but also that the possible consequences of organising the legal treatment of the conduct concerned in such a manner should be proportionate and foreseeable for the persons affected (ibid., § 130). As regards the conditions to be satisfied in order for dual criminal and administrative proceedings to be regarded as sufficiently connected in substance and in time and thus compatible with the bis criterion in Article 4 of Protocol No. 7, the material factors for determining whether there was a sufficiently close connection in substance include: – whether the different proceedings pursue complementary purposes and thus addressed, not only in abstracto but also in concreto, different aspects of the social misconduct involved; – whether the duality of proceedings concerned was a foreseeable consequence, both in law and in practice, of the same impugned conduct ( idem ); – whether the relevant sets of proceedings were conducted in such a manner as to avoid as far as possible any additional disadvantages resulting from duplication of proceedings and in particular duplication in the collection as well as the assessment of the evidence, notably through adequate interaction between the various competent authorities to ensure that the establishment of the facts in one set of proceedings is replicated in the other; – and, above all, whether the sanction imposed in the proceedings which became final first was taken into account in those which became final last, so as to prevent the individual concerned from being in the end made to bear an excessive burden; this latter risk is least likely to be present where there is in place an offsetting mechanism designed to ensure that the overall amount of any penalties imposed is proportionate (ibid., §§ 131-32). Combined proceedings will more likely meet the criteria of complementarity and coherence if the sanctions to be imposed in the proceedings not formally classified as “criminal” are specific for the conduct in question and thus differ from “the hard core of criminal law (ibid., § 133). 40. In the present case, in 2006 the applicant was fined in the minor-offence proceedings for speeding. Before those proceedings were finalised, in 2005 the applicant was indicted under Article 272 of the Criminal Code for causing a road accident in which another person had died as a consequence of reckless driving. He was ultimately sentenced in those proceedings to a prison sentence in 2011. 41. Assessing the connection in substance between the minor-offence and criminal proceedings in the present case – as well as the different sanctions imposed on the applicant – the Court notes that the purpose of the minor-offence proceedings was to address the applicant’s failure to comply with road-traffic regulations, notably speeding, in order to ensure the smooth flow of traffic and prevent conduct endangering public safety (see paragraph 5 above). As the Government explained, this minor offence is aimed at discouraging all drivers from disregarding speed limits, irrespective of whether or not their conduct causes a road-traffic accident. The subsequent criminal proceedings against the applicant, on the other hand, were conducted precisely with the aim of addressing the consequence of his failure to comply with the speed limit, that is, to penalise his conduct which caused the death of a pedestrian (compare and contrast Gradinger, cited above, § 54). The Court therefore accepts that the two sets of proceedings pursued complementary purposes in addressing different aspects of the failure to respect road-traffic safety regulations, criminal proceedings being limited to offences which are particularly serious, such as reckless driving resulting in serious bodily injury or death (see paragraph 13 above). 42. The applicant asserted that the minor offences court had also punished him for the death of the pedestrian. While it is true that the Rijeka Minor Offences Court included the death of the pedestrian in the description of the facts of the case, it is clear from the text of its decision that the actual minor offences of which the applicant was found guilty related only to speeding (see paragraph 5 above). Under Croatian law, causing a death in a road-traffic accident cannot be prosecuted in minor-offence proceedings; instead, it is dealt with as a criminal offence that is subject to public prosecution by the State Attorney in criminal proceedings. Moreover, at the material time, dual-track punitive proceedings combining minor-offence proceedings and criminal proceedings formed part of the actions commonly taken to impose sanctions in accordance with clear and precise rules for failure to comply with road-traffic safety regulations and for reckless driving causing a fatal road-traffic accident (see paragraphs 12, 13 and 23 above). Therefore, the Court cannot accept the applicant’s contention that the dual proceedings and penalty had been an unforeseeable consequence of his conduct. 43. As to the manner of conducting the proceedings, the Court notes that the criminal court not only used certain evidence adduced before the Rijeka Minor Offences Court, but also inspected the case file from the minor-offence proceedings in its entirety (see paragraph 8 above). It can therefore be concluded that the interaction between the two courts was adequate and that the two sets of proceedings formed a coherent whole (see, a contrario, Kapetanios and Others v. Greece, nos. 3453/12 and 2 others, §§ 65-74, 30 April 2015, where the applicants had first been acquitted in criminal proceedings, and later on imposed with severe administrative fines for the same conduct). Consequently, the applicant has not suffered a disadvantage associated with the duplication of proceedings, beyond what was strictly necessary. 44. The Court further notes that, while the Rijeka Minor Offences Court issued the applicant with a fine in the amount of EUR 95 for speeding (see paragraph 5 above), the criminal court imposed a custodial sentence on him for reckless driving causing a fatal road-traffic accident. Although the criminal court did not expressly refer to the fine previously imposed by the Rijeka Minor Offences Court, the Court observes that it sentenced the applicant to one and a half years’ imprisonment, whereas at the material time the Criminal Code prescribed a maximum sentence for such an offence of up to five years’ imprisonment (see paragraph 31 above). In the Court’s view, when taken together the penalties imposed did not exceed what was strictly necessary in relation to the seriousness of the offences concerned. It cannot therefore be said that the applicant was made to bear an excessive burden (see the relevant criteria set out in A and B v. Norway, cited at paragraph 39 above). Rather, only once punishment for speeding had been complemented by the punishment for causing a fatal road-traffic accident did the applicant in the present case receive an effective, proportionate and dissuasive punishment for his conduct. In any event, the sole fact that the criminal court did not refer expressis verbis to the sanction imposed in the minor-offence proceedings might not of itself be sufficient to conclude that the proceedings were not interconnected in substance. 45. Finally, turning to the connection in time between the two proceedings, the Court notes that the minor-offence proceedings were instituted by the Rijeka police on 25 November 2004 (see paragraph 5 above), whereas the criminal indictment was filed by the Rijeka State Attorney’s Office some seven months later, on 9 June 2005 (see paragraph 7 above). Although the Court does not have in its possession the exact date of the commencement of the criminal investigation in respect of the applicant, it is clear from the bill of indictment that the applicant and a number of other witnesses had already been questioned prior to the lodging of the indictment. In other words, the two sets of proceedings must have been initiated at practically the same time (contrast Jóhannesson and Others v. Iceland, no. 22007/11, § 54, 18 May 2017, where the applicants had been indicted only 15 and 16 months after the decision of the tax authorities had been taken in their cases). The two sets of proceedings were then conducted in parallel for almost another fourteen months, when the Rijeka Minor Offences Court’s penalty notice became final, without an appeal having been lodged against it. The criminal proceedings against the applicant thereafter lasted another six years and ten months at four levels of jurisdiction, a period which, in the Court’s view, cannot of itself suffice to disconnect in time the minor-offence and the criminal proceedings (see, mutatis mutandis, A and B v. Norway, cited above, § 151; and contrast Kapetanios, cited above, § 67, where the delay between the conclusion of the two sets of proceedings had amounted to between 9 and 14 years; and Nodet v. France, no. 47342/14, §§ 52-53, 6 June 2019, where the Court found no sufficiently close substantive or temporal link between the two sets of proceedings). In particular, the additional lapse of time before the criminal courts cannot be considered disproportionate, abusive or unreasonable, taking into consideration that the penalty notice had been issued as a result of summary minor-offence proceedings, whereas the criminal proceedings, which by their nature are more complex, had been conducted before four court instances. In the above circumstances, the Court is satisfied that the two proceedings were sufficiently connected in time. 46. In conclusion, in the Court’s opinion, the aims of punishment, whereby different aspects of the same conduct are addressed, ought to be considered as a whole and have in the present case been realised through two foreseeable complementary sets of proceedings, which were sufficiently connected in substance and in time, as required by the Court’s case-law, to be considered to form part of an integral scheme of sanctions under Croatian law for failure to comply with road-traffic safety regulations and causing a traffic accident as a consequence. There was an adequate level of interaction between the two courts in these proceedings, and the punishments imposed, taken together, did not make the applicant bear an excessive burden, but were limited to what was strictly necessary in relation to the seriousness of the offence. In the light of the foregoing, the Court finds no abuse of the State’s right to impose a punishment ( jus puniendi ), nor can it conclude that the applicant suffered any disproportionate prejudice resulting from the duplication of proceedings and penalties. Rather, those proceedings and penalties formed a coherent and proportionate whole (see, mutatis mutandis, A and B v. Norway, cited above, §§ 112, 130 and 147). 47. There has accordingly been no violation of Article 4 of Protocol No. 7 to the Convention.
The Court held that there had been no violation of Article 4 § 1 of Protocol No. 7 in respect of the applicant. It noted in particular that the aims of punishment, whereby different aspects of the same conduct were addressed, ought to be considered as a whole. In the applicant’s case such aims had been realised through two complementary sets of proceedings, which were sufficiently connected in substance and in time to be considered to form part of an integral scheme of sanctions under Croatian law for his failure to comply with road-traffic safety regulations which had, as a result, caused a fatal road accident. The Court therefore found no abuse of the State’s right to impose a punishment in the applicant’s case. Nor could it conclude that the applicant had suffered any disproportionate prejudice resulting from the duplication of proceedings and penalties.