13 July 2017

ECtHR ruling may inspire clarification of the double jeopardy principle in Dutch law

Dual proceedings (administrative sanctions alongside criminal prosecution) may constitute a violation of the principle of ne bis in idem, also known as double jeopardy. However, since the 2016 case of A and B v. Norway, this no longer seems to hold true in all situations. In this case, the European Court of Human Rights (ECtHR) created a new set of rules for the application of the double jeopardy principle; dual proceedings are not excluded as long as certain conditions are met. Following this ruling, the road appeared to be open for double sanctions, for example in tax cases in which tax authorities may impose an administrative fine in combination with a criminal prosecution for the same facts. In the recent ruling of Jóhannesson and others v. Iceland, the ECtHR applied this previous ruling for the first time. The outcome was, however, different, as the ECtHR ruled against Iceland for violating the principle of double jeopardy.

The principle of ne bis in idem, also known as double jeopardy, means that nobody should be prosecuted and punished twice based on the same facts. The prohibition of double jeopardy can be found in Article 4 of Protocol no. 7 to the ECHR (this protocol has not yet been ratified by the Netherlands) and also in Article 68 of the Dutch Criminal Code. The application of these recent ECtHR rulings could serve as an inspiration to Dutch lawmakers, and may even bring about a substantive change in the double jeopardy principle under Dutch law.

A and B v. Norway: a new set of rules
According to the Grand Chamber in A and B v. Norway, Article 4 of Protocol No. 7 does not exclude dual proceedings, provided that certain conditions are fulfilled. In this case dual proceedings were allowed. However, the dual proceedings must be sufficiently closely connected in both substance and time.

The factors for determining the existence of a sufficiently close connection with regard to substance include:

  • whether the different proceedings pursue complementary purposes and thus address different aspects of the misconduct involved
  • whether the duality of proceedings is a foreseeable consequence, both in law and in practice, of the conduct
  • whether the relevant sets of proceedings are conducted in such a manner as to avoid as far as possible any duplication in the collection or the assessment of the evidence, notably through adequate interaction between the various competent authorities to ensure that the establishment of facts used in one set of proceedings is also used in the other set
  • whether the first sanction imposed is taken into account in the proceedings which result in the second sanction, so as to prevent the individual concerned bearing an excessive burden. This risk is least likely to be present where there is an offsetting mechanism, designed to ensure that the total amount of penalties imposed is proportionate.

The extent to which the administrative proceedings bear the hallmarks of ordinary criminal proceedings is also relevant. Dual proceedings are more likely to be permitted if the administrative sanctions are specific for the conduct in question and if the administrative proceedings do not carry a significant degree of stigma.

In terms of the close connection in time, the court stated the following:

  • The two sets of proceedings do not necessarily have to be conducted simultaneously from beginning to end; the court stated that the proceedings do not have to become final at the same time, but the connection must be sufficiently close to prevent unnecessary delay and uncertainty. The weaker the connection in time, the greater the burden on the State to explain and justify any delay.

Jóhannesson and others v. Iceland
These principles concerning the close connection in substance and time were applied for the first time in Jóhannesson and others v. Iceland. In this case, the ECtHR ruled against Iceland for violating the principle of double jeopardy. The dual proceedings in this case did not meet the conditions necessary to permit dual proceedings as set out in A and B v. Norway.

Summary and facts
The applicants, two Icelandic nationals and an Icelandic company, were audited by the Directorate of Tax Investigations in Iceland, starting in 2003. Based on the Directorate’s reports, the Directorate of Internal Revenue found that the applicants had failed to declare significant payments and, therefore, re-assessed the applicants’ taxes and imposed surcharges, which became final in 2008. The director of tax investigations had also reported the case to the public prosecutor in 2004. In 2006, the applicants were informed of their status as suspects in a criminal investigation and in late 2008, the public prosecutor indicted the applicants for aggravated tax offences.

The Reykjavik District Court ruled that the offences were based on the same facts as the decisions of the tax authorities, and that the tax surcharges had involved a determination of a criminal charge. It therefore dismissed parts of the indictment, applying the principle of double jeopardy. Upon the public prosecutor’s appeal, the Supreme Court overturned the ruling on the basis that domestic law provided for two separate sets of proceedings for tax offences and that the case law of the ECtHR had not been clear on this issue. On remand, the District Court convicted the applicants.  In 2013, the Supreme Court upheld the convictions.

The applicants alleged that Article 4 of Protocol No. 7, which contains the principle prohibiting double jeopardy, had been violated. The fact that the surcharges qualified as criminal charges. or that the facts in both procedures were identical, was not disputed. The issue was whether or not there were two separate, cumulative procedures.

According to the government, the surcharge serves to ensure efficiency in the levy of taxes by deterring people from filing tax returns containing flaws or misstatements. The surcharge is effective and immediately applicable, making it appropriate to achieve this goal. The tax authorities said that they did not take a stand on the criminal character of the taxpayers’ actions, and the surcharges were deducted from the fines imposed in the criminal proceedings.

The Court agreed with the parties that the surcharges qualified as criminal charges and that the offences were the same in both proceedings. It then had to decide whether there was a duplication of proceedings.

Assessing the connection in substance
First, the Court assessed the connection in substance. The two proceedings pursued complementary purposes and the consequences were foreseeable. The surcharges were properly taken into account in determining the penalty in the criminal proceedings. However, issues arose regarding the third factor; even though the police had access to the tax authorities’ reports and documents from the tax audit, the investigations were performed by two different authorities and the cases were examined by different courts. The collection of evidence, as well as the proceedings, were largely independent of each other.

Assessing the connection in time
Secondly, the Court assessed the connection in time. The proceedings started in 2003 and ended in 2013. This was not the applicants’ fault; the proceedings were only conducted in parallel for about one year, from August 2006 until August 2007. The criminal indictments in 2008 came over a year after the tax decisions were issued, and almost a year after those decisions acquired legal force. After 2008, the criminal proceedings continued until 2013, separate from the tax authorities and their proceedings, which ended in 2007.

In A and B v. Norway, the total length of the proceedings was about five years, the criminal proceedings continued less than two years after the tax decisions had acquired legal force, and the indictments were only months apart. As a result, the proceedings were sufficiently closely connected in time.

Conclusion of this judgment
According to the judgment in the Jóhannesson case, all of the above, in particular the limited overlap in time and the largely independent collection and assessment of evidence, led to the conclusion that these dual proceedings did not meet the requirements and conditions that were set out in A and B v. Norway. The applicants suffered disproportionate prejudice because they were tried for the same offence by different authorities in different proceedings, which were not sufficiently closely connected in either substance or time. Therefore, Article 4 of Protocol No. 7 to the Convention had been violated.

This case seems to indicate that A and B v. Norway is to be interpreted restrictively and that the bar for meeting the conditions is set relatively high. The application of the recent ECtHR rulings could serve as an inspiration, and may even bring a substantive change in the explanation of the double jeopardy principle under Dutch law.