The ECHR found a violation of the requirements of Article 4 of Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms.

Заголовок: The ECHR found a violation of the requirements of Article 4 of Protocol No. 7 to the Convention for the Prot Сведения: 2018-07-25 07:42:44

ECHR Ordinance of 18 May 2017 in the case of Johannesson and Others v. Iceland (application No. 22007/11).

In 2011, the applicants were assisted in preparing the application. Subsequently, the application was communicated to Iceland.

In the case, a complaint was successfully considered to bring the applicants to administrative and criminal responsibility for the same acts. The case involved violation of the requirements of Article 4 of Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms.

 

CIRCUMSTANCES OF THE CASE


From the first and second applicants, additional taxes were collected in the administrative proceedings for evading the declaration of certain revenues in their tax returns. In subsequent criminal proceedings, they were convicted of crimes in connection with the same violations, and they were sentenced to imprisonment conditionally and fine. When determining the amount of the fine, additional taxes were taken into account. In the conventional proceedings, the applicants complained under Article 4 of Protocol No. 7 to the Convention that they had been tried and punished twice for the same offense.


ISSUES OF LAW


The Court is convinced that the crimes for which the applicants were convicted and convicted were based on the same set of facts on the basis of which additional taxes were collected. Further, he considered the question of whether there was a backlog of judgment and punishment. In this respect, he recalls that the dual proceedings on the basis of, as in the case of the applicants, both criminal and administrative law were not prohibited by Article 4 of Protocol No. 7 to the Convention, if the respondent Government could convincingly prove that the two proceedings were "sufficiently closely are related in substance and in time "(see A and B v. Norway, judgment of the Grand Chamber of the European Court of 15 November 2016, applications Nos. 24130/11 and 29758/11) .

This criterion was not observed in the present case. First, with regard to substantive communication, the Court recognized that the two proceedings pursued complementary objectives, the consequences of the applicants' actions were predictable and, since additional taxes were assessed with fines, the sanctions already imposed in the tax proceedings were sufficiently taken into account when imposing punishment in criminal proceedings. However, with regard to the collection of evidence, which is an important factor in assessing the merits, despite the access to the reports of investigators, tax authorities and documents collected during the tax audit, the police investigating the criminal case conducted its own independent investigation, which culminated in the conviction of the applicants The Supreme Court.

The actions of the applicants and their liability on the basis of various provisions of tax and criminal law were examined by various bodies and courts in proceedings that were largely independent of one another.

Secondly, with regard to communication over time, it must be sufficiently close to protect a person from exposure to uncertainty and delays and from extending the trial. In the applicants' cases, the total length of the two proceedings was about nine years and three months, with parallel proceedings for a year with a small one. The applicants were charged only 15-16 months after the decisions of the tax authorities in the administrative proceedings, and they were convicted only about four years after these decisions. The decision of the Supreme Court (which was left unchanged by the convictions of the applicants and to which the first applicant was further convicted) was rendered even more than a year later. The authorities of the respondent State did not explain these delays.

Accordingly, considering, in particular, a limited coincidence in time and predominantly independent collection and assessment of evidence, there was not a sufficiently close relationship between the substance and the time between the tax and criminal proceedings that would make them compatible with the criterion bis.11 of Article 4 of Protocol No. 7 to the Convention.

 

DECISION


The case involved violation of the requirements of Article 4 of Protocol No. 7 to the Convention (unanimously adopted).


COMPENSATION


In the application of Article 41 of the Convention. The Court awarded EUR 5,000 in respect of non-pecuniary damage to the first applicant and EUR 10,000 to the second applicant, the finding of a violation constitutes sufficient fair compensation for any pecuniary damage.

 

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