Acquittal for smuggling. Decision of an administrative appeal court that the acquitted person committed the offence. Appeal to the ECHR. Subsequently, the CoE overturned the decision and vindicated the applicant. Following this development, no finding of violation of the presumption of innocence
JUDGMENT
Venieris v. Greece 18.04.2024 (app. no. 62048/15)
SUMMARY
The applicant was irrevocably acquitted by the criminal court of first instance on the grounds that the facts could not justify the subjective nature of the smuggling. However, by decision of the customs authority, the applicant was fined an administrative fine of EUR 3,885,000 for breach of the customs legislation on smuggling. He brought an appeal which was dismissed because the Administrative Court of Appeal held that the imposition of the administrative fine for the customs offence was independent of the criminal offence and that it was not bound by the previous acquittal, but only obliged to take it into account in its assessment.
Subsequently, and after the applicant filed an appeal to the ECtHR in 2015 for violation of the presumption of innocence by the Administrative Court of Appeal of Thessaloniki, the CoE, following an appeal, reversed the decision of the Administrative Court of Appeal and annulled the fine and the joint and several liability imposed on him, as the company’s representative, for the customs violation of smuggling.
The ECtHR found that the CoE did not acknowledge that the statement contained in the decision of the Administrative Court of Appeal violated the applicant’s presumption of innocence, nor was any attempt made to correct this. However, taking into account the context of the proceedings as a whole and its particularities, the Court held that the CoE annulled the decision of the Administrative Court of Appeal, as well as annulled the fine imposed on the applicant for the customs offence of smuggling, with direct reference to his acquittal. In these circumstances, the Court found that there was no indication of a violation of the applicant’s presumption of innocence under Article 6 § 2 of the ECHR.
PROVISION
Article 6 par. 2
PRINCIPAL FACTS
The applicant was the legal representative and administrator of the company “Venieris & Sia-Nautiko Praktoreio EPE” (hereinafter “the company”), a shipping agency. Following a customs check, large amounts of undeclared cigarettes were found in the company’s containers, placed at a terminal. Criminal proceedings were initiated against the applicant and the customs broker. By judgment no. 2023/2002 of the Thessaloniki Criminal Court of First Instance, both were acquitted of the criminal offence of smuggling. The court held in particular that the facts, as established by the evidentiary procedure, could not justify the subjective element of smuggling, on the grounds that the applicant and the customs broker were under a misapprehension as regards the objective element of smuggling.
By decision no. 261/99 of 31 January 2005, the customs authority imposed on the applicant an administrative fine of 3,885,000 euros (EUR) pursuant to Article 89 § 2 of Law no. 1165/1918 (Customs Code) for having infringed customs legislation on smuggling and held him jointly liable for the payment of a fine of EUR 5,637.76 which was imposed on the customs broker. It also held the company jointly civilly liable for the payment of the total amount of the fines of EUR 3,900,637.76.
The applicant lodged a recourse against the customs authority decision which was dismissed by judgment no. 3046/2014 of the Thessaloniki Administrative Court of Appeal issued on 31 December 2014, which held that the applicant had committed the customs offence of smuggling. In particular, as regards the ground that the applicant had been previously acquitted of the criminal offence of smuggling by a final judgment, the appellate court held that the imposition of the administrative fine for the customs offence was independent from the criminal offence and that the administrative court was not bound by the previous acquittal, other than being obliged to take it into consideration in its assessment.
The company also lodged a recourse (προσφυγή) against the customs authority decision, which was dismissed by judgment no. 3047/2014 of the Thessaloniki Administrative Court of Appeal, issued on 31 December 2014 and served on the company on 11 June 2015. This judgment assessed the facts of the case and ruled that it had been correctly considered that the applicant, administrator of the company, had committed the customs offence of smuggling, as confirmed by judgment no. 3046/2014. It noted that the applicant’s acquittal in criminal proceedings was based on the grounds that the facts of the case had not justified the subjective element of smuggling, as the applicant and the customs broker were under a misapprehension as regards the objective element of smuggling. It then held that, as the applicant held principal liability for the customs offence of smuggling, all the conditions were met for the company to be held jointly liable for the payment of the total amount of EUR 3,900,637.76.
On 29 July 2015 the applicant appealed on points of law against judgment no. 3046/2014 relying on a violation of the ne bis in idem principle and of the presumption of innocence and on Kapetanios and Others v. Greece (nos. 3453/12 and 2 others, 30 April 2015). On the same date the company also appealed on points of law against judgment no. 3047/2014 relying on a violation of the ne bis in idem principle and on the same Court judgment.
On 10 December 2015 the applicant lodged an application before the Court. He complained of judgment no. 3047/2014, which concerned the recourse of the company against customs authority decision no. 261/99 holding it jointly civilly liable for the payment of the administrative fines. According to the applicant, by stating that he had committed the customs offence of smuggling, the judgment did not respect the presumption of innocence under Article 6 § 2 of the Convention in view of his acquittal for the same facts by judgment no. 2023/2002 in criminal proceedings.
- Subsequent developments
On 29 April 2020 the Supreme Administrative Court, ruling on the applicant’s appeal on points of law, noted in judgment no. 801/2020 that the applicant had relied on his acquittal in criminal proceedings by final judgment no. 2023/2002 of the Thessaloniki Criminal Court of First Instance and held that the continuation of the administrative proceedings on the imposition of the administrative fine could not be justified following that acquittal. It further held that, as the impugned appellate court’s judgment no. 3046/2014 had indirectly considered that the ne bis in idem principle was not applicable in the case, the ground of appeal that the judgment was contrary to Kapetanios and Others was admissible and well-founded. It therefore quashed judgment no. 3046/2014 and accepted the applicant’s recourse. It cancelled the fine of EUR 3,885,000 imposed on the applicant and the finding of joint liability in the amount of EUR 5,637.76.
On 29 April 2020 the Supreme Administrative Court in judgment no. 802/2020, ruling on the company’s appeal on points of law, considered that the joint liability attributed to the company had an accessory nature as it was based and conditional on the imposition of the fine on the company’s legal representative. It then held that in view of judgment no. 801/2020 which, finding a violation of the ne bis in idem principle, cancelled the fine imposed on the applicant as the company’s legal representative, the joint liability attributed to the company should also be cancelled. It then partially accepted the company’s appeal on points of law and quashed judgment no. 3047/2014 in so far as it held the company jointly liable for the payment of the fine of EUR 3,885,000 which had been imposed on the applicant. It then accepted the company’s recourse and cancelled decision no. 261/99 in so far as the company was held jointly liable for that amount.
THE DECISION OF THE COURT…
The Court notes that the Government raised the objections that the application is abusive, that the applicant lacks victim status and that he failed to exhaust domestic remedies. It does not consider it necessary to examine these objections as the application is in any event inadmissible for the reasons stated below.
The general principles as regards the protection afforded by the presumption of innocence under Article 6 § 2 when judicial decisions are taken following the conclusion of criminal proceedings are summarised in Allen v. the United Kingdom ([GC], no. 25424/09, §§ 95-102, ECHR 2013). In particular, as regards the applicability of Article 6 § 2 and the protection of the presumption of innocence in cases where administrative courts confirmed the imposition of fines for the customs offence of smuggling while the persons on whom those were imposed had been acquitted by the criminal courts of the offence of smuggling, the Court refers to Kapetanios and Others.
The Court further reiterates that in accordance with Article 89 § 2 of Law no. 1165/1918 (Customs Code), it is qualified as a customs offence of smuggling to move goods into or out of the State without the payment of the customs duties or other taxes as a result of which the State fails to recover the relevant duties and taxes. This is subject to a fine (πολλαπλό τέλος), independently of whether the conditions of the criminal offence of smuggling are met.
In Kapetanios and Others (cited above), the Court held that the administrative fines imposed were criminal in nature and that the administrative proceedings relating to their imposition concerned a second “offence” originating in identical acts to those forming the subject matter of an acquittal which had taken place in criminal proceedings for the offence of smuggling and had become final. It thus found a violation of the ne bis in idem principle under Article 4 of Protocol No. 7 to the Convention. The Court also held that, after assessing the material in the case files in a different manner from the criminal courts, the administrative courts had held that the applicants had committed the same offence of smuggling of which they had previously been criminally acquitted by the criminal courts. Given the similar nature of the two sets of proceedings, the facts involved and the constituent elements of the offences concerned, the findings of the administrative courts had breached the right to be presumed innocent.
As the Court has previously held, where the use of certain language may give rise to concern for respect for the presumption of innocence it is important for it, when examining the context of the proceedings as a whole and its specific features, whether the higher courts expressly engaged with this issue. It is settled case-law that the Court will assess whether the higher courts rectified problematic language used by the lower courts such as to eliminate a possible issue under Article 6 § 2. It has found a violation of Article 6 § 2 in cases where it concluded that the higher courts had either failed to rectify the “error” made by the lower court (see, for example, Matijašević v. Serbia, no. 23037/04, § 47, ECHR 2006-X, and Avaz Zeynalov v. Azerbaijan, nos. 37816/12 and 25260/14, § 71, 22 April 2021) or had failed both to acknowledge such an error and to rectify it (see, for example, Grubnyk v. Ukraine, no. 58444/15, § 146, 17 September 2020, and Vardan Martirosyan v. Armenia, no. 13610/12, § 88, 15 June 2021).
In the present case, the Thessaloniki Administrative Court of Appeal in judgment no. 3047/2014 ruled that it had been correctly considered that the applicant had committed the customs offence of smuggling while he had been previously acquitted for the relevant criminal offence.
Even if this statement could be considered as disregarding the presumption of innocence established by acquittal judgment no. 2023/2002 of the Thessaloniki Criminal Court of First Instance, the Court notes the following: subsequently to the applicant’s application before the Court, judgment no. 801/2020 of the Supreme Administrative Court quashed judgment no. 3046/2014, accepted the applicant’s recourse and cancelled the fine and the joint liability attributed to him, as the company’s representative, for the customs offence of smuggling ; additionally, judgment no. 802/2020 of the Supreme Administrative Court considered the cancellation of the fine imposed on the applicant by judgment no. 801/2020 and the accessory nature of the liability of the company, and quashed judgment no. 3047/2014 in so far as it concerned its joint liability for the payment of the fine imposed on the applicant.
The Court notes that the Supreme Administrative Court did not take a stance on whether the appellate court’s reasoning was consistent with the presumption of innocence (contrast with Orr v. Norway, no. 31283/04, § 54, 15 May 2008), nor did it reproduce the statement. That court chose merely to consider the appeal on points of law on the basis of the grounds relied upon, namely the infringement of the ne bis in idem principle, and quashed the impugned judgment. Moreover, the Supreme Administrative Court’s judgment no. 802/2020 was consistent with its judgment no. 801/2020: as the fine imposed on the applicant was cancelled, it followed that the joint liability of the company, which had an accessory nature, should also be cancelled.
The Supreme Administrative Court did not specifically rectify the statement of the appellate court’s judgment of which the applicant complains in relation to the presumption of innocence, namely that he committed the customs offence of smuggling. Rather, it accepted the company’s appeal on points of law which relied on a ground of appeal of a violation of the ne bis in idem principle and quashed the appellate court’s judgment. However, this state of affairs does not allow the Court to read judgment no. 3047/2014 as an affirmation imputing “criminal” liability to the applicant.
It is true that it was not acknowledged that the statement contained in judgment no. 3047/2014 was in breach of the presumption of the applicant’s innocence, nor was any attempt made to rectify this at any stage of the proceedings. Given however the context of the proceedings as a whole and their special features, the Court is satisfied that judgment no. 3046/2014 was quashed and the fine imposed on the applicant for the customs offence of smuggling was cancelled, with direct reference to the applicant’s acquittal. In these circumstances, the Court considers that there is no appearance of a violation of the applicant’s rights under Article 6 § 2 of the Convention.
Accordingly, the application is manifestly ill‑founded and should be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
