Double conviction by administrative and criminal court for the same act of bodily harm! Violation of the principle ne bis in idem
JUDGMENT
Tsonyo Tsonev v. Bulgaria 06.04.2021 (app. no. 35623/11)
SUMMARY
The case concerned a complaint relating to the imposition of an administrative fine and a sentence
of eighteen months’ imprisonment, essentially for the same offence. An initial judgment was
delivered by the Court on 14 January 2010: Tsonyo Tsonev v. Bulgaria (no. 2).
The Court noted that the Bulgarian authorities had examined the applicant’s case after the Court’s
judgment of 14 January 2010 finding a violation of Article 4 of Protocol No. 7 to the Convention.
However, they had not recognised the need to uphold the ne bis in idem principle and had dismissed
the applicant’s objections finding that there had been no repetition of proceedings in respect of the
same matter.
The Court observed that, as there had not been a sufficiently close connection in substance between
the administrative and the criminal proceedings, the two sets of proceedings could not be regarded
as part of an integrated scheme of sanctions in domestic law for the punishment of the applicant’s
socially unacceptable conduct. He had thus been tried and punished twice for the same offence in
breach of his right under the ne bis in idem principle and the authorities had not recognised their
failure to uphold this right in the second examination of his case.
PROVISION
Article 4 of Protocol No. 7
PRINCIPAL FACTS
The applicant, Mr Tsonyo Ivanov Tsonev, is a Bulgarian national who was born in 1977 and is
currently imprisoned in Troyan (Bulgaria).
In administrative proceedings and subsequent criminal proceedings, the applicant was given an
administrative fine and sentenced to eighteen months’ imprisonment, for having, on 11 November
1999, physically assaulted G.I. at his home. Further to a previous application (no. 2736/03) the Court,
in the Tsonyo Tsonev v Bulgaria (no. 2) judgment delivered on 14 January 2010, found a violation of
Article 4 of Protocol No. 7.
Pursuant to Article 422 of the Code of Criminal Procedure (CCP) the Prosecutor General asked the
Supreme Court of Cassation to reopen the criminal proceedings against Mr Tsonev. On 27 October
2010 that court granted the Prosecutor General’s request and referred the case back to the appeal
court, the Gabrovo Regional Court. Before the Regional Court Mr Tsonev argued that the criminal proceedings should have been discontinued in the light of the ne bis in idem principle. He explained that he had been punished for the same acts in administrative proceedings which were “criminal” in
nature within the autonomous meaning given to that term by the settled case-law of the European
Court of Human Rights.
On 23 December 2010 the Regional Court upheld Mr Tsonev’s sentence of eighteen months’
imprisonment in a final judgment. It found that the facts of the case had been established by the
evidence gathered during the criminal investigation and that the punishment had been fair. The
court pointed out that domestic law did not provide for the possibility of discontinuing subsequent
criminal proceedings when the convicted person had previously been punished for the same acts by
an administrative sanction. The Regional Court considered that in these circumstances it was for the
regional prosecutor’s office to request the reopening of the administrative proceedings.
On 15 February 2011 a prosecutor from the Gabrovo regional prosecutor’s office refused to seek the
reopening of the administrative proceedings. He noted that the criminal proceedings had been
conducted in respect of the bodily harm that Mr Tsonev had inflicted on the victim, whereas the
administrative proceedings had been initiated because he had entered the victim’s home and
beaten her. The prosecutor considered that this did not therefore amount to a repetition of the
same proceedings, but rather to dual proceedings in respect of a combination of two offences.
Mr Tsonev lodged a fresh appeal, seeking to have the criminal proceedings reopened. The Supreme
Court of Cassation dismissed this appeal, pointing out that under domestic law the imposition of an
administrative sanction did not preclude the subsequent criminal conviction of the same person for
the same acts.
In the context of the monitoring of the execution of the 14 January 2010 judgment in Tsonyo Tsonev
v. Bulgaria (no. 2), the Government notified the Council of Europe’s Committee of Ministers about
the individual and collective mesures taken at domestic level. The Committee of Ministers was thus
informed, in particular, that the criminal proceedings against the applicant had been reopened, that
his criminal conviction had been upheld by the domestic authorities, that no request for the
reopening of the administrative proceedings had been made by the regional prosecutor’s office; and
lastly, that the domestic law and practice had been amended such as to permit the application of the
ne bis in idem principle in the event of parallel administrative and criminal proceedings.
The Council of Europe’s Committee of Ministers closed its examination of the case by adopting
Resolution ResDH(2017)408, which declared that the Government had discharged their duties under
Article 46 § 2 of the Convention and that its examination was closed .
Relying on Article 4 of Protocol No. 7 (right not to be tried or punished twice) the applicant
complained that he had been tried and punished twice for the same offence.
THE DECISION OF THE COURT….
Article 4 of Protocol No. 7
The Court acknowledged the existence in the present case of new facts that it had not had to
examine in connection with application no. 2376/03, given that they post-dated the adoption of its
final judgment in the above-mentioned Tsonev case and were capable of giving rise to a fresh breach
of the same provision.
The applicant’s conduct during a row which took place on 11 November 1999 had led to two
separate sets of proceedings. On 12 November administrative proceedings had been opened and he
had ultimately been fined 50 Bulgarian levs (BGN). Criminal proceedings had also been brought
against him and he had been sentenced to eighteen months’ imprisonment by the Regional Court on
23 December 2010.
The Court referred back to its previous judgment Tsonyo Tsonev v. Bulgaria (no. 2) where it had
noted that the two sets of proceedings had concerned “criminal charges” and that they had both
resulted in sanctions for essentially the same acts. They had also both been brought simultaneously
and had continued in parallel until the closure of the administrative proceedings on 27 November
1999. The criminal proceedings had subsequently been reopened following the Court’s judgment
and had ended in December 2010.
In the Court’s view, the administrative proceedings and the criminal proceedings had essentially
pursued the same aim, namely to punish the applicant’s socially unacceptable conduct in the context
of a row on 11 November 1999. The establishment of the facts in the administrative proceedings had
not been taken into account in the criminal proceedings, where only the evidence gathered in the
criminal investigation had been used. Nor had the administrative fine been taken into account by the
criminal courts in determining the appropriate sentence. In the light of those factors, the Court
found that there had not been a sufficiently close connection in substance between the
administrative and the criminal proceedings.
The Court considered that it had to take account of a specific aspect of the present case: it was the
applicant’s second consecutive application complaining of a violation of the ne bis in idem principle,
after application no. 2376/03. When the Bulgarian authorities had examined the applicant’s case
after the Court’s judgment of 14 January 2010 finding a violation of Article 4 of Protocol No. 7 to the
Convention, they had not recognised the need to uphold the ne bis in idem principle and had
dismissed the applicant’s objections finding that there had been no repetition of proceedings in
respect of the same matter. Thus the authorities of the respondent State had not upheld the
standards established by the Court to ensure compliance with this principle, and had not secured the
applicant’s right not to be tried and punished twice for the same offence.
In conclusion, as there had not been a sufficiently close connection in substance between the two
sets of proceedings, they could not be regarded as part of an integrated scheme of sanctions in
domestic law for the punishment of the applicant’s socially unacceptable conduct. He had thus been
tried and punished twice for the same offence in breach of his right under the ne bis in idem
principle and the authorities had not recognised their failure to uphold this right in the second
examination of his case.
There had thus been a violation of Article 4 of Protocol No. 7 to the Convention.
Article 46
In the particular circumstances of the present case, the Court did not consider it necessary to
indicate the general measures that the State should adopt in order to execute this judgment. It
observed that, as reported to the Committee of Ministers in the context of the execution of the
Tsonyo Tsonev v. Bulgaria (no. 2) judgment, the respondent State had made changes to its domestic
law and practice in order to bring its legislation into line with Article 4 of Protocol No. 7 to the
Convention, as interpreted in the Court’s case-law.
As regards individual measures, the Court reiterated that where the national authorities had brought
two sets of proceedings but had recognised a breach of the ne bis in idem principle and had
subsequently provided appropriate relief, for example by closing or annulling the second set of
proceedings and making reparation for any consequences, it might consider that the applicant no
longer had “victim” status.
The Court observed that the present case concerned not a finding of a violation of the right to a fair
trial but a failure to observe the ne bis in idem principle.
In view of the seriousness of the facts at issue, the Court acknowledged that the Bulgarian
authorities might have a legitimate interest in maintaining the criminal sanction imposed on the
applicant. In addition, as had been shown in the Government’s submissions, the destruction of the
administrative file appeared to make it impossible in practice to reopen the administrative
proceedings.
In the light of these considerations, the Court concluded that the finding of a violation of Article 4 of
Protocol No. 7 in the present case could not in itself be regarded as imposing on the respondent
State an obligation under the Convention to reopen either of the two sets of proceedings against the
applicant.
Just satisfaction (Article 41)
The Court held, by five votes to two, that the finding of a violation of Article 4 of Protocol No. 7
constituted sufficient just satisfaction in respect of any non-pecuniary damage sustained by the
applicant.
Separate opinion
Judges Eicke, Kucsko-Stadlmayer and Schukking expressed a joint separate opinion which is annexed
to the judgment
