Article 50 - Right not to be tried or punished twice in criminal proceedings for the same criminal offence
Key facts of the case:
The constitutional legitimacy question was raised by the Ordinary Court of Monza during a judicial proceeding involving a private citizen charged with tax evasion. The subject was convicted both by an administrative Court and a criminal Court of the same fiscal offence. According to the subject, the imposition of a double penalty for the same offence represents a violation of the ne bis in idem principle enshrined both in national legislation (art. 649 of the Italian Criminal Procedure Code) and international law (art. 4 of the Protocol No. 7 of the ECHR and thus indirectly art. 117.1 of the Italian Constitution).
Key legal question raised by the Court:
According to Italian legislation, the subject – despite being already condemned to an administrative sanction – has to undergo a criminal proceeding as well for the same offence, thus violating – according to the Ordinary Court of Monza - art. 4 of the Protocol No. 7 of the ECHR and thus indirectly the art. 117.1 of the Italian Constitution. It is also worth considering that the ne bis in idem principle – enshrined in art. 649 of the Italian Criminal Procedure Code – only applies to the criminal justice, thus leaving a gap in the discipline concerning the interaction between judicial proceeding of a different nature, such as the relationship between criminal and administrative proceedings. For this reason, the Ordinary Court of Monza asked the Constitutional Court to assess the legitimacy of the legislation in force, considering its compliance with international Law.
Outcome of the case:
According to the Constitutional Court the legislation in force must be considered constitutionally legitimate. The Court retraced the way national, EU and international law rule the ne bis in idem principle: this discipline does not prevent the possibility for the subjects to be involved in more than one judicial proceeding for the same offence; it requires these proceedings to be sufficiently closely connected in substance and in time, meaning that they must be not necessarily contemporary but consecutive and that they pursue the same goal, ruling different sides of the same offence and that each sanction is decided considering the others already imposed. The Court mentioned in particular the innovative interpretation of the above-mentioned principle conveyed by the ECHR decision A&B v. Norway (paragraph 132). Considering the retraced discipline, the Constitutional Court asked the Ordinary Court of Monza to return to the proceeding and come to a decision considering the provided interpretation.
“In the context of the EU law ... since the Member State is required to contrast specific conducts, the efficacy of the ne bis in idem principle - based on art. 50 of the EU Charter of Fundamental Rights, proclaimed in Nice on 7 December 2000 and, in its adapted version, on 12 December 2007 in Strasbourg – depends on the assessment of the effective, proportionate and deterrent nature of the sanctions. If the sanction is deemed inadequate by the Court, it might decide to proceed with an additional proceeding even if the previous one was concluded .., the limit to the efficacy of the ne bis in idem principle thus described paves the way to the judicial assessment of the interaction of the applied sanctions ; assessment that consequently compromises the mere judicial nature of the principle itself”
“Nell’ambito del diritto dell’Unione … a fronte di un obbligo a carico dello Stato membro di repressione di certe condotte, l’efficacia del divieto di bis in idem basato sull’art. 50 della Carta dei diritti fondamentali dell’Unione europea, proclamata a Nizza il 7 dicembre 2000 e, in una versione adattata, il 12 dicembre 2007 a Strasburgo, è subordinata ad una verifica sul carattere effettivo, proporzionato e dissuasivo delle sanzioni applicate. Qualora la risposta sanzionatoria fosse sotto tale verso inadeguata il giudice potrebbe procedere nel secondo giudizio anche se il primo fosse già esaurito … il limite all’efficacia del ne bis in idem così descritto apre la strada ad una valutazione sul peso combinato delle sanzioni applicabili in due separate sedi; valutazione che incrina la portata meramente processuale della regola”