CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ TWICE ABOUT NE BIS IN IDEM : CONFLICTING APPROACH OF EUROPEAN COURTS … was […] tried or punished for nominally different offences. The Court […] notes that there are cases where one act, at first sight, appears to constitute more than one offence, whereas a closer examination shows that only one offence should be prosecuted because it encompasses all the wrongs contained in the others […]. Thus, where different offences based on one act are prosecuted consecutively, one after the final decision of the other, the Court has to examine whether or not such offences have the same essential elements ”. 11 Even though the Franz Fischer judgement seemed to have definitively settled the problem of idem , the ECtHR rather surprisingly 12 shifted its approach again (and presumably, finally) in the Grand Chamber Zolotukhin judgement. 13 Even though the facts of the case were rather complicated, in essence Mr. Zolotukhin, while drunk, was at different places verbally offensive to different police officers and threatened them with physical violence. He was first sentenced for an administrative offence, consisting in swearing in a public place (police station) to the police officers who first interrogated him (Ms. Y and Captain S), and later in criminal proceedings. In that, he was convicted for swearing at a superior police officer (Major K), who was drafting a report on his administrative offence, physically insulting him (by spitting on him) and threatening him with violence (to kill him); the criminal court also investigated Mr. Zolotukhin’s swearing at Ms. Y and Captain S, but it ultimately dismissed these charges. 14 The ECtHR admitted that different approaches of its judgments to the question of idem produce legal uncertainty, and the Grand Chamber thus needs to harmonise the interpretation thereof; it concluded that only the identity of facts ( faits identiques ) is decisive: “[T]he approach which emphasises the legal characterisation of the two offences is too restrictive on the rights of the individual, for if the Court limits itself to finding that the person was prosecuted for offences having a different legal classification it risks undermining the guarantee enshrined in Article 4 of Protocol No. 7 […]. Accordingly, the Court takes the view that Article 4 of Protocol No. 7 must be understood as prohibiting the prosecution or trial of a second “offence” in so far as it arises from identical facts or facts which are substantially the same . […] The Court’s inquiry should therefore focus on those facts which constitute a set of concrete factual circumstances involving the same defendant and inextricably linked together in time and space […]”. 15 Concerning the actual facts of the case, the ECtHR concluded that the conduct of Mr. Zolotukhin did not constitute a single offence: “in the first episode the applicant swore at Ms Y. and Captain S. on the premises of the passport office, whereas in the second and third episodes he insulted Major K., first in his office and then in the car, and threatened him with violence. Hence, there was no temporal or spatial unity between the three episodes . It follows that although in essence the applicant’s conduct was substantially similar during the entire day of 4 January 2002 – in that he continued to be 11 Ibid , par. 25. 12 See eg. NEAGU, N., The Ne Bis in Idem Principle in the Interpretation of European Courts: Towards Uniform Interpretation . Leiden Journal of International Law , 2012, p. 955. 13 ECtHR judgement of 10 February 2010 Sergey Zolotukhin v. Russia , app. no. 14939/03. 14 The court acquitted Mr. Zolotukhin of criminal charges consisting in swearing at Ms. Y and Captain S. 15 Ibid , par. 81, 82 and 84; emphasis added.

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