Defining the ne bis in idem principle under Article 4 of Additional Protocol 7 to ECHR

In the Zolotukhin case,80 the applicant alleged a violation of Article 4 of

Additional Protocol 7 (Article 4 of AP7) to the ECHR, complaining that he had

been prosecuted twice for the same offence. He was charged before the

administrative courts with a breach of public order, in the form of swearing at

and pushing away police officers, and he was charged before the criminal

courts with breaching public order, by uttering obscenities, threatening police

officers with violence and offering resistance to them.

The Grand Chamber heard the application after granting a referral of

the case. The Court admitted, at the outset, that there were a series of different

approaches regarding the interpretation of the provision in its case-law. Article

78

Allain, (note 73), 242-243ν Iέ Kolodizner, „R vέ Tangμ Developing an Australian Anti-Slavery Jurisprudence‟ (200λ) 31 Sydney L.Rev. 487, 496 (footnote 49).

79_{Interights‟ written submissions before the European Court in the Rantsev case, 3, available at}

http://www.interights.org/app/webroot/userimages/file/Rantsev_brief_%20FINAL_%2029Oct ober2008.pdf .

80

4 of AP 7 reads that „no one shall be liable to be tried or punished again in

criminal proceedings under the jurisdiction of the same State for an offence for

which he has already been finally acquitted or convicted in accordance with the

law and penal procedure of the State‟ (emphasis added)έ The Court‟s different

approaches reflected the different meanings attributed to the term „offence‟έ

According to the dominant position, the term „offence‟ should be understood

by reference to the legal classification under national law.81 Consequently, if an

act was classified as two distinct criminal offences under municipal law, the

prohibition under Article 4 of AP 7 did not come into play.

Although the Chamber did not make any reference to relevant PIL

norms in its judgment, the Grand Chamber revisited the definition of the term

„offence‟ by finding recourse to similarly drafted PIL norms envisaging

formulations of the ne bis in idem principle. Reference was made to the

respective provisions of the ICCPR, the Statute of the International Criminal

Court (ICC Statute),82 the Charter of Fundamental Rights of the European

Union (EU Charter),83 the Convention Implementing the Schengen Agreement

(Schengen Agreement)84 and the IACHR. The ICCPR and the EU Charter

contain the term „offence‟,85 _{the IACHR refers to „cause‟,}86

the Schengen

81

For an analysis of the different approaches see Zolotukhin (GC), [70]-[77]; P. van Dijk et al., Theory and Practice of the European Convention on Human Rights (Intersentia, Antwerpen- Oxford, 2006) 981-982.

82

Concluded 17 July 1998; entered into force 1 July 2002; 2187 UNTS 90.

83

Official Journal of the European Communities, 18.12.2000, C 364/1.

84

Convention Implementing the Schengen Agreement between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic, on the Gradual Abolition of Checks at their Common Borders (concluded on 14 June 1985; entered into force 19 June 1990).

85_{Article 14 (7) ICCPR provides that „no one shall be liable to be tried or punished again for}

an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country‟ν Article 50 EU Charter states that „no one shall be liable to be tried or punished again for an offence for which he or she has already been finally convicted or acquitted within the Union in accordance with the law‟ (emphases added)έ

Agreement mentions „acts‟87

and the ICC Statute prescribes „conduct‟έ88 The Court also emphasised that the jurisprudence of the European Court of Justice

(ECJ) and the Inter-American Court of Human Rights (IACtHR) followed a

more favourable to the individual approach. On this basis, it proclaimed that it

could not „justify adhering to a more restrictive approach‟,89

than the one

followed by the ECJ and the IACtHR, and that it must ensure practical and

effective rightsέ The Grand Chamber held that „offence‟ under the ECHR

should be understood as encompassing the same sets of facts as well.

This interpretation of the ne bis in idem principle as formulated under

AP 7 overrules the previous case-law of the Court. It dictates a different

definition of the term „same offence‟ and dramatically alters the scope of applicability of the provisionέ Whereas the Court‟s position was to refer back

to the national legislation and practice of the respondent State, the Zolotukhin

case deviates and establishes that Article 4 AP 7 should also include the same

set of facts. The judgment is informative with respect to the fact that the Court

invokes three different interpretative principles to justify its interpretation in a

distinct way: the evolutive interpretation, the principle of effectiveness and the

interpretation of the ECHR in light of PIL norms. Thus, the three autonomous

interpretation principles function as a synergy,90 leading to and reinforcing the

same interpretive outcome. The following Chapters will show that the Court

86

Article 8 (4) stipulates that „an accused person acquitted by a non-appealable judgment shall not be subjected to a new trial for the same cause‟ (emphasis added)έ

87_{Article 54 readsμ „a person whose trial has been finally disposed of in one of the Contracting}

Party may not be prosecuted in another Contracting Party for the same acts provided that […]‟ (emphasis added).

88_{Article 20 (1) readsμ „except as provided in this Statute, no person shall be tried before the}

Court with respect to conduct which formed the basis of crimes […]‟ (emphasis added).

89

Zolotukhin (GC), [80].

90

G. Cohen-Jonathan, J.-Fέ Flauss, „Cour Européenne des Droits de l‟ Homme et Droit International Général (2008)‟ (2008) LIV AFDI 529, 530.

invokes this synergetic relation between these principles of interpretation in

other instances as well.91 In such cases, the specificities of the ECHR – need for effective and practical guarantees and dynamic interpretation – harmoniously coexist with the principle of reading the ECHR in light of other

PIL norms. Yet, the driving force behind the Court‟s reasoning in Zolotukhin

was the construction of the ECHR in light of the PIL norms and the Court‟s

willingness to align its position with the jurisprudence of other international

courts.

Nonetheless, the Zolotukhin judgment reveals certain weak points in

the Court‟s methodologyέ Even though the Court placed the external PIL norms

into their specific treaty context and acknowledged that they embodied

different formulations of the principle ne bis in idem, it used them in an

inappropriate way in its interpretation of the ECHR. The strong inferences

drawn by the jurisprudence of the ECJ and the IACtHR on the pretext of the

most favourable to the individual interpretation are not reasonable. The two

international courts develop the Schengen Agreement and the IACHR

respectively, which define the ne bis in idem prohibition in broader terms to the

ECHR. When the ECJ and the IACtHR employed a comparative overview of

other PIL norms (an identical methodology to that of the ECtHR), they both

underlined that the text of their own treaties provided broader terms and this is

why they concluded that it would be absurd to follow a more restrictive

interpretation.92 Ironically, the ECtHR relied upon this practice in order to

provide a broad definition to the specific and restricted term „offence‟ under

91

Infra 7.2, 7.4, 7.5, Chapter 9.

92

Article 4 of AP 7. Therefore, the interpretation by analogy and the inspiration

drawn from the comparison are not sound.

A second weak point in the Grand Chamber‟s reasoning is that it gave

such extensive meaning to the term „offence‟ that it effectively disregarded the

textual limits of the Convention. The Court afforded such great weight to the

PIL norms, which resulted in a contra legem interpretation. The definition

attributed to the term „offence‟ went beyond the express text of the ECHRέ

Although the Court generally acknowledges in its case-law that the

interpretation of the ECHR should not lead to a „distortion of [its] language‟,93

in this instance, the limits between judicial law-making and interpretation are

blurred. The construction of the ECHR should not result in redrafting its

provisions. Furthermore, it appears that the Court in other instances (as in the

Scoppola and Mamatkulov cases) attempted to justify an interpretation of the

ECHR, which cannot be accommodated within the text of the Convention, by

way of invoking the synergy of the principle of effectiveness, the dynamic

interpretation and the need to take cognisance of other PIL norms.94 In the view

of the present author, this is not a positive example of constructive dialogue

among international courts or an opportunity to fill in gaps, but rather

unfortunate instances.95 All the more, since the text of the ECHR also delimits

the Court‟s jurisdiction, a distortion of the text raises the question of whether

93

Pretty v. United Kingdom, 29 April 2002, [39]; Johnston and others v. Ireland, 18 December 1986, (Plenary), [53]; Dissenting Opinion of Judge Myjer in Muñoz Díaz v. Spain, 8 December 2009, 27-28.

94

The Court followed the same methodology in Mamatkulov and Askarov v. Turkey, 4 February 2005, (Grand Chamber), [109]-[113], [123]-[125] and in Scoppola v. Italy (No 2), 17 September 2009 (Grand Chamber) infra 7.2.

95

Contra Forowicz, (note 41), 360-361ν Tέ Treves, „Judicial Lawmaking in an Era of “Proliferation” of International Courts and Tribunals: Development or Fragmentation of International Law?‟, in Rέ Wolfrum and Vέ Röben (edsέ), Developments of International Law in Treaty-Making (Springer, Berlin-Heidelberg-New York, 2005) 587, 614-615.

the Court exceeds the boundaries of its jurisdiction.96 In other words, as

Chapter 2 discussed on the occasion of the Oil Platforms case, the jurisdiction

of the Court and the clear text of the ECHR set clear limits to the impact that

other PIL norms may have on the construction of the ECHR.97

4.7 Conclusions

This Chapter demonstrated that the ECtHR is inclined to find recourse

to PIL norms in order to define certain terms embodied in the ECHR. Given

that the Convention and its Additional Protocols contain many generic terms,

without providing for their definitions, it seems natural that the Court looks for

guidance and interpretive aid outside the ECHR. The ECtHR identifies the

meaning of the terms under the ECHR by reference to the usage of the identical

or similar terms in other PIL norms, mostly international treaties. In most

cases, external PIL norms specifically govern the subject matter, such as

torture or slavery.

Evidence was provided that the Court‟s interpretive practice of taking PIL norms into account is autonomous to other interpretative principles in its

jurisprudence. The Vo and Evans cases illustrated that interpreting the ECHR

by taking cognisance of PIL should not be conflated with the comparative

interpretation. Even though the Court employs the European consensus idea,

domestic and PIL norms are different sources of law and different enquiries in

the examination of the existence or not of common standards. Also, these cases

demonstrated that when international developments and PIL norms are not

sufficient to validate a dynamic interpretation of the ECHR, the interpretation

96

Separate Opinion of Judge Verdross, in Golder v United Kingdom, 21 February 1975, (Plenary), 20-21.

97

of the ECHR by taking PIL norms in account limits the application of the

dynamic interpretation. The Zolotukhin case exemplified that taking

cognisance of PIL norms is a distinct principle to the principle of effectiveness

and the dynamic interpretation. Although the Court invoked all three principles

in a synergetic fashion, it deems it necessary to invoke them separately.

Crucially, in Zolotukhin, the driving force behind the Court‟s legal reasoning and in overruling its previous case-law was the cognisance of PIL norms. It is

of interest that the parties to the cases also frame their arguments with regard to

the relevant PIL norms. In Siliadin the applicant invited the Court to find that

the respondent States‟ legislation was in divergence with European and

international standards; in the Vo and Rantsev cases the NGOs, which

intervened before the Court, based their submissions on the PIL norms that the

Court should take into account.

From a methodological point of view, the Court does not invoke a

specific legal basis for its practice of drawing interpretative guidance from

other PIL norms when defining terms under the ECHR. As seen in Chapter 2,

international courts and tribunals are inclined to identify the ordinary meaning

of a term under a given treaty by taking other PIL norms into account,

especially treaties.98 Also, they do not invoke a specific legal basis in their

reasoning, taking for granted that examining the common use of a term by

States in PIL is an integral part of finding the ordinary meaning.99 Moreover,

the practices of drawing a contrario arguments (Vo), inferring analogies

98

Infra 2.3.1; R. Gardiner, Treaty Interpretation (Oxford University Press, Oxford, 2010) 283; Bέ Simma, Tέ Kill, „Harmonising Investment Protection and International Human Rights: First Steps towards A Methodology‟, in Cέ Binder et al. (eds.), International Investment Law for the 21st Century (Oxford University Press, New York, 2009) 678, 683-686.

99

Gardiner, (note 98), 282-284; F. Berman, „Treaty “Interpretation” in a Judicial Context‟ (2004) 29 Yale JIL 315, 318.

(Zolotukhin) or generally „borrowing‟ definitions from other PIL norms contributes to harmonisation of standards and ensuring consistent international

jurisprudence, as far as possible.

The Court is careful to place the PIL norms that it uses into the specific

treaty context that they originate from (Van der Mussele, Siliadin, Zolotukhin).

In practice, this means that it reads them in conjunction with the views (either

binding or not) of their (if existent) supervisory bodies. This is very

informative for identifying any contextual nuances tailored to the norms and

for taking cognisance of their progressive development by their supervisory

bodies. Although this practice does not seem to be easily accommodated by

Articles 31-33 VCLT,100 it is of seminal importance in avoiding divergent

interpretations and harmonising approaches. Notably, the Court is also

receptive to considering how a PIL norm has been interpreted by another

international court, which does not supervise a given instrument, such as in

Siliadin case in which it took cognisance of the ICTY approach on the meaning

of slavery under the Slavery Convention. These instances evidence what

Chapter 1 underlined, in that a treaty provision cannot be deprived of the

context, object and purpose of its treaty. Even if a definition of a term, which

the Court takes into account, refers to an identical or similar term found under

the ECHR, the Court gives careful consideration to the different treaty context.

Therefore, the Court reads harmoniously the ECHR to other PIL norms, subject

to important differences in their context.

The cautious consideration of the different treaty context draws the line

to the impact that the Court derives from other PIL norms. It appears that the

100

Court‟s position is that unity and harmonisation of standards are subject to

context. In Van der Musselle and Siliadin cases the Court applied the ILO

standards (meaning of unwillingness and requirement of being threatened) in

the construction of Article 4 ECHR by adapting them to the aims of the ECHR.

However, the Court adopts an unclear definition of „torture‟ under Article 3 ECHR with respect to the incorporation or not of the CAT purposive element.

The analysis showed that the Court should take a clear-cut position on the non-

incorporation of this element under the ECHR. It is argued that, given the

serious contextual differences between the CAT and the ECHR, it is reasonable

for the Court not to transplant the CAT definition.

Finally, the weight afforded to the PIL norms and the interpretative

principle of taking them into account should not result in exceeding the clear

limits of the text of the Convention, as the Court did in the Zolotukhin case.

This undermines the Court‟s reasoning and questions the boundaries of its

jurisdiction.

Section II: Restricting the scope of rights and freedoms under the

In document 'Fragmentation or unity of public international law’ revisited: analysing the European Convention on Human Rights when the European Court takes cognisance of public international law norms (Page 126-135)