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issued by the Registrar of the Court

ECHR 195 (2016)

09.06.2016

Violation of the right not to be tried twice for the same offence

and breach of the presumption of innocencein cases involving accusations of smuggling

In todays Chamber judgment1 in the case of Sismanidis and Sitaridis v. Greece (applications

nos. 66602/09 and 71879/12) the European Court of Human Rights held, unanimously, that there

had been:

a violation of Article 4 of Protocol No. 7(right not to be tried or punished twice) to the European

Convention on Human Rights as regards Mr Sismanidis, and

a violation of Article 6 1 and 2 (right to a fair hearing within a reasonable time and presumption

of innocence) of the Convention as regards Mr Sitaridis.

The case concerned the institution of proceedings against each of the applicants for smuggling

despite the fact that the criminal courts had already irrevocably acquitted them of the same offence.

In the case of the first applicant, the Court held that the administrative proceedings in issue had

concerned a second offence originating in identical acts to those which had given rise to a final

acquittal. In the case of the second applicant, the Court considered that the administrative courts

finding had infringed the principle of the presumption of innocence as already established through

his acquittal by the Thessaloniki Court of Appeal. It also held that the length of the proceedings

before the Thessaloniki Administrative Court and Court of Appeal approximately six years and ten

months had been excessive and did not satisfy the reasonable time requirement.

Principal facts

The applicants, Christoforos Theofilos Sismanidis and Spyridon Sitaridis, are Greek nationals who live

in Acharnai and Thessaloniki respectively.

Mr Sismanidis

In December 1994, criminal proceedings were instituted against Mr Sismanidis and N.T. for

smuggling. They were found guilty and sentenced to 16 months imprisonment. On 15 April 1997 the

Nafplio Court of Appeal acquitted them, finding that their guilt could not be established. The

judgment became final.

In the meantime, in September 1996, following an investigation by the customs authorities, the

Director of the Customs Service had ordered Mr Sismanidis and N.T. to pay the sum of 24,000,000

drachmas (approximately EUR 70,433) in unpaid customs duties, including a surcharge for

contraband. Mr Sismanidis applied to the Administrative Court for judicial review of the decision by

the Director of the Customs Service, and on 30 October 1998 the court allowed his application and,

taking into account the acquittal by the Nafplio Court of Appeal onthe charge of smuggling, set aside

the decision complained of. The State appealed. On 5 February 2003, finding it established from the

evidence before it that Mr Sismanidis and N.T. had performed a fictitious transaction in order to

1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,

any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges

considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final

judgment. If the referral request is refused, the Chamber judgment will become final on that day.Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.

Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.

http://www.coe.int/t/dghl/monitoring/executionhttp://www.coe.int/t/dghl/monitoring/executionhttp://www.coe.int/t/dghl/monitoring/executionhttp://hudoc.echr.coe.int/eng?i=001-163440http://hudoc.echr.coe.int/eng?i=001-163440http://hudoc.echr.coe.int/eng?i=001-163440http://hudoc.echr.coe.int/eng?i=001-163440http://hudoc.echr.coe.int/eng?i=001-163440http://hudoc.echr.coe.int/eng?i=001-163440http://hudoc.echr.coe.int/eng?i=001-163440http://hudoc.echr.coe.int/eng?i=001-163440http://hudoc.echr.coe.int/eng?i=001-163440

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2

avoid having to pay import duties, the Administrative Court of Appeal concluded that they had

committed the offence of smuggling. Mr Sismanidis appealed on points of law to the Supreme

Administrative Court, arguing that the tax authorities had imposed a penalty on him for smuggling

despite the fact that the criminal courts had already irrevocably acquitted him of the same offence.

The Supreme Administrative Court dismissed the appeal and upheld the judgment of the

Administrative Court of Appeal.

Mr Sitaridis

In 1998, criminal proceedings were instituted against Mr Sitaridis for smuggling. He was found guilty

and sentenced to 14 months imprisonment, but was acquitted on appeal on the charge of

smuggling because of doubts as to his guilt. The Court of Appeals judgment became final.

In the meantime, in November 1996, the director of the Central and West Macedonia Customs

Service had ordered Mr Sitaridis to pay a fine of 8,485,368 drachmas (approximately EUR 24,902) for

the tax offence of importing illegal goods, and also to pay additional customs duties. Mr Sitaridis

applied for judicial review to the Administrative Court, which partly set aside the decision

complained of. Mr Sitaridis and the Greek State each lodged appeals, which were dismissed. Mr

Sitaridis appealed on points of law to the Supreme Administrative Court, which dismissed the appealand upheld the judgment of the Administrative Court of Appeal.

Complaints, procedure and composition of the Court

Relying on Article 4 of Protocol No. 7 (right not to be tried or punished twice) and Article 6 2

(presumption of innocence), Mr Sismanidis and Mr Sitaridis complained that in not taking into account

their acquittal by the criminal courts, the administrative courts had breached the ne bis in idem

principle, by which a person who had been lawfully acquitted could not be tried again for the same

offence. They also alleged a breach of the presumption of innocence.

Relying on Article 6 1 and 2 (right to a fair hearing within a reasonable time and presumption of

innocence), Mr Sitaridis complained that the length of the proceedings in the administrative courts

had breached the reasonable time principle.

The applications were lodged with the European Court of Human Rights on 16 November 2009 and 2

November 2012.

Judgment was given by a Chamber of seven judges, composed as follows:

Mirjana Lazarova Trajkovska(The former Yugoslav Republic of Macedonia), President,

Ledi Bianku(Albania),

Kristina Pardalos(San Marino),

Linos-Alexandre Sicilianos(Greece),

Robert Spano(Iceland),Armen Harutyunyan(Armenia),

Pauliine Koskelo(Finland),

and also Abel Campos, Section Registrar.

Decision of the Court

Article 4 of Protocol No. 7 and Article 6 2

The Court noted that Mr Sitaridis had not raised his complaint of a violation of Article 4 of Protocol

No. 7 in the domestic courts, at least in substance. This complaint therefore had to be rejected for

failure to exhaust domestic remedies.

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In the case of Mr Sismanidis, the Court considered that once his acquittal in the initial criminal

proceedings had become final in 1997, he should have been regarded as having already been finally

acquitted within the meaning of Article 4 of Protocol No. 7. The Court considered that the

administrative proceedings in question had concerned a second offence originating in identical acts

to those which had given rise to a final acquittal. That finding was sufficient to reach the conclusion

that there had been a violation of Article 4 of Protocol No. 7 in the case of Mr Sismanidis.

The Court noted that Mr Sismanidis had not raised his complaint of a violation of Article 6 2 before

the Supreme Administrative Court. This complaint therefore had to be rejected for failure to exhaust

domestic remedies.

In the case of Mr Sitaridis, the Court noted that in the proceedings following his acquittal by the

Thessaloniki Court of Appeal, the administrative courts had determined a criminal charge. In both

the criminal and the administrative proceedings, the applicable sanctions had had a punitive

element. The evidence suggested that the acts of which Mr Sitaridis had been accused were identical

and the constituent elements of the relevant offences were the same. The administrative courts

dealing with the case had found that Mr Sitaridis had committed the same offence of smuggling in

respect of which he had previously been acquitted by the criminal court. The Court considered thatthe administrative courts finding had breached the principle of the presumption of Mr Sitaridiss

innocence as already established through his acquittal by the Thessaloniki Court of Appeal.

There had therefore been a violation of Article 6 2 in the case of Mr Sitaridis.

Article 6 1

As regards the proceedings in the Supreme Administrative Court, the Court noted that it had been

open to Mr Sitaridis to use the remedy provided for by law in order to complain of the length of the

proceedings. This part of the complaint therefore had to be rejected for failure to exhaust domestic

remedies.

As regards the proceedings in the Thessaloniki Administrative Court and Court of Appeal, the periodto be considered had lasted approximately six years and ten months across two levels of jurisdiction.

The Court found that the case had not been especially complex and that there was no evidence to

suggest that Mr Sitaridis should be held responsible for the protracted nature of the proceedings in

the Administrative Court. The Court found that a period of approximately six years and ten months

across two levels of jurisdiction had been excessive and did not satisfy the reasonable time

requirement. There had therefore been a violation of Article 6 1 in the case of Mr Sitaridis.

Just satisfaction (Article 41)

The Court held that Greece was to pay 3,500 euros (EUR) to Mr Sismanidis and EUR 4,500 to Mr

Sitaridis in respect of non-pecuniary damage and EUR 1,230 to Mr Sitaridis in respect of costs and

expenses.

The judgment is available only in French.

This press release is a document produced by the Registry. It does not bind the Court. Decisions,

judgments and further information about the Court can be found on www.echr.coe.int. To receive

the Courts press releases, please subscribe here: www.echr.coe.int/RSS/enor follow us on Twitter

@ECHRpress.

Press contacts

echrpress@echr.coe.int| tel.: +33 3 90 21 42 08

Denis Lambert (tel: + 33 3 90 21 41 09)Tracey Turner-Tretz (tel: + 33 3 88 41 35 30)

mailto:Echrpress@echr.coe.intmailto:Echrpress@echr.coe.inthttps://twitter.com/ECHR_Presshttp://www.echr.coe.int/RSS/enhttp://www.echr.coe.int/

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Nina Salomon (tel: + 33 3 90 21 49 79)

Inci Ertekin (tel: + 33 3 90 21 55 30)

The European Court of Human Rightswas set up in Strasbourg by the Council of Europe Member

States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.