181 / 350
SOME GUARANTEES REGARDING CRIMINAL PROCEEDINGS APPLICABLE …
transportation of drugs, punishable under a few legal provisions,
58
this Article does
not preclude the separate offences being tried by the same court.
59
The expression “under the jurisdiction of the same State” sets limits on the
application of the article in such a way that it is relevant only on the national level.
However, there exist several conventions that permit the application of the principle
at the international level. For instance, the European Convention on the International
Validity of Criminal Judgments,
60
the European Convention on Extradition,
61
the
European Convention on the Transfer of Proceedings in Criminal Matters.
62
For
instance, if an applicant NGO was established under the laws of Costa Rica but
exercised its activities in one of the CoE member states that assumingly breached the
rights of the applicant company, it is also possible in the course of evaluation to take
into account the Inter-American Convention on Extradition.
63
The second paragraph provides that the principle of
ne bis in idem
does not
prevent a case from being re-opened if there is evidence of new or newly discovered
facts, irrespective of the question whether this is in favor of or to the detriment of the
person concerned.
64
The Court set forth the basic principles of application of the provision of Article 4
of Protocol No. 7 to the Convention in the case of
Sergey Zolotukhin v. Russia.
65
It is
again emphasized that the legal characterization of the procedure under national law
cannot be the sole criterion of relevance for the applicability of the principle of
non
bis in idem
under Article 4 § 1 of Protocol No. 7; the
Engel test
has to be applied.
Otherwise, the application of this provision would be left to the discretion of the
states to a degree that might lead to results incompatible with the object and purpose
of the Convention.
There are a number of cases where the applicant NGOs’ alleged a violation
of Article 4 of Protocol No. 7. For example, in the case of
K.S. and K.S. AG
v. Switzerland,
66
in which the application was lodged with the Court by two applicants.
The first applicant was a Swiss national who had the function of chairman and main
58
The applicant was ordered to serve imprisonment in default for failure to pay customs fines, in addition
to prison sentences for drug trafficking that resulted in two consecutive terms of imprisonment for the
same offence.
59
Göktan v. France
, No. 33402/96, § 52, ECHR 2002-V.
60
European Convention on the International Validity of Criminal Judgments. The Hague, 28.V.1970.
Available at
http://www.conventions.coe.int/Treaty/EN/Treaties/Html/070.htm.
61
European Convention on Extradition. Paris, 13.XII.1957. Available from
http://conventions.coe.int/
Treaty/en/Treaties/Html/024.htm.
62
EuropeanConventionontheTransferofProceedingsinCriminalMatters.Strasbourg,15.V.1972.Available
at
http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=073&CM=1&CL=ENG.63
Inter-American Convention on Extradition. Caracas, Republic of Venezuela, on 25 February 1981.
Available at
http://www.oas.org/juridico/english/treaties/b-47.html.64
Van Dijk, P., Van Hoof, F., Van Rijn, A., Zwaak, L. eds. Theory and practice of the European
Convention on Human Rights. – 4th ed. – Antwerpen ; Oxford : Intersentia, 2006, p. 982.
65
Sergey Zolotukhin v. Russia
[GC], No. 14939/03, ECHR 2009.
66
K.S. and K.S. AG v. Switzerland
(dec.), No. 19117/91, 12 January 1994.