The Italian implementation of the Strasbourg Court's rulings in the case Grande Stevens and others vs Italy
The Italian enforcement of Strasbourg Court pronouncements about ne bis in idem, administrative sanctions and criminal matters has been influenced by the European Court of Justice jurisprudence.
This judge has minimised the impact of ECtHR rulings, taking into account the widespread practice in the EU Member StatesThe revolutionary impact of ECtHR case law 73 concerning the imposition of penalties under both administrative law and criminal law in respect of the same offence, especially in fields such as taxation, environmental policies and public safety. In the perspective of the Court of Luxembourg, the double punishment is not prohibited in all the cases, but it is prohibited only when the overall penalty is not proportionate.1 Following this approach, the Italian case law has repeatedly excluded the violation of art. 4 Prot. no. 7 ECHR when a person has been punished by both criminal and administrative law for the conduct of market abuse.[164] [165] In the same way, it has been denied that violation in the case of the administrative sanction (demolition) decided by the criminal judge pronouncing on a charge of construction abuse,[166] or in the case of the double punishment of a tax offence by criminal and administrative law,[167] or when a legal entity and an individual are both punished by criminal and administrative law for the same VAT violation.[168]
The arguments supporting the double punishment by criminal and administrative law are untenable even if they are according to the European Court of Justice case law, followed by the Italian jurisprudence and by the latest Strasbourg Court ruling, in the case A and B vs Norway. The best way to criticise them can be based on the excellent, indisputable and very clear dissenting opinion of the judge Pinto de Albuquerque just in that case.
This ECtHR member wrote that ne bis in idem is one of the most important principles in the European legal culture and that it has been neglected by the Strasbourg Court in the case above-mentioned. Ne bis in idem is a pro persona guarantee and the latter ECtHR case law, similar to the European Court of Justice jurisprudence, denaturalised it, changing this principle in a ‘tool’ which allows defendants’ ‘manipulation and impunity’.We can read in the dissenting opinion of the judge Pinto de Albuquerque that: ‘After turning the rationale of the ne bis in idem principle upside down, the present judgment opens the door to an unprecedented, Leviathan-like punitive policy based on multiple State-pursued proceedings, strategically connected and put in place in order to achieve the maximum possible repressive effect’. Unfortunately, Pinto de Albuquerque is right. Therefore, we just have to hope for future pronouncements of the Strasbourg Court, in which it will overrule the statements of A and B vs Norway, following the direction highlighted in the dissenting opinion just mentioned.
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