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FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005)
for negligent driving guided to the road accidents. ECTHR found violations of the Article 4/7 in of all of
these cases and stated:
" . The Court observes that the wording of Article 4 of Protocol No. 7 does not refer to “the same
offence” but rather to trial and punishment “again” for an offence for which the applicant has already been
finally acquitted or convicted. Thus, while it is true that the mere fact that a single act constitutes more
than one offence is not contrary to this Article, the Court must not limit itself to finding that an applicant
was, on the basis of one act, tried or punished for nominally different offences. The Court, like the
Austrian Constitutional 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 (see paragraph 14 above). An obvious
example would be an act which constitutes two offences, one of which contains precisely the same
elements as the other plus an additional one. There may be other cases where the offences only slightly
overlap. 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."
These decisions may have considerable impact on not uncommon in Europe practices, when person is first
punished for tax offences in accordance with Administrative legislation and then, second time, under
Criminal law provisions.
7. Conclusion.
The European Convention on Human Rights is one of the most important achievements of European
society. Having general character as almost every important legal document, it lives only in its real
implementations. The Court organs take onto themselves a very hard task to introduce the provisions of
the Convention into our real life. Dealing with this great task, they have resolved plenty of serious legal
problems.
Nevertheless, some of legal problems still need to be resolved. The most important and interesting
problems related to specific the Convention Provisions have been discussed below. However, a couple of
problems of general character is difficult to associate with some specified Articles of the Convention.
First, few words need to be said on the conception of "General interest", that is widely used in the text of
the Convention as well as in the Court Organ's decisions. This "General interest" conception usually used
by States for justifying theirs negative impact or impairment of individuals' rights. Inside plenty of Court
organs' decisions important presumption can be found: the general (public) interest is expressed by the
State (only) through its legislating and regulating activity and there is unnecessary to examine, does in
fact such state's activity constitute real "General interest". Usually the main disputing point is merely
forms and quantitative characteristics of this negative impact.
This presumption has not been challenged yet by applicants. There are relatively small amount of cases,
where the Courts have determined themselves whether the State's activity is done in accordance with the
"General interest". For example, in the case of "S. A. Dangeville v. France" 45 applicant's company
45 Application no. 36677/97
ANDREI AFANASSIEV - HUMAN RIGHTS AND TAXATION IN EUROPE: WHAT IS NEW?
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