The Public Prosecutor
No infringement of the prohibition against double penalty – “ne bis in idem”
T was a cattle farmer. In connection with an inspection visit, the Danish Plant Directorate found a number of violations of the rules governing identification and registration of cattle. Among other things, these violations caused the Danish Veterinary and Food Administration to send T an administrative fixed-penalty notice of DKK 7,000 which T did not accept and which became the subject of the present criminal case. Also, the violations led to the Danish Food Industry Agency’s decision to reduce T’s agricultural subsidies in the year in which the violations were found. T’s agricultural subsidies were reduced by five per cent, corresponding to DKK 9,454.51. The decision to reduce the agricultural subsidies was made with reference to the rules on cross compliance, according to which the payment of direct subsidies to farmers must be proportional to their environmental, health and animal welfare responsibilities. These rules are, for example, provided in Commission Regulation No 796/2004 laying down detailed rules for the implementation of cross compliance, among other things.
Referring to the reduced agricultural subsidies, T claimed that conviction would be in contravention of the criminal governing principle that no one can be punished twice for the same cause of action – “ne bis in idem”.
The Supreme Court fined T DKK 7,000. Among other things, the Supreme Court declared that regardless of the fact that the amount of the reduction of the agricultural subsidies had been fixed on the basis of an assessment of the severity, extent and duration of the violation, the reduction could not be regarded as or compared to a criminal sanction which would lead to the conclusion that the “ne bis in idem” principle had been set aside, cf. Article 4 of Protocol No. 7 to the European Human Rights Convention. (Dissenting opinion regarding the justification).
The High Court had reached the same conclusion.