FIRST SECTION

DECISION

Application no. 57849/12 Alen SMOKOVIĆ against Croatia

The European Court of Human Rights (First Section), sitting on 12 November 2019 as a Chamber composed of:

Krzysztof Wojtyczek, President, Ksenija Turković, Aleš Pejchal, Armen Harutyunyan, Pere Pastor Vilanova, Tim Eicke, Raffaele Sabato, judges,

and Abel Campos, Section Registrar ,

Having regard to the above application lodged on 23 July 2012,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Alen Smoković, is a Croatian national who was born in 1978 and lives in Pazin. He was represented before the Court by Mr M. Zubović, a lawyer practising in Pazin.

2 . The Croatian Government (“the Government”) were represented by their Agent, Ms Å . Sta ž nik.

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

4 . On 9 November 2005 the Istria Police Department ( Policijska uprava istarska ) lodged a request with the Labin Minor Offences Court ( Prekr Å¡ ajni sud u Labinu ) to institute minor offences proceedings against the applicant for verbally attacking a football referee.

5 . On 4 June 2007 the Labin Minor Offences Court found the applicant guilty, under section 6 of the Minor Offences against Public Order and Peace Act, of physically attacking a football referee and fined him 916 Croatian kunas (HRK; approximately 125 euros). The relevant part of the court ’ s decision reads:

“The accused, Alen Smokovi ć ... has been found guilty in that at 4.35 p.m. on 16 October 2005 during a ... football match ... at a stadium in Vi š kovi ć i he approached the referee, I.R., and punched him in the chest, causing [I.R.] bodily injuries. By physically attacking a referee and causing him bodily injuries, [the accused], as a sportsman, has breached the peace and public order in a flippant and impolite manner and caused stress to his fellow citizens, constituting a minor offence under section 6 of the Minor Offences against Public Order and Peace Act ...”

6 . Following an appeal lodged by the applicant, on 18 December 2008 the High Minor Offences Court ( Visoki prekr Å¡ ajni sud ) terminated the proceedings on the grounds that the statutory limitation period had expired. The relevant part of that decision reads:

“... Following a timely appeal by the accused, the court has examined the impugned decision ... and found that the minor-offence proceedings in this case can no longer be conducted against the accused, because the time that has elapsed since the commission of the impugned offence (16 October 2005) amounts to more than two years, so that the maximum statutory limitation period has expired in accordance with section 76(5) of the Minor Offences Act ...”

7 . On 10 November 2005 I.R. brought a private criminal prosecution against the applicant in the Labin Municipal Court ( Op ć inski sud u Labinu ).

8 . At the final hearing held on 27 September 2010, the applicant ’ s counsel gave his closing arguments and then the prosecution did so as well.

9 . On the same date the court found the applicant guilty of causing bodily injury to I.R. during the football match in Vi š kovi ć i at about 5 p.m. on 16 October 2005, by which he had committed a criminal offence under Article 98 of the Criminal Code. The court imposed a sentence of three months ’ imprisonment, suspended on probation for one year.

10 . The applicant appealed. He complained, inter alia , that his right not to be tried twice had been violated.

11 . On 3 May 2011 the Pula County Court ( Ž upanijski sud u Puli ) upheld the first-instance judgment. As regards the alleged violation of the ne bis in idem principle, it held that the minor-offence proceedings had been terminated on the grounds that the statutory limitation period had expired and that it could not therefore be said that the applicant had been punished twice.

12 . On 11 January the Constitutional Court ( Ustavni sud Republike Hrvatske ) declared a subsequent constitutional complaint lodged by the applicant inadmissible as manifestly ill-founded. The decision was served on the applicant ’ s lawyer on 7 February 2012.

Article 31

“...

(2) No one shall be liable to be tried or punished again in criminal proceedings for an offence of which he has already been finally acquitted or convicted in accordance with the law.

Only the law may prescribe, in accordance with the Constitution or an international agreement, the situations in which proceedings may be reopened under paragraph (2) of this Article and the grounds for reopening them.”

14 . The relevant provisions of the Code of Criminal Procedure ( Zakon o kaznenom postupku – Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 62/2003, 178/2004 and 115/2006) provide as follows:

Types of judgments

Article 352

“(1) A [court shall issue a] judgment dismissing the charges, acquitting the accused or finding him or her guilty ...”

Article 353

“A judgment dismissing the charges shall be adopted when:

...

6. the accused has been exempted from criminal prosecution by means of an amnesty or a pardon, or the criminal prosecution cannot be pursued on the grounds of statutory limitation, or other circumstances exist which exclude criminal prosecution.”

Article 354

“A judgment acquitting the accused shall be adopted when:

(1) the offence with which the accused is charged is not a criminal offence under the law;

(2) there are circumstances that exclude the accused ’ s guilt;

(3) it has not been proved that the accused committed the criminal offence with which he or she is charged.”

Article 355

“(1) A judgment finding the accused guilty shall contain the following details:

1. the offence of which the accused is found guilty, stating the facts and circumstances constituting the specific elements of a given criminal offence as well as those on which the application of a specific provision of the Criminal Code depends;

2. the statutory name and description of the criminal offence and the provisions of the Criminal Code which have been applied;

3. the sentence to be applied, or whether, under the provisions of the Criminal Code, a sentence is not to be applied or imprisonment is to be replaced by community service;

4. any decision to suspend the sentence;

5. any decision to apply preventive measures or to confiscate material gains;

6. the decision on costs and on any civil claim, and whether a final judgment is to be published in the media ...”

Article 368

“An infringement of the Criminal Code arises if ...

3. there exist circumstances which exclude criminal prosecution, in particular, where ... the matter has already been finally adjudicated upon ...”

15 . Under the Criminal Code in force when the applicant allegedly committed the criminal offence ( Kazeni zakon , Official Gazette nos. 110/1997, 27/1998, 50/2000, 129/2000, 51/2001, 111/2003, 190/2003, 105/2004, and 84/2005), the circumstances excluding an individual ’ s guilt were lack of accountability ( neubrojivost ), error of law, or error of fact. The statutory limitation period after which criminal prosecution was no longer possible in respect of the criminal offence of inflicting serious bodily injury was four years. Under the Criminal Code enacted on 9 June 2006 (Official Gazette no. 71/2006), which came into force on 1 October 2006, that period was extended to six years.

16 . Article 98 prescribed a fine or a sentence of up to three years ’ imprisonment for causing bodily injury. Article 99 prescribed a prison sentence of between six months and five years for causing serious bodily injury.

17 . The relevant part of the Minor Offences against Public Order and Peace Act ( Zakon o prekršajima protiv javnog reda i mira , Official Gazette nos. 5/1990, 47/1990 and 29/1994) reads:

Section 6

“Anyone who behaves in a particularly offensive or rude manner in a public place by insulting citizens or disturbing the peace shall be liable to a fine ... or to a term of imprisonment not exceeding sixty days.”

18 . Section 76 of the Minor Offences Act ( Zakon o prekr Å¡ ajima , Official Gazette nos. 88/02, 122/02, 187/03, 105/045 and 127/04 ), as in force at the material time, provided that minor-offence proceedings had to be initiated within a year of the offence being committed and that, where such proceedings had been instituted, the statutory limitation period would in any event expire two years after the commission of the offence.

19 . Section 196(1) of the Act reads:

“Proceedings shall be terminated by a decision:

...

9. if there are other circumstances prescribed by law or international treaty which prevent [the court from] finding the accused guilty ...”

20 . In its decision no. K zz 30/15-3 of 12 August 2015, the Supreme Court addressed the issue of whether the termination of minor offences proceedings on account of the expiry of the statutory limitation period prevented a criminal court from continuing criminal proceedings against the same accused in respect of charges which concerned the same events. In so far as relevant, the Supreme Court held:

“A decision on termination of minor-offence proceedings or criminal proceedings ... on account of the expiry of the statutory limitation period ... is a formal termination of court proceedings. Such a decision is not a decision on the merits, that is, whether the accused committed a minor offence or a criminal offence. Such a decision does not concern the core of the matter, but only the formal preconditions in respect of court proceedings. Thus, a decision terminating minor-offence proceedings or criminal proceedings on account of the expiry of the statutory limitation period ... has neither the significance nor the weight of an acquittal or conviction, because it does not resolve a case on its merits but only formally ...”

21 . In its leading decision on the issue, no. U-III-3759/09 of 3 March 2011 (published in the Official Gazette no. 36/2011), the Constitutional Court held, in so far as relevant:

“7. ... the Constitutional Court considers that the applicant ’ s constitutional right to a fair trial has not been violated by a breach of the non bis in idem principle ...

The relevant provisions of the Constitution and of Protocol No. 7 to the Convention provide that no one shall be liable to be tried or punished again in criminal proceedings for an offence for which he has already been finally acquitted or convicted in accordance with the law ...

The decision terminating the proceedings on formal grounds is not a decision on the merits of the case or the applicant ’ s guilt ...”

22 . In its judgment in the Miraglia case C-469/03 of 10 March 2005, the Court of Justice of the European Union (“CJEU”), when interpreting the meaning of the term “finally disposed of” under Article 54 of the Convention Implementing the Schengen Agreement (adopted on 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, hereinafter “the CISA”) , examined whether the relevant decision of the prosecuting authority of a Member State declaring a case to be closed on the ground that criminal proceedings had been initiated in another Member State against the same defendant and in respect of the same acts, provided a determination as to the merits of the case. The relevant part of the judgment reads:

“29 . It is clear from the actual wording of Article 54 of the CISA that a person may not be prosecuted in a Member State for the same acts as those in respect of which his case has been ‘ finally disposed of ’ in another Member State.

30 . Now, a judicial decision, such as that at issue in the case in the main proceedings, taken after the public prosecutor has decided not to pursue the prosecution on the sole ground that criminal proceedings have been initiated in another Member State against the same defendant and in respect of the same acts, but where no determination has been made as to the merits of the case, cannot constitute a decision finally disposing of the case against that person within the meaning of Article 54 of the CISA.

31 . The aptness of that interpretation of Article 54 of the CISA is borne out by the fact that it is the only interpretation to give precedence to the object and purpose of the provision rather than to procedural or purely formal matters, which, after all, vary as between the Member States concerned, and to ensure that that article has proper effect.”

23 . In its judgment in the Gasparini and Others case C-467/04 of 28 September 2006, the CJEU dealt with the question whether the ne bis in idem principle, provided under Article 54 of the CISA, applied in respect of a court decision, given after the proceedings had been brought, by which the trial has been finally disposed because the prosecution of the offence had become time-barred. The relevant part of the judgment reads:

“22. By this question, the national court essentially asks whether the ne bis in idem principle, enshrined in Article 54 of the CISA, applies in respect of a decision of a court of a Contracting State by which the accused is acquitted finally because prosecution of the offence is time-barred.

23. Under Article 54 of the CISA, a person may not be prosecuted in a Contracting State for the same acts as those in respect of which his trial has already been ‘ finally disposed of ’ in another Contracting State provided that, in the event of conviction, the penalty has been enforced, is actually in the process of being enforced or can no longer be enforced.

24. The main clause of the single sentence comprising Article 54 of the CISA makes no reference to the content of the judgment that has become final. It is not applicable solely to judgments convicting the accused (see, to this effect, the judgment delivered today in Case C-150/05 Van Straaten [2006] ECR I-9327, paragraph 56).

26. The main proceedings raise the question whether the same is true with regard to a final acquittal because prosecution of the offence is time-barred.

27. It is settled case-law that Article 54 of the CISA has the objective of ensuring that no one is prosecuted for the same acts in several Contracting States on account of the fact that he exercises his right to freedom of movement (see Joined Cases C ‑ 187/01 and C-385/01 Gözütok and Brügge [2003] ECR I-1345, paragraph 38, and Van Straaten , paragraph 57). It ensures that persons who, when prosecuted, have their cases finally disposed of are left undisturbed. They must be able to move freely without having to fear a fresh prosecution for the same acts in another Contracting State.

28. Not to apply Article 54 of the CISA when a court of a Contracting State, following the bringing of criminal proceedings, has made a decision acquitting the accused finally because prosecution of the offence is time-barred would undermine the implementation of that objective. Such a person must therefore be regarded as having had his trial finally disposed of for the purposes of that provision.

29. It is true that the laws of the Contracting States on limitation periods have not been harmonised. However, nowhere in Title VI of the EU Treaty, relating to police and judicial cooperation in criminal matters (Articles 34 and 31 of which were selected as the legal basis for Articles 54 to 58 of the CISA), or in the Schengen Agreement or the CISA itself is the application of Article 54 of the CISA made conditional upon harmonisation or approximation of the criminal laws of the Member States relating to procedures whereby further prosecution is barred ( Gözütok and Brügge , paragraph 32) or, more generally, upon harmonisation or approximation of their criminal laws (see Case C-436/04 Van Esbroeck [2006] ECR I-2333, paragraph 29).

30. It should be added that there is a necessary implication in the ne bis in idem principle, enshrined in Article 54 of the CISA, that the Contracting States have mutual trust in their criminal justice systems and that each of them recognises the criminal law in force in the other Contracting States even when the outcome would be different if its own national law were applied ( Van Esbroeck , paragraph 30).

31. Framework Decision 2002/584 does not preclude the ne bis in idem principle from applying in the case of a final acquittal because prosecution of the offence is time-barred. Article 4(4) of the framework decision, relied upon by the Netherlands Government in the observations which it submitted to the Court, permits the executing judicial authority to refuse to execute a European arrest warrant inter alia where the criminal prosecution of the requested person is time-barred according to the law of the executing Member State and the acts fall within the jurisdiction of that State under its own criminal law. In order for that power to be exercised, a judgment whose basis is that a prosecution is time-barred does not have to exist. The situation where the requested person has been finally judged by a Member State in respect of the same acts is governed by Article 3(2) of the framework decision, a provision which lays down a mandatory ground for non-execution of a European arrest warrant.

32. Having regard to the complexity of the main proceedings, it should be pointed out, finally, that it is for national courts to determine whether the acts in respect of which a case has been finally disposed of are the same as those at issue before them.

33. It follows from the foregoing that the answer to the first question must be that the ne bis in idem principle, enshrined in Article 54 of the CISA, applies in respect of a decision of a court of a Contracting State, made after criminal proceedings have been brought, by which the accused is acquitted finally because prosecution of the offence is time-barred.”

24 . The comparative review concerning thirty-three member States to the Convention shows that in seventeen countries a decision on the termination of proceedings because the prosecution has become time-barred is not considered equivalent to an acquittal, mainly because it is considered a purely procedural (and not substantive) decision. Conversely, in fifteen countries it is, at least under some conditions, considered equivalent to an acquittal. Concerning the question of whether the termination of minor ‑ offence proceedings on account of the expiry of the statutory limitation period triggers the application of the ne bis in idem principle for the purpose of further criminal proceedings, the answer is affirmative (that is, it forms an obstacle to further criminal proceedings) in thirteen jurisdictions, negative in fourteen, and in two countries the answer depends on the particular circumstances of the case. Therefore there seems to be no consensus and not even a real majority of States that would favour one or the other solution.

25 . The Inter-American Court of Human Rights in the case of Lori Berenson-Mejía v. Perú , judgment of 25 November 2004, considered that the term “acquittal” under Article 8(4) of the American Convention on Human Rights related to the question whether there had been a determination of the case on the merits. The relevant part of the judgment reads:

“208. The trial in the military jurisdiction against Lori Berenson terminated with a non-appealable judgment delivered by the Supreme Council of Military Justice, which waived competence in favour of the ordinary jurisdiction, without ruling on merits. Consequently, since there had been no ruling on merits in the military jurisdiction, the essential element for declaring that the non bis in idem principle has been affected does not exist.

209. Based on the above, the Court considers that, in the circumstances of the instant case, it has not been proved that the State violated Article 8(4) of the Convention to the detriment of the alleged victim.”

COMPLAINTS

26 . The applicant complained under Article 4 of Protocol No. 7 to the Convention that he had been tried twice for the same offence.

27 . The applicant complained under Article 6 of the Convention about the assessment of the facts of the case by the national courts in the criminal proceedings against him. He also complained about the manner in which the parties had made their closing arguments.

28 . Lastly, the applicant complained under Article 7 of the Convention that the rules concerning the statutory limitation period in the criminal proceedings against him had been applied retroactively.

THE LAW

29 . The applicant complained that he had been tried twice for the same offence. He relied on Article 4 of Protocol No. 7, which reads as follows:

“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.

2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.

3. No derogation from this Article shall be made under Article 15 of the Convention.”

30 . The Government maintained that the offences with which the applicant had been charged in the respective minor-offence proceedings and criminal proceedings were not the same, because the purpose of those two sets of proceedings differed. The purpose of minor-offence proceedings was to protect the peace and public order, and the definition of a minor offence under section 6 of the Minor Offences against Public Order and Peace Act did not include the infliction of bodily injury, which was a criminal offence. The purpose of prosecuting the minor offence at issue had been to protect public order, whereas the purpose of prosecuting the criminal offence at issue had been to protect the individual concerned. The latter offence could only have been prosecuted in criminal proceedings, regardless of whether minor-offence proceedings had been instituted.

31 . Under the Croatian legal system the criminal offence at issue was liable to private prosecution by the victim. Accepting that a victim of such an offence could not seek prosecution of his or her attacker would amount to a violation of the victim ’ s rights under the Convention.

32 . The Government also stressed that in the minor-offence proceedings the applicant had been neither convicted nor acquitted.

33 . The applicant argued that there had been no connection between the two sets of proceedings. He had been tried in minor-offence proceedings, where evidence had been presented and a first-instance judgment finding him guilty and imposing a fine on him had been pronounced. Only following his appeal had a decision terminating those proceedings on account of the statutory limitation period been adopted. Had that judgment become final, no further criminal proceedings – in which he would have risked, and actually been given, a higher penalty – would have been permitted. The fact that the courts conducting the minor-offence proceedings had not completed those proceedings within the statutory limitation period could not be attributable to him.

34 . The very purpose of Article 4 of Protocol No. 7 was to prevent retrial for offences in respect of which a final decision had been adopted. The form of such a decision was irrelevant. The manner in which the national courts had acted in the case at issue had produced an absurd result: the existence of two final decisions in respect of the same offence against the same accused.

35 . The Court does not have to address the issues whether both sets of proceedings were criminal in nature and w hether the offences for which the applicant was prosecuted were the same ( idem ), since the complaint under Article 4 of Protocol No. 7 is in any event inadmissible for the following reasons.

36 . The Court reiterates that the aim of Article 4 of Protocol No. 7 is to prohibit the repetition of criminal proceedings that have been concluded by a final acquittal or conviction (see, mutatis mutandis , Mihalache v. Romania ([GC], no. 54012/10, § 81, 8 July 2019, with further references). Consequently , the crucial issue in the present case is whether the decision terminating the minor-offence proceedings on account of the expiry of the statutory limitation period amounted to a “final ... acquittal or conviction” within the meaning of paragraph 1 of Article 4 of Protocol No. 7.

37 . In the recent Grand Chamber judgment Mihalache v. Romania (cited above, §§ 96-97), the Court held:

“ 88 . The Court notes that Article 4 of Protocol No. 7 states that the ne bis in idem principle is intended to protect persons who have already been ‘ finally acquitted or convicted ’ . The explanatory report on Protocol No. 7 states, as regards Article 4, that ‘ [t]he principle established in this provision applies only after the person has been finally acquitted or convicted in accordance with the law and penal procedure of the State concerned ’ (see paragraph 29 of the explanatory report, cited in paragraph 37 above). For a person to qualify for protection under this Article, a final decision is therefore not sufficient; the final decision must also involve the person ’ s acquittal or conviction. ...

96. To date, the Court has never defined in its case-law the scope of the expression ‘ acquitted or convicted ’ or set out any general criteria in that regard. Nonetheless, it has held on many occasions that the discontinuance of criminal proceedings by a public prosecutor does not amount to either a conviction or an acquittal, and that Article 4 of Protocol No. 7 is therefore not applicable in such a situation (see, to that effect, Marguš , cited above, § 120, and Smirnova and Smirnova and Harutyunyan , both cited above). In Horciag (cited above) the Court stated that ‘ a decision confirming provisional psychiatric detention cannot be treated as an acquittal for the purposes of Article 4 of Protocol No. 7, but concerns a preventive measure not entailing any examination or finding as to the applicant ’ s guilt (see, mutatis mutandis , Escoubet v. Belgium (cited above), and Mulot v. France (dec.), no. 37211/97, 14 December 1999) ’ .

97. In order to determine whether a particular decision constitutes an ‘ acquittal ’ or a ‘ conviction ’ , the Court has therefore considered the actual content of the decision in issue and assessed its effects on the applicant ’ s situation. Referring to the text of Article 4 of Protocol No. 7, it considers that the deliberate choice of the words ‘ acquitted or convicted ’ implies that the accused ’ s ‘ criminal ’ responsibility has been established following an assessment of the circumstances of the case, in other words that there has been a determination as to the merits of the case. In order for such an assessment to take place, it is vital that the authority giving the decision is vested by domestic law with decision-making power enabling it to examine the merits of a case. The authority must then study or evaluate the evidence in the case file and assess the applicant ’ s involvement in one or all of the events prompting the intervention of the investigative bodies, for the purposes of determining whether ‘ criminal ’ responsibility has been established (see, mutatis mutandis , Allen v. the United Kingdom [GC], no. 25424/09, § 127, ECHR 2013, a case concerning the scope of the presumption of innocence under Article 6 § 2 of the Convention, in which the content, and not the form, of the decision, was the decisive factor for the Court)....

38 . It follows therefrom that Article 4 of Protocol No. 7 applies only when the first proceedings have been terminated by a final judgment containing a criminal conviction or an acquittal on the merits, that is to say, rendered following an assessment of the evidence concerning a person ’ s involvement in events entailing criminal liability (see also paragraphs 23 and 25 above).

39 . Furthermore, in Mihalache (cited above, §§ 114-15) the Court interpreted the term “final” as follows:

“114. In the light of those considerations, the Court considers that it must, to some extent, interpret the term ‘ final ’ autonomously where this is justified by sound reasons, as indeed it does when establishing whether the legal characterisation of the offence is covered by the notion of ‘ penal procedure ’ (see paragraphs 54 et seq. above).

115. In order to decide whether a decision is ‘ final ’ within the meaning of Article 4 of Protocol No. 7, it must be ascertained whether it is subject to an ‘ ordinary remedy ’ . In establishing the ‘ ordinary ’ remedies in a particular case, the Court will take domestic law and procedure as its starting-point. Domestic law – both substantive and procedural – must satisfy the principle of legal certainty, which requires both that the scope of a remedy for the purposes of Article 4 of Protocol No. 7 be clearly circumscribed in time and that the procedure for its use be clear for those parties that are permitted to avail themselves of the remedy in question. In other words, for the principle of legal certainty to be satisfied, a principle which is inherent in the right not to be tried or punished twice for the same offence (see Nikitin , cited above, § 39), a remedy must operate in a manner bringing clarity to the point in time when a decision becomes final. In particular, the Court observes in this context that the requirement of a time-limit in order for a remedy to be regarded as ‘ ordinary ’ is implicit in the wording of the explanatory report itself, which states that a decision is irrevocable where the parties have permitted the ‘ time-limit ’ to expire without availing themselves of such a remedy. A law conferring an unlimited discretion on one of the parties to make use of a specific remedy or subjecting such a remedy to conditions disclosing a major imbalance between the parties in their ability to avail themselves of it would run counter to the principle of legal certainty (see, mutatis mutandis , Gacon v. France , no. 1092/04, § 34 in fine , 22 May 2008) .”

40 . In Mihalache (cited above, §§ 111-12) the Court further emphasised that one of the main elements of the rationale of the ne bis in idem rule is the principle of legal certainty, so that individuals who have already been convicted or acquitted of a certain offence are not liable to further criminal prosecution in respect of that same offence. The Court stated as follows:

“111. The Court would therefore highlight the importance it attached more recently, in the case of A and B v. Norway (cited above), to the criterion of the foreseeability of the application of the law as a whole as a condition for accepting that “dual” proceedings form part of an integrated scheme of sanctions under domestic law without giving rise to any duplication of proceedings ( ‘ bis ’ ) for the purposes of Article 4 of Protocol No. 7 (ibid., §§ 122, 130, 132, 146 and 152). This criterion is likewise wholly relevant to the ‘ final ’ nature of a decision, as the condition for triggering the application of the safeguard provided for in that Article .

112 . In that context, the Court is obliged to note that under its well-established case-law, the ‘ lawfulness ’ requirement set forth in other provisions of the Convention – including the expressions ‘ in accordance with the law ’ , ‘ prescribed by law ’ and ‘ provided for by law ’ appearing in the second paragraph of Articles 8 to 11 of the Convention and in Article 1 of Protocol No. 1, and the expression ‘ under national [emphasis added] or international law ’ contained in Article 7 – concerns not only the existence of a legal basis in domestic law but also a quality requirement inherent in the autonomous concept of lawfulness; this concept entails conditions regarding the accessibility and foreseeability of the ‘ law ’ , as well as the requirement to afford a measure of protection against arbitrary interferences by the public authorities with the rights safeguarded by the Convention ...”

41 . Turning to the present case, the Court observes that the minor ‑ offence proceedings and the proceedings on indictment against the applicant ran in parallel. At the time when the minor-offence proceedings were terminated, the applicant had already been indicted in a separate set of criminal proceedings in respect of the same facts.

42 . The Court notes that the second-instance ruling of 18 December 2008 terminated the minor-offence proceedings against the applicant on the grounds that the statutory limitation period in respect of the minor offence with which he had been charged in those proceedings had expired. Even though the applicant was tried in the Minor Offences Court, where evidence was presented and his guilt assessed by the court of first instance, the decision adopted by the first-instance court in that trial had never become final. When those proceedings were terminated by the appellate court, none of the evidence taken during the trial at first instance was taken into account, and no elements of the applicant ’ s guilt or innocence were assessed. The appellate court simply held that the statutory limitation period had expired (see paragraph 6 above). Since no further ordinary remedy had been allowed against the second-instance court decision of 18 December 2008, that decision became final on the date of its adoption (see Mihalache , cited above, §§ 99, 103, 105 and 109).

43 . As to whether the decision adopted in the minor-offence proceedings amounted to a conviction, the Court notes that it is clear that this was not the case, since there was no final court ruling in those proceedings to the effect that the applicant was guilty of the charges against him and thus no deterrent or punitive penalty was imposed on him (see paragraph 38 above and contrast Mihalache , cited above, § 101).

44 . As to the question whether the decision constituted an acquittal, the Court refers to the nature of the impugned ruling, which was not based on any investigation into the charges brought against the applicant. Nor was it based on any findings of fact relevant for determining the applicant ’ s guilt or innocence. The decision terminating the minor-offence proceedings against the applicant did not take cognisance of the facts, circumstances or evidence relating to the alleged acts, evaluate them or rule to acquit him. It did not amount to an assessment of whether the applicant bore responsibility for the impugned offence, which would normally precede an acquittal. The appeal court simply held that the statutory limitation period had expired and thus closed the case for purely procedural reasons (see paragraphs 6 , 37 and 38 above).

45 . Against the above background, the Court concludes that the ruling terminating the minor-offence proceedings against the applicant on the basis of the expiry of the statutory limitation period was neither a “conviction” nor an “acquittal” for the purposes of Article 4 of Protocol No. 7 to the Convention. The Court further notes that the applicant had no reason to believe that the expiry of the statutory limitation period in respect of the minor offence he was charged with would in any manner affect the much longer statutory limitation period prescribed in respect of the criminal offence he had been charged with in the separate proceedings on indictment. The application of the longer statutory limitation period was neither unforeseeable nor arbitrary (see paragraph 40 above). Thus, although the ruling in minor-offence proceedings was final, it did not preclude the continuation of the parallel criminal proceedings.

46 . It follows that Article 4 of Protocol No. 7 to the Convention is not applicable in the present case and that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a), and must be rejected in accordance with Article 35 § 4.

47 . The applicant also complained that the criminal proceedings against him had been unfair, alleging that the domestic courts had erred in their assessment of the facts and evidence. He also complained about the manner in which the parties ’ closing arguments had been made. He relied on Article 6 § 1 of the Convention, the relevant part of which reads:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

48 . The Court notes that the applicant complained about the outcome of the proceedings, which the Court is unable to examine under Article 6 § 1 of the Convention. The applicant did not complain, and there is no evidence to suggest, that the domestic courts lacked impartiality or that the proceedings were otherwise unfair. In the light of all the material in its possession, the Court considers that in the present case the applicant was able to submit his arguments before courts, which offered the guarantees set forth in Article 6 § 1 of the Convention and which addressed those arguments in decisions that were duly reasoned and not arbitrary.

49 . The applicant further complained that after the prosecution had made its closing arguments, he had had no chance to respond to them. The Court notes that the applicant ’ s counsel made his closing arguments at the final hearing before those of the prosecution (see paragraph 8 above). Article 6 cannot be interpreted as giving to the accused the right to make the closing arguments twice or in a particular order.

50 . It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

51 . The applicant complained that the rules concerning the statutory limitation period in the criminal proceedings against him had been applied retroactively. He relied on Article 7 of the Convention, which reads as follows:

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”

52 . The Court reiterates that the guarantees under Article 7 of the Convention do not apply to the rules on statutory limitation periods when the extension of the statutory limitation period occurred prior to the expiry of the initially prescribed statutory limitation period (see Coëme and Others v. Belgium , nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 149, ECHR 2000 ‑ VII, and Previti v. Italy (dec.), no. 1845/08, 12 February 2013).

53 . In the instant case, the impugned criminal offence was committed on 16 October 2005 and the initial statutory limitation period after which no prosecution was possible was four years. Following amendments to the Criminal Code, which entered into force on 1 October 2006, that period was extended to six years. The Court notes that the new, longer statutory limitation period had been introduced before the expiry of the initial statutory limitation period. The situation in the present case therefore does not differ from those in the above-cited cases of Coëme and Others and Previti .

54 . It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 5 December 2019 .

Abel Campos Krzysztof Wojtyczek Registrar President