Information Note on the Court’s case-law 73

March 2005

Horciag v. Romania (dec.) - 70982/01

Decision 15.3.2005 [Section II]

Article 4 of Protocol No. 7

Right not to be tried or punished twice

Decision of provisional psychiatric detention and non final order that there were no grounds for prosecution, followed by a criminal conviction for the same facts: Article 4 of Protocol No. 7 inapplicable

The applicant con fessed to a murder committed with a bladed weapon. The prosecution ruled that there was no case to answer since psychiatric assessments had concluded that the applicant, who suffered from psychological disorders, had committed the murder at a time when his powers of discernment had been destroyed, so that he could not held criminally responsible and his actions could not be punished under the criminal law. As a security measure, the prosecution ordered his provisional internment until he was cured. That mea sure was confirmed by a court. Doctors expressed doubts as to the applicant’s lack of criminal responsibility. The prosecuting authorities subsequently ordered the resumption of the proceedings with a view to carrying out further investigative measures. Tw o collective expert assessments concluded that the murder had been committed when the applicant’s powers of discernment had merely been impaired and that he was fit to be detained in a prison environment. The criminal law was applied to the applicant and h e was found guilty and sentenced to a term of imprisonment. The applicant considered that he had been prosecuted and tried twice for the same offence.

Inadmissible under Article 4 of Protocol No. 7: The non bis in idem principle applied only after a person had been finally acquitted or convicted in accordance with the law and penal procedure of the State concerned.

The prosecution had ruled that there was no case to answer, but its ruling could still be set aside by a higher authority and was therefore not final. The court had endorsed the applicant’s provisional psychiatric internment without ruling on his criminal responsibility. The provisional measure had not ruled out the resumption of the proceedings. There could not be said to have been an “acquittal” within the meaning of the Article in question, but rather a preventive measure not entailing any examination or finding as to the applicant’s guilt. In short, in the absence of a final decision irrevocably terminating the criminal proceedings, their resum ption had merely amounted to the continuation of the initial proceedings. Article 4 of Protocol No. 7 was therefore not applicable: incompatible ratione materiae .

© Council of Europe/European Court of Human Rights This summary by the Registry does not bin d the Court.

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