Information Note on the Court’s case-law 231

July 2019

Mihalache v. Romania [GC] - 54012/10

Judgment 8.7.2019 [GC]

Article 4 of Protocol No. 7

Right not to be tried or punished twice

Reopening by a higher authority of its own motion, without any new facts or fundamental defects requiring correction, of criminal proceedings that had been replaced by an administrative fine: violation

Facts

First set of proceedings : In August 2008, finding that the acts committed were not sufficiently serious to constitute a criminal offence, the public prosecutor’s office discontinued criminal proceedings that had been instituted against the applicant for refusing to give a biologi cal sample in order to determine his blood alcohol level. An administrative fine (EUR 250) was imposed on him instead. The applicant did not challenge that decision within the twenty-day time-limit prescribed by domestic law and paid the fine.

Second set of proceedings : In January 2009, finding that the circumstances and the danger to society of the applicant’s acts meant that a mere administrative penalty was inadequate, the higher-ranking prosecutor’s office set aside the discontinuance order and the adm inistrative fine imposed in the first set of proceedings. The applicant was subsequently given a suspended sentence of one year’s imprisonment; the court held that the ne bis in idem principle could not be validly relied on, since the discontinuance order did not amount to a judgment entailing a conviction or acquittal. The applicant took no action on an offer to reimburse the fine he had paid.

Law – Article 4 of Protocol No. 7: The fine imposed could be deemed to constitute a criminal penalty. The facts to which the two sets of proceedings had related had been the same (“ idem ”). It remained to be determined whether there had been a duplication of proceedings (“ bis ”).

(a) Preliminary observations: whether the two sets of proceedings were complementary

No. T he two sets of proceedings had concerned a single offence punishable by the same legal provision; they had pursued the same general purpose, had been conducted by the same prosecuting authority and the evidence had been the same. They had taken place one a fter the other and had not been conducted simultaneously at any time. Furthermore, the two penalties had not been combined: either one or the other should have been imposed depending on whether the investigating authorities characterised the facts as const ituting a criminal offence.

(b) Whether the prosecutor’s order could be regarded as a “final acquittal or conviction”

(i) Concepts of acquittal and conviction

– Whether judicial intervention is necessary – For a decision to be taken into account for these purposes, the intervention of a court was unnecessary. What mattered was that the decision in question had been given by an authority participating in the administration of justice in the national legal system concerned, and that that authority was competent under domestic law to establish and, as appropriate, punish the unlawful behaviour of which the person had been accused. It was of little consequence that the decision in question did not take the for m of a judgment, since such a procedural and formal aspect could not have a bearing on its effects.

– When can an accused person be said to have been “acquitted” or “convicted”? – The deliberate choice of the words “acquitted or convicted” in the text of Protocol No. 7 implied that the accused’s “criminal” responsibility had been established following an assessment of the circumstances of the case. In order for such an assessment to take place, it was vital that the authority giving the decision was vested by domestic law with decision-making power in that regard. The finding that there had been an assessment of the merits of the case could be supported by the progress of the proceedings. This applied, for example, where (i) a criminal investigation had bee n initiated with charges brought against the accused, the victim had been interviewed, the evidence had been gathered and examined by the competent authority, and a reasoned decision had been given on the basis of that evidence; or (ii) where a penalty had been ordered by the competent authority as a result of the behaviour attributed to the accused.

– Considerations specific to the present case – Having regard to the investigation conducted by the prosecutor, the powers conferred on him under domestic law and the fact that a deterrent and punitive penalty had been imposed on the applicant, the order in question had indeed entailed a “conviction”, within the substantive meaning of the term.

(ii) Whether the applicant’s initial “conviction” by the public pr osecutor’s office was “final”

Although the text of Article 4 of Protocol No. 7 included an explicit reference to the law of the State which had given the decision in question, the Court’s case-law nevertheless suggested that the term “final” was, to a cert ain extent, to be interpreted autonomously where this was justified by sound reasons.

A decision was to be regarded as “final” where it was no longer subject to an “ordinary remedy”. In establishing the “ordinary” remedies in a particular case, the Court t ook domestic law and procedure as its starting-point. The principle of legal certainty required, firstly, the scope of such a remedy to be clearly circumscribed in time and, secondly, the procedure for its use to be clear for the parties permitted to avail themselves of it. In other words, the remedy had to operate in a manner bringing clarity to the point in time when a decision became final.

– Application of the above principles in the present case – The possibility for the higher-ranking prosecutor’s o ffice to reopen the proceedings of its own motion without being bound by any time-limit had not constituted an “ordinary remedy”. It was thus irrelevant to the determination of whether the applicant’s initial conviction had been “final” within the autonomo us meaning of Article 4 of Protocol No. 7.

Only the option available to the applicant of challenging the discontinuance order could be regarded as a “ordinary” remedy, in that its use was restricted to a time-limit of twenty days. It was therefore on the e xpiry of that time-limit, which the applicant had allowed to elapse, that the order in question had become “final”, within the autonomous Convention meaning of the term – long before the higher-ranking prosecutor had exercised his discretion to reopen the criminal proceedings.

(c) Whether the duplication of proceedings fell within the permitted exceptions to its prohibition in principle

(i) Conditions permitting the reopening of a case – Under Protocol No. 7, the reopening of proceedings was possible but was subject to strict conditions: (i) the emergence of new or newly discovered facts or (ii) the discovery of a fundamental defect in the previous proceedings. Those conditions were alternative and not cumulative. However, in both cases, the newly discove red facts or defect had to be such as to “affect the outcome of the case”, either in favour of or to the detriment of the person concerned. The Court performed a case-by-case assessment of whether the circumstances relied upon by a higher-level authority s atisfied those conditions.

The concept of “fundamental defect” appeared to suggest that only a serious violation of a procedural rule severely undermining the integrity of the previous proceedings could serve as the basis for reopening the latter to the d etriment of the accused, where he or she had been acquitted of an offence or punished for an offence less serious than that provided for by the applicable law. The mere reassessment of the evidence by the public prosecutor or the higher-level court could n ot fulfil that criterion. In cases where the intended reopening of proceedings might work to the accused’s advantage, the nature of the defect had be assessed primarily in terms of whether there had been a violation of defence rights and hence an impedimen t to the proper administration of justice.

(ii) Application in the present case – The higher-ranking prosecutor had sought to examine the same facts. There had been no “new” evidence in the file, and nor had there been any “fundamental defect” requiring correction. These two scenarios did not cover either the ground expressly stated in the reopening order (a fresh assessment of the facts) or any underlying desire to standardise practice among prosecutors’ offices in assessing the “seriousness” of certain types of conduct.

In short, the strict conditions set out in paragraph 2 of this Article had not been satisfied.

Conclusion : violation (unanimously).

Article 41: EUR 5,000 in respect of non-pecuniary damage.

© Council of Europe/European Court of Human Rig hts This summary by the Registry does not bind the Court.

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