Communicated on 18 December 2014

THIRD SECTION

Application no. 50266/13 Nicolae MIHAI against Romania lodged on 29 July 2013

STATEMENT OF FACTS

The applicant, Mr Nicolae Mihai , is a German national, who was born in 1958 and lives in Schwabmunchen . He is represented before the Court by Mr R.I. Motica , a lawyer practising in Timisoara .

A. The circumstances of the case

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

On 6 May 2008 the applicant accompanied his mother to the TimiÈ™ County Court where she was party to civil proceedings against S.I. in connection with a plot of land.

The applicant entered the premises of the court carrying a weapon and four cartridges. Following an exchange of remarks between the applicant and S.I., the latter pushed the applicant in the courtroom during the hearing. His unexpected entrance with a gun in his hand generated panic and the hearing was immediately suspended. The incident was videotaped.

The police officer ensuring the order of the hearing confiscated his weapon and ammunition. He drew up a report describing the applicant ’ s conduct.

On 9 May 2008 the applicant was ordered to pay an administrative fine of 2,000 Romanian lei (the equivalent of approximately 500 euros) for committing the criminal administrative offence of carrying a non-lethal weapon in a court of justice, contrary to Articles 62 § 2 (a) and 132 point 22 of Law 295/2004. The decision of the administrative authorities remained final as the applicant did not challenge it.

On 13 October 2008 a criminal investigation in connection with the incident of 6 May 2008 was initiated against the applicant. On 21 November 2008 the applicant was remanded in custody. On 16 March 2009 he was released from prison under judicial control.

On 15 December 2008 the applicant was charged with two concurrent offences arising from the same act, namely the offence of non-observance of the regulations concerning firearms and ammunition (“ nerespectarea regimului armelor si munitiilor ”) under Article 279 § 3 of the Criminal Code and the offence of outrage to public decency and breach of public order (“ ultraj contra bunelor moravuri si tulburarea ordinii publice ”) under Article 321 § 1 of the Criminal Code.

On 7 March 2011 the Timisoara District Court found the applicant guilty as charged and sentenced him to five years and four months ’ imprisonment, suspended on probation.

The applicant lodged an appeal in cassation, claiming among other things, that he had already paid an administrative fine in connection with the same facts.

On 22 September 2011 the Timisoara Court of Appeal allowed the appeal in cassation lodged by the applicant, set aside the judgment and sent the case back to the district court. The appeal court found that the facts had been well-established by the first-instance court but the court had omitted to mention in the operative part that the period spent by the applicant under pre-trial detention should be deducted from the imposed sentence.

On 1 October 2012 the Timisoara District Court convicted the applicant as charged and sentenced him to five years and four months ’ imprisonment with effective execution.

On 19 February 2013 the Timisoara Court of Appeal dismissed the appeal on points of law lodged by the applicant as unfounded.

B. Relevant domestic law

1. Law 295/2004 on firearms and ammunition

Article 62 § 2 (a) of the law, as in force at the material time, prohibited the access of persons carrying non-lethal arms in places where the use of such arms was forbidden by law.

According to Article 132 point 22 the breach of Article 62 was considered an administrative offence. A fine between RON 1,000 and 2,000 was provided by Article 133 (c) for committing such an offence.

Article 135 stipulated that the administrative offences under Article 132 were governed by the provisions of Government Ordinance no. 2/2001 on administrative offences.

2. Government Ordinance no. 2/2001 on administrative offences approved with further amendments by Law no.180/2002

Article 31 of the ordinance, as in force at the relevant time, provided that the decision imposing an administrative penalty (“ procesul verbal de constatare a contraventiei ”) might be challenged by way of judicial review within fifteen days after it was served.

The complaint and all the relevant documents were sent to the court in whose jurisdiction the administrative offence was committed.

3. The relevant provisions of the Criminal Code

The unlawful carrying of firearms in the buildings belonging to public authorities was prohibited u nder Article 279 § 3 of the Criminal Code, as in force at the material time. The offence was punishable by imprisonment of between five to fifteen years.

Acts which seriously breached public order were punishable u nder Article 321 § 1 of the Criminal Code, as in force at the material time , by imprisonment of between two and seven years.

COMPLAINT

The applicant complains in substance under Article 4 of Protocol No. 7 to the Convention that he was convicted for the same offence for which he had been already fined by the administrative authorities.

QUESTION TO THE PARTIES

Was the applicant ’ s conviction for a firearms offence following his administrative conviction for carrying a non-lethal weapon in a court of justice compatible with Article 4 § 1 of Protocol No. 7?