THIRD SECTION

Application no. 54012/10 Erik Aurelian MIHALACHE against Romania lodged on 10 September 2010

STATEMENT OF FACTS

The applicant, Mr Erik Aurelian Mihalache , is a Romanian national, who was born in 1975 and lives in Tulnici . He is rep resented before the Court by Mr M. Bratu , a lawyer practising in Foc ÅŸ ani .

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

On 2 May 2008, at approximately 1 a.m., while the applicant was driving his car, a police patrol stopped the car and asked him to produce his identity car and driving licence. As the police officers felt that the applicant smelt of alcohol he was breathalysed. With a view to ascertaining the exact blood ‑ alcohol level the police officer invited him to the local hospital for a blood test. The applicant refused invoking that he had health problems and therefore he did not agree to give a sample of blood.

On 17 June 2006 a criminal investigation was initiated against the applicant for refusal to give biological evidence at the request of police.

On 7 August 2008 the prosecutor ’ s office attached to Focşani District Court decided to discontinue the criminal proceedings against the applicant. It held that the acts committed by the applicant did not attain the gravity of a criminal offence and sentenc ed him to a fine of 1.000 Romanian lei (ROL) (the equivalent of 250 euros).

The applicant alleged that he had paid the fine.

The prosecutor ’ s decision was not challenged within twenty days as provided for by the Criminal Code of Procedure. According to the applicant, he had paid the fine.

On 7 January 2009 the same prosecutor ’ s office invalidated its previous decision of 7 August 2008 and decided to re-open the criminal proceedings against the applicant in connection with the same offence, namely his refusal to give a sample of biological evidence. It considered that an administrative fine was a too lenient sanction for the gravity of the offence allegedly committed by the applicant.

A bill of indictment was issued on 24 March 2009 and the applicant ’ s file was registered with the Focş ani District Court.

On 18 November 2009 the first-instance court found the applicant guilty as charged and sentenced him to a suspended one year ’ s imprisonment.

The applicant appealed asking to be acquitted. He claimed that he had just refused to give a sample of blood but that he had not refused to give a sample of urine or saliva.

On 10 February 2010 the V â lcea County Court dismissed the applicant ’ s appeal upholding the judgment of the first-instance court on the same reasons.

The applicant filed an appeal on points of law. The applicant also claimed that the first two courts had not thoroughly examined the reasons invoked by him concerning his innocence. In this respect he emphasised that he had refused to give a sample of blood but that he had nothing against giving a sample of urine or saliva. He also claimed that the principle non bis in idem was infringed as he had already been prosecuted and punished for his refusal to give a sample of biological evidence.

On 14 June 2010 the Gala ţ i Court of Appeal dismissed the applicant ’ s appeal. It held that according to the evidence in the file the applicant had refused to give any sample of biological evidence (not only a sample of blood) because he had simply refused to accompany the police officers to a medical unit. As regards the infringement of the principle non bis in idem , the court held that the re-opening of the proceedings was based on Article 273 § 1 of the Romanian Code of Criminal Procedure according to which the re-opening of the proceedings could be done anytime and even in the absence of a complaint against the prosecutor ’ s decision.

Relevant domestic law

The relevant part of the Romanian Code of Criminal Procedure, as in force at the material time, reads as follows:

Article 249 1

“ (3) The prosecutor ’ s decision to discontinue the criminal invest igation on the basis of Article 10 letter b1 could be challenged within twenty days from the day of its notification (...).

(4) The execution of the prosecutor ’ s decision by which an administrative fine has been imposed is carried out after the expiry of the period stipulated in paragraph 3, and if a complaint has been filed and dismissed, after its dismissal.”

Article 273

“(1) The re-opening of the criminal investigation in case the discontinuance of the criminal investigation has been ordered, occurs only if one finds that the situation that determined the enforcement of this measure did not actually exist or the circumstance on which the discontinuance was based has disappeared ( ... ).”

COMPLAINT

The applicant complains under Article 4 of Protocol No. 7 that he was prosecuted and convicted twice for the same offence.

QUESTION TO THE PARTIES

Has the applicant been prosecuted and convicted twice for the same offence in the territory of the respondent State, as prohibited by Ar ticle 4 § 1 of Protocol No. 7?