CONCURRING OPINION OF JUDGE BOÅ NJAK, JOINED BY JUDGE SERGHIDES

1. I agree with my colleagues that in the present case there has been a violation of Article 4 of Protocol No. 7 of the Convention. In this concurring opinion, I wish to raise two particular points. The first one has not been addressed by the Grand Chamber, while on the other point my views differ slightly from the majority of the other judges in the composition.

2. Firstly, I have seen the present case as an opportunity for the Court to provide some guidance on the emerging consensual model in criminal proceedings, where the outcome of a criminal case is determined by the parties, possibly without any involvement by a court. The first act of this case at the domestic level could be understood as an example (perhaps not the most representative one) of such a consensual model, where, on one hand, the prosecutor decided to discontinue the criminal proceedings against the applicant and imposed an administrative sanction instead, while, on the other hand, the applicant renounced challenging this discontinuance decision and paid the fine and the fees imposed (see paragraphs 13-15 of the judgment). There is nowadays an abundance of such “alternative dispute resolutions” in modern criminal proceedings. Their primary function is to finally close a criminal case. The effect of such closure must, by its very nature, be equated with the effect of an adjudication on a criminal charge by a court. It would be illogical to allow a criminal case previously terminated on the basis of a transaction/settlement between the prosecutor and the suspect or on the basis of victim-offender mediation to be “reopened” at the unilateral discretion of the prosecutor, having decided that the content of the initial resolution was inadequate for any reason.

3. Alternative dispute resolutions in criminal proceedings were addressed long ago by the case-law of our Court, notably in the context of a waiver of access to a court (see Deweer v. Belgium , 27 February 1980, Series A no. 35). The Court has acknowledged the undeniable advantages of such resolutions for the individual concerned as well as for the administration of justice. Consequently, it has ruled that they do not in principle run counter to the Convention. If a party is considered to be entitled to waive the right of access to a court by resorting to a settlement or to another form of alternative dispute resolution of a criminal case, I believe the time has come to afford “ ne bis in idem ” effect to such de facto settlements.

4. On numerous occasions the Court has stated that the Convention is a living instrument (see, among many other authorities, Selmouni v. France [GC], no. 25803/94, ECHR 1999 ‑ V, and Rantsev v. Cyprus and Russia , no. 25965/04, ECHR 2010 (extracts)), and has therefore adopted an autonomous interpretation of specific provisions. Accordingly, I believe it would be appropriate to equate the outcomes of consensual alternative dispute resolutions, like settlements, transactions and compositions in criminal cases with a “final acquittal or conviction” within the meaning of Article 4 of Protocol No. 7 of the Convention.

5. The Grand Chamber did not address this issue in the present case. Therefore, I find it necessary to point out that the second sentence of paragraph 99 of the judgment (stating that Article 4 of Protocol No. 7 of the Convention is not applicable to simple discontinuance orders) should be interpreted without prejudice to alternative dispute resolutions in criminal proceedings. While these resolutions often result in discontinuance orders, such prosecutorial decisions are regularly made conditional upon a specific action to be undertaken by the suspect/accused (for example, repaying or compensating for damage caused by the offence, performing community service, effecting payments of various types, or undergoing treatment or training). Consequently, such discontinuance orders may not be considered as “simple discontinuance orders” within the meaning of § 99 of the judgment in the present case. In other words, the Court has yet to decide whether alternative dispute resolutions in criminal cases have any bearing on the interpretation of the “final acquittal or conviction” concept and the consequent applicability of Article 4 of Protocol No. 7 of the Convention.

6. The other issue I wish to raise in this concurring opinion is the majority’s understanding of the notion of “remedy”. The judgment considers the setting aside of the initial order by the higher-ranking prosecutor (see paragraph 16 of the judgment) to be a remedy designed to challenge the sanction imposed upon the applicant by the initial prosecutor’s order (see, for example, paragraphs §§ 124 and 134 of the judgment). With all due respect, I disagree with such a view. In particular, I do not believe that the higher-ranking prosecutor’s setting aside of the initial order can be considered a remedy.

7. There are many definitions of the term “remedy”; in the context of the present case or criminal procedure in general, a legal remedy would normally mean a legal avenue for a party to the proceedings to challenge a decision or a judgment which that party considers unlawful or wrongful. This does not seem to be the case here. The party to the initial proceedings, namely the prosecution, unilaterally set aside its own discontinuance order. This setting aside did not have the nature of a challenge to the initial order before the court or before any other third authority. Nor did the fact that the prosecutor subsequently brought charges in court against the applicant on the same facts constitute a challenge to the initial order. Contrary to paragraphs 124 and 134 of the judgment, the applicant’s trial in Focşani District Court was geared not to reviewing whether the initial discontinuance order was well-founded but to adjudicating whether the charges as subsequently filed against the applicant were well-founded.

8. Therefore, I tend to think that the only legal remedy available against the initial order was that provided under Article 249-1 of the Code of Criminal Procedure (see paragraph 34 of the judgment). When the deadline for it has expired, the decision to discontinue the proceedings became final. The analysis as to whether the subsequent setting aside by the higher-ranking prosecutor is to be considered as an “ordinary” or “extraordinary” legal remedy seems to me rather redundant, as does the discussion of its foreseeability, time-limits and any inequality between the parties.

[1] It is true that the judgment introduces the foreseeability criterion in § 111, with reference to the Grand Chamber judgment in the case of A. and B. v. Norway . However, the issue at stake in Mihalache is very different from the approach, deemed acceptable, of mixing or combining criminal proceedings with administrative proceedings: in the present case there is basically a single set of criminal proceedings, which was interrupted and then resumed, without combining sanctions but with a criminal penalty replacing an administrative sanction.

[2] It should be noted that the imbalanced nature of the conditions for exercising the remedy is not an appropriate criterion either. The judgment further mentions that the discrepancy between the time-limits afforded to the parties (20 days for the applicant an no time-limit for the prosecutor’s office) “resulted in a major imbalance between the parties in their ability to make use of the remedies in question, such as to place the applicant in a situation of legal uncertainty” (see paragraph 124 in fine ). However, it seems inappropriate to introduce this imbalance concept, for two reasons:

– first of all, it is true that the applicant could not have finally known his fate for as long as the remedy was available to the prosecutor’s office. However, that applies to all remedies unaccompanied by time-limits, and the wording of paragraph 124 suggests that the prosecutor’s office’s remedy was not extraordinary but unlawful;

– secondly, going even further, one might wonder whether imbalance in the accessibility of a remedy is a criterion enabling that remedy to be designated as extraordinary. One might imagine that for a given remedy – and that is, or has been, the case in a number of countries – the convicted person had a certain period of time for appealing and the prosecution had a longer period, sometimes much longer (whereby the convicted person was deprived of the opportunity to lodge a cross-appeal). That might have meant that the remedy in question was unlawful, but it certainly did not render it extraordinary (see Ben Naceur v. France , no. 63879/00, 3 October 2006, §§ 34 to 40).

[3] See among many other sources, Consultative Council of European Prosecutors (CCPE) Opinion No. 2 (2008) on “Alternatives to prosecution”; Opinion No. 9 (2014) on European norms and principles concerning prosecutors, XVII, Explanatory note, §§ 28-32; and 21 Principles for the 21 st Century Prosecutor, Brennan Center for Justice, 2018, p. 4: “Well-designed programs that divert people from jail or prison, or from the justice system entirely, can conserve resources, reduce reoffending, and diminish the collateral harms of criminal prosecution.”

[4] See, for example, judgment no. 1898 delivered on 16 March 2012 by the High Court of Cassation and Justice and judgment no. 314/R delivered on 24 February 2009 by the Vâlcea County Court.

[5] Since 1 February 2014 any decision to reopen criminal proceedings is subject to judicial scrutiny. The prosecutor must submit the order for the reopening of the proceedings for confirmation by a court within three days of the decision, failing which the reopening will be null and void (Article 335 (4 of the New Code of Criminal Procedure).

[6] See Stoianova and Nedelcu v. Romania , nos. 77517/01 and 77722/01, § 21, ECHR 2005 ‑ VIII.

[7] See Horciag v. Romania (dec.), no. 70982/01, 15 March 2005.

[8] Contrary to the assumption in paragraphs 96 and 107 of the judgment.

[9] Contrary to the opinion expressed in paragraph 106 of the judgment.

[10] That is why the minority make such a strenuous effort to affirm that the final character of a decision in a given case does not depend exclusively on domestic law (paragraphs 104-108 and 126 of the judgment).

[11] See Article 4 § 1 of Protocol 7.

[12] See paragraph 108 of the judgment.

[13] See paragraph 116 of the judgment.

[14] It is to be noted that in A and B v. Norway (GC) , nos. 24130/11 and 29758/11, 15 November 2016, the Court also neglected the comparative law information and in Sergey Zolothukin v. Russia [GC], no. 14939/03, ECHR 2009, only referred to the double-jeopardy rule under the Fifth Amendment to the United States Constitution. It is true that Article 4 of Protocol 7 is a provision from which no derogation is permissible, and therefore there is no margin of appreciation for Contracting Parties to the Convention based on the lack of a European consensus on issues regarding ne bis in idem (see my opinion in A and B v. Norway , cited above, § 22). But this does not mean that the comparative-law information on the legal situation prevailing in the Contracting Parties to the Convention should be entirely neglected, as it was in the present case.

[15] . Art. 290 CCP.

[16] . Art. 35 CCP.

[17] . Arts. 190-192 CCP.

[18] . Art. 39 CCP.

[19] . Art. 28 quater (1) combined with Annex 1 of Circular no. COL 12/98.

[20] . Art. 224(1) CCP.

[21] . Art. 206(1) CCP.

[22] . Arts. 171-173 CCP.

[23] . Art. 199 CCP.

[24] . Art. 6 CCP.

[25] . Art. 40 CCP.

[26] . Art. 105 CCP.

[27] . Arts. 153-154f and 170(2) of the CCP.

[28] . Art. 398 CCP.

[29] . Arts. 377 and 379 CCP.

[30] . Art. 158(2) CCP.

[31] . Art. 212 CCP.

[32] . There is no article presenting the reasons. The principle of “ opportunité des poursuites ” guides the prosecutor in taking his decision.

[33] . Art. 304 CCP.

[34] . Art. 275 CCP.

[35] . Art. 294 CCP.

[36] . Art.224 CCP, inter alia .

[37] . Art. 17(1) CCP.

[38] . Art. 277 CCP.

[39] . Arts. 25-28 CCP.

[40] . Art. 135 CPP.

[41] . Art. 284 CCP.

[42] . Arts. 215, 216 and 218 CCP.

[43] . Art. 161 of the CCP.

[44] . Art. 637 and 641 CPP

[45] . Arts. 310 and 319 CCP.

[46] . Art. 284 CCP.

[47] . Ireland, Monaco, the Netherlands, Sweden and the United Kingdom (England and Wales).

[48] . These States are Austria, Belgium, Croatia, Czech Republic, Finland, France, Georgia, Liechtenstein, Lithuania, Luxembourg, Germany, Monaco, Montenegro, the Netherlands, Norway, Portugal, Russian Federation, San Marino, Slovakia, Slovenia, Spain, Switzerland and the United Kingdom (England and Wales).

[49] . Armenia, Azerbaijan, Estonia, Ireland, Hungary, Moldova, Poland and Sweden.

[50] . Bosnia and Herzegovina, North Macedonia and Serbia.

[51] . Albania, Armenia, Austria, Azerbaijan, Bosnia and Herzegovina, Croatia, Czech Republic, Estonia, Finland, France, Georgia, Germany, Hungary, Latvia, Lithuania, Luxembourg, Moldova, Montenegro, Poland, Portugal, Serbia, Slovakia, Slovenia, Sweden, Switzerland and Ukraine.

[52] . The United Kingdom (England and Wales), Ireland, Liechtenstein, Monaco and San Marino.

[53] . Netherlands, Russian Federation, Spain and Turkey.

[54] . Belgium, North Macedonia and Norway.

[55] . Austria, Azerbaijan, Bosnia and Herzegovina, Croatia, Estonia, Finland, France, Georgia, Germany, Hungary, Ireland, Lithuania, Luxembourg, North Macedonia, Moldova, Montenegro, Norway, Poland, Portugal, San Marino, Serbia, Slovakia, Slovenia, Spain, Sweden, Turkey, Ukraine and the United Kingdom (England and Wales).

[56] . Czech Republic, Finland, Georgia, Hungary, Latvia, Lithuania, Moldova, Montenegro, Norway, Poland, San Marino, Slovakia, Sweden and Ukraine.

[57] . Albania, Armenia, Bosnia and Herzegovina, Finland, France, Hungary, Latvia, Lithuania, Moldova, Monaco, the Netherlands (the directly interested party), Norway, Russian Federation, Switzerland, and United Kingdom (England and Wales).

[58] . Bosnia and Herzegovina, France and Lithuania (in certain cases) and Poland.

[59] . Albania, Austria, Azerbaijan, Bosnia and Herzegovina, Croatia, France, Ireland, Liechtenstein, Lithuania, North Macedonia, Monaco, Montenegro, the Netherlands, San Marino, Serbia and Spain.

[60] . Armenia, Belgium (only in case of new evidence), Estonia , Finland, Georgia, Germany, Latvia, Hungary, Luxembourg, Moldova, Norway (if no one has been charged before), Poland (only in case of new evidence), Portugal, Slovenia (only very exceptionally), Sweden, Turkey and Ukraine.

[61] . The only obstacle being the limitation period of criminal liability for the act.

[62] . Czech Republic, Norway, Poland, Russian Federation, Slovakia and the United Kingdom (England and Wales).

[63] . Armenia, Belgium, Croatia (for reopening of the proceedings by the court), Estonia , Georgia, Hungary, Latvia, Luxembourg, Moldova, Montenegro (for reopening of the proceedings by the court), the Netherlands (for reopening of the proceedings by the court), Norway, Poland, Portugal, San Marino (for reopening of the proceedings by the same investigative judge), Slovakia, Slovenia, Spain (for reopening of the proceedings by the same investigative judge), Sweden, Switzerland and Turkey.

[64] . Armenia, Croatia, Czech Republic, Estonia, Georgia, Hungary, Latvia, Moldova, Portugal, the Russian Federation, Slovakia, Slovenia and United Kingdom.

[65] . Hungary, Luxembourg, Poland and Portugal.

[66] . See §§ 13 (f) and 34.

[67] . See §§ 9, 52-54.

[68] . See §§ 13 and 18.

[69] In Piotr Kossowski v. Generalstaatsanwaltschaft Hamburg [GC], Case C-486/14, 29 June 2016, it is stated that the CJEU relies on Article 54 CISA “read in the light of Article 50 of the Charter”. There is therefore no need to consider those provisions separately.

[70] . Furthermore, according to Article 52 of the Charter and the case-law of the CJEU, Article 50 of the Charter must be interpreted in conformity with Article 4 of Protocol No. 7 to the Convention as adopted on 22 November 1984.

[71] . CJEC, 11 February 2003, Hüseyin Gözütok and Klaus Brügge , joined cases C-187/01 and C-385/01, § 28.

[72] . Ibid, § 31.

[73] . Ibid., § 38.

[74] . Ibid., § 27 et seq.

[75] . CJEU, 11 December 2008, Bourquain, C-297/07, § 34.

[76] . CJEC, 22 December 2008, Vladimir Turanský , C-491/07, § 30.

[77] . CJEU, 5 June 2014, M ., C-398/12 , § 17.

[78] . Piotr Kossowski v. Generalstaatsanwaltschaft Hamburg , cited above, § 15 .

[79] . See Vladimir Turanský , cited above, §§ 31-32 and §§ 34-35; Hüseyin Gözütok and Klaus Brügge , cited above, § 30; and CJEC, 28 September 2006, Van Straaten , C-150/05, § 61.

[80] . See Piotr Kossowski v. Generalstaatsanwaltschaft Hamburg , cited above, § 47.

[81] . Ibid., § 54.

[82] . CJEC, 10 March 2005, Miraglia , Case C-469/03.

[83] . Ibid., § 30.

[84] . Ibid., § 33.

[85] . Ibid., § 34.

[86] . Van Straaten , cited above, § 60.

[87] . M. , cited above, § 30.

[88] . CJEU, 27 May 2014, Spasic , C-129/14, § 74.

[89] . Ibid., § 79.

[90] . Ibid., § 85.

[91] . Piotr Kossowski v. Generalstaatsanwaltschaft Hamburg , cited above, § 41.

[92] . CJEU, 18 July 2007, Kretzinger , C-288-05, § 42.

[93] . Bourquain, cited above, § 48.

[94] . Krombach v. France (dec.), no. 67521/14, § 40, 20 February 2018.

[95] . The traditional position of the Court is described in paragraph 110 of the present judgment.

[96] . Miraglia , cited above, §§ 32-33.

[97] . See my opinion in A and B v. Norway , cited above, § 79.

[98] . See paragraph 83 of the judgment.

[99] . See my opinion in A and B v. Norway.

[100] . Johannesson and Others v. Iceland , no. 22007/11, 18 May 2017.

[101] . Ibid., § 55.

[102] . As in A and B v. Norway , cited above, §§ 126 and 142, the Chamber in the Icelandic case did not find it necessary to determine whether and when the first set of proceedings – the tax proceedings – became “final” as this circumstance did not affect the assessment of the relationship between the tax and the criminal proceedings. See the critique to this erroneous approach in my separate opinion in A and B v . Norway , cited above.

[103] . See paragraph 84 of the judgment.

[104] . Ibid.

[105] . See paragraph 85 of the judgment.

[106] . See paragraph 84 of the judgment.

[107] . See paragraph 28 of the judgment.

[108] . See paragraph 30 of the judgment.

[109] . This is accepted by the minority in paragraph 127 of the judgment.

[110] . See paragraph 84 of the judgment.

[111] . See A and B v. Norway , cited above, § 134 “where the connection in substance is sufficiently strong, the requirement of a connection in time nonetheless remains and must be satisfied. This does not mean, however, that the two sets of proceedings have to be conducted simultaneously from beginning to end. It should be open to States to opt for conducting the proceedings progressively in instances where doing so is motivated by interests of efficiency and the proper administration of justice, pursued for different social purposes, and has not caused the applicant to suffer disproportionate prejudice.”

[112] . In previous cases the Court found that there was sufficient connection in time with longer periods. I have already demonstrated that the “sufficient connection in time” criterion is arbitrary (my opinion in A and B v. Norway , cited above, §§ 40-46).

[113] . See paragraph 95 of the judgment.

[114] . Ibid.

[115] . To use the CJEU’s expression in Miraglia , cited above, § 23.

[116] . Marguš v. Croatia (GC), 4455/10, 27 May 2014.

[117] . See paragraphs 96 and 99 of the judgment.

[118] . See paragraph 131 of the judgment.

[119] . See paragraph 133 of the judgment.

[120] . See paragraph 101 of the judgment.

[121] . See paragraph 97 of the judgment.

[122] . Ibid.

[123] . Ibid.

[124] . Ibid.

[125] . See Piotr Kossowski v. Generalstaatsanwaltschaft Hamburg , cited above, and Vladimir Turanský , cited above.

[126] . See Piotr Kossowski v. Generalstaatsanwaltschaft Hamburg , cited above, § 47, cited in paragraph 43 of the present judgment.

[127] . See my opinion in A and B v. Norway ., cited above, § 15.

[128] . CJEU, 20 March 2018, Luca Menci [GC], Case C-524/15. On this type of “negative cross-fertilisation”, see my article with Hyun-Soo Lim, “The Cross-fertilisation between the Court of Justice of the European Union and the European Court of Human Rights: Reframing the Discussion on Brexit” [2018] European Human Rights Law Review , Issue 6, 575.

[129] . Miraglia , cited above, § 35.

[130] . Ibid, § 34.

[131] . CJEU, 28 September 2006, Gasparini, Case C-467/04.

[132] . See paragraph 98 of the judgment.

[133] . See my separate opinion in A and B v. Norway , cited above.

[134] . See paragraph 97 of the judgment.

[135] . Ibid.

[136] . See paragraph 101 of the judgment.

[137] . The inference can be made that, according to the Grand Chamber, while it requires the enforcement or beginning of enforcement of the penalty, Article 54 of the CISA contradicts Article 4 of Protocol 7.

[138] . See paragraphs 110 and 126 of the judgment.

[139] . See paragraphs 109-110 of the judgment, referring among others to Sergey Zolotukhin , cited above. I find it strange that the minority devotes six long paragraphs (§§ 104 to 109) to the autonomous character of the concept of final decision in Protocol 7 when Sergey Zolotukhin had already addressed that issue. There was therefore no need to discuss case-law delivered prior to the Grand Chamber’s judgment in Sergey Zolotukhin .

[140] . See paragraph 111 of the judgment.

[141] . The minority also refers to this case-law in paragraph 103 of the judgment.

[142] . See paragraph 118 of the judgment.

[143] . See paragraph 116 of the judgment.

[144] . See paragraph 95 of the judgment.

[145] . See paragraph 98 of the judgment.

[146] . See paragraph 133 of the judgment.

[147] . See paragraph 111 of the judgment.

[148] [ GC], nos. 46827/99 and 46951/99 , § 123, ECHR 2005-I.

[149] The requirement that the provisions of the Convention should be interpreted and applied in a manner which renders their safeguards practical and effective, not theoretical and illusory, is, in my view, an indirect and non-nominal formulation of the principle.

[150] For an article on the different “dimensions” of the principle of effectiveness, see Rietiker, Daniel, “The principle of ‘effectiveness’ in the recent jurisprudence of the European Court of Human Rights: its different dimensions and its consistency with public international law – no need for the concept of treaty sui generis ”, Nordic Journal of International Law , 79 (2010), pp. 245 et seq.

[151] The International Law Commission (ILC) which drafted the VCLT took the view that:

“(8) … in so far as the maxim Ut res magis valeat quam pereat reflects a true general rule of interpretation, it is embodied in article 69, paragraph 1 [current Article 31 § 1 of the VCLT], which requires that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in the context of the treaty and in the light of its objects and purposes. When a treaty is open to two interpretations one of which does and the other does not enable the treaty to have appropriate effects, good faith and the objects and purposes of the treaty demand that the former interpretation should be adopted …”

(See Yearbook of the International Law Commission, 1964, II, at p. 201, § (8)).

[152] See Golder v. the United Kingdom, no. 4451/70, § 30, 21 February 1975 (Plenary), where the Court dealing with Article 31 § 1 of the VCLT, said that “the process of interpretation of a treaty is a unity, a single combined operation”. That, however, was first said by the International Law Commission, who drafted the VCLT:

“The Commission, by heading the article ‘General rule of Interpretation’ in the singular and by underlining the connexion between paragraphs 1 and 2 and again between paragraph 3 and the two previous paragraphs, intended to indicate that the application of the means of interpretation in the article would be a single combined operation. All the various elements, as they were present in any given case, would be thrown into the crucible, and their interaction would give the legally relevant interpretation.”

(See Yearbook of the International Law Commission,1966, vol. II, pp. 219-220, § (8)).