Article 50 - Right not to be tried or punished twice in criminal proceedings for the same criminal offence
Key facts of the case:
1) The case originated in an application (no. 54012/10) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national, Mr Aurelian-Erik Mihalache (“the applicant”), on 10 September 2010.
...
3) The applicant alleged that he had been tried and convicted twice for the same offence and that there had been a violation of Article 4 of Protocol No. 7 to the Convention on that account.
9) During the night of 2 to 3 May 2008 the applicant was stopped by the police while driving on the public highway, as a preventive control measure. He underwent a breath test. As the test appeared to be positive, the police officers asked the applicant to accompany them to a hospital to give a biological sample in order to establish his blood alcohol level. The applicant refused.
10) In a decision (rezoluţie) of 17 July 2008 the public prosecutor’s office at the Focşani District Court instituted criminal proceedings against the applicant for refusing to give a biological sample in order to determine his blood alcohol level, an offence provided for and punishable under Article 87 § 5 of Government Emergency Ordinance no. 195/2002 on road traffic (“Ordinance no. 195/2002”).
11) After being questioned by the public prosecutor, the applicant admitted that he had consumed alcohol and had refused to give a biological sample.
13) In an order of 7 August 2008 based on Article 10 (b1) and Article 11 of the Code of Criminal Procedure (“the CCP”) in conjunction with Article 91 of the Criminal Code, as in force at the material time, the public prosecutor’s office discontinued the criminal proceedings against the applicant (scoaterea de sub urmărire penală). In accordance with the aforementioned legal provisions, a prosecution could not be brought unless the act committed was serious enough to constitute a criminal offence (see paragraph 33 below).
14) The order issued by the public prosecutor’s office on 7 August 2008 (see paragraph 13 above) was not challenged by means of a remedy such as an appeal under Article 2491of the CCP (see paragraph 34 below).
15) There is no indication in the case file of the precise date on which the applicant was notified of the order of 7 August 2008. In any event, he took cognisance of its contents and on 15 August 2008 paid the fine and the court fees. He submitted the receipts confirming payment of those sums as evidence in the criminal proceedings.
16) In an order of 7 January 2009, relying on Article 270 § 1 and Article 273 § 2 of the CCP as in force at the material time (see paragraph 34 below), the public prosecutor’s office at the Vrancea County Court, as the higher-ranking prosecutor’s office in relation to the public prosecutor’s office at the Focşani District Court, set aside the order of 7 August 2008 (see paragraph 13 above) of its own motion.
22) In a judgment of 18 November 2009, having assessed the evidence in the file, the Focşani District Court sentenced the applicant to one year’s imprisonment, suspended, on the charges set out in the indictment. Analysing the factual circumstances of the case, it held that a shorter sentence than the statutory minimum was sufficient.
23) In a judgment of 10 February 2010 the Vrancea County Court dismissed an appeal by the applicant against the aforementioned judgment.
24) The applicant lodged an appeal on points of law (recurs) against that judgment. He submitted, inter alia, that the referral of his case to the District Court had been incurably null and void because it was in breach of the ne bis in idem principle. He argued that in its order of 7 August 2008 the public prosecutor’s office had discontinued the criminal proceedings against him and imposed an administrative fine on him, thus terminating the criminal investigation. Subsequently, the public prosecutor’s office at the Vrancea County Court had wrongfully set aside the discontinuance order of its own motion, and no appeal had been lodged against the order of 7 August 2008 under Article 2491 § 3 of the CCP (see paragraph 14 above and paragraph 34 below).
25) In a final judgment of 14 June 2010 the Galați Court of Appeal dismissed the applicant’s appeal on points of law against the judgment delivered on appeal and confirmed that it was well-founded.
Outcome of the case:
For these reasons, the Court, unanimously,
1. Declares the application admissible;
2. Holds that there has been a violation of Article 4 of Protocol No. 7 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 470 (four hundred and seventy euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction.
Paragraphs referring to the EU Charter in the concurring opinion of Judge Pinto de Albuquerque:
20) The question arising in the present case is whether the public prosecutor’s order of 7 August 2008 amounts to a “final” decision rendering Article 4 of Protocol No. 7 applicable. This question is not new and has been raised in the Court of Justice of the European Union (“CJEU”). This court examines the ne bis in idem principle under Article 50 of the EU Charter of Fundamental Rights (“the Charter”) and Article 54 of the Convention implementing the Schengen Agreement (“CISA”), read in the light of Article 50 of the Charter, and taking into account Article 4 of Protocol No. 7 to the Convention.
21) The ne bis in idem principle is considered as one of the general principles of European Union law. Developed by the Court of Justice of the European Communities (CJEC), which became the Court of Justice of the European Union (CJEU), the principle was enshrined in Article 50 of the Charter of Fundamental Rights of the European Union (“the Charter”). However, many of the cases brought before the CJEU concern the CISA. The ne bis in idem principle is set out in Article 54 CISA.
22) An analysis of the case-law on Article 54 CISA and Article 50 of the Charter highlights three criteria which must all be fulfilled if a decision is to be deemed “final”: the decision must “finally bar” the prosecution; it must have been preceded by a “thorough investigation”; and it must be based on an assessment of the merits of the case. Furthermore, in cases of convictions, a fourth criterion is required: the penalty must have been “enforced” or be “in the process of enforcement”, or “can no longer be enforced”.
30) Article 54 CISA provides that once all the criteria have been fulfilled, the ne bis in idem principle is applicable:
“provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party”.
In the Spasic judgment, the CJEU stipulated that this additional condition was compatible with Article 50 of the Charter. In addition, the CJEU decided that the concept of an “enforced” penalty called for an autonomous and uniform interpretation in EU law. It thus stated that:
“... the mere payment of a fine by a person sentenced by the self-same decision of a court of another Member State to a custodial sentence that has not been served is not sufficient to consider that the penalty ‘has been enforced’ or is ‘actually in the process of being enforced’ within the meaning of that provision”.
33. The Court has stated that the difference between EU law and the Convention lies in the fact that the Convention “does not prevent a person from being prosecuted or penalised by the courts of a State Party to the Convention for an offence of which he or she had been acquitted or convicted under a final judgment in another State Party”. Having regard to the intrinsic logic of EU law, the two Courts used different lines of reasoning in the past. Unlike the Strasbourg Court, the CJEU relied, in its reasoning, on the objective of free movement of persons, mutual trust and the principles of legal certainty and legitimate confidence, even though it also mentions, in its more recent judgments – especially those delivered in the framework of Article 50 of the Charter – the protection of the fundamental rights of the person in question. In accordance with the principle of freedom of movement, European citizens must not have to fear prosecution for the same offence after a final decision if they move around within the Schengen area. To attain that purpose, the CJEU sought to maintain a balance between the necessity to guarantee free movement of people and the need to promote the prevention and combat of crime within the area of freedom, security and justice, that is to say the prevention of impunity. Article 54 CISA must therefore not have the effect of “making it more difficult, indeed impossible, actually to penalise in the Member States concerned the unlawful conduct with which the defendant is charged” (Miraglia and Van Straaten judgments, cited above).
34. In conclusion, there was a significant difference between the two Courts as regards the determination of the “final” nature of a decision. This difference stemmed from the specific role played by the CJEU as the guardian not only of the fundamental rights of the Charter but also of the free movement of persons and the concurrent need to prevent impunity. Such enhanced punitive approach of the Luxembourg Court is used in the present judgment by the Strasbourg Court as a source of legitimisation for its A and B-inspired, efficiency-oriented case-law on ne bis in idem, which has abandoned its classical pro persona philosophy in favour of a strict pro auctoritate stance.
