Published: 2 Oct 2019 | By Kristin Lyaskova
Mihalache v Romania [GC]
Forum: ECtHR (GC)
Case No.: 54012/10
Judgment date: 8 July 2019
In 2008, the applicant, Mr Mihalache, was stopped by the police while driving his car, as a preventive control measure. He underwent a breathalyser test, which proved positive. He refused to undergo a blood test. Criminal proceedings instituted against him at the Focşani District Court for refusal to provide a biological sample were subsequently terminated by an order of the public prosecutor’s office discontinuing the proceedings as the applicant’s acts were not deemed sufficiently serious to warrant criminal charges. Mr Mihalache paid an administrative fine of 1,000 Romanian lei (250 Euros).
In 2009, a higher-ranking public prosecutor’s office reopened criminal proceedings on the grounds that an administrative penalty was not justified in light of the danger posed to society. The applicant was sentenced to a suspended term of one year’s imprisonment. His subsequent appeals against conviction and sentence were dismissed. The Court of Appeal held that the ni bis in idem principle (Art. 4 of Protocol No. 7) was immaterial to the case as the prosecutor’s decision to close the proceedings was not a final judgment and the criminal proceedings were resumed and conducted in compliance with domestic law.
The Chamber relinquished jurisdiction to the Grand Chamber.
Applying the “Engel criteria” (Engel and others v. the Netherlands,Nos. 5100/71, 08.06.76), the Grand Chamber found that, in view of the nature of the offence and the penalty imposed, the proceedings were covered by the concept of “penal procedure”. Secondly, the applicant was prosecuted and punished twice for the same offence as the second trial arose from the same facts and accusations as the first. On the issue of duplication, the Court found that although the the applicant was not punished twice for the same facts (as his initial penalty was set aside and he could seek reimbursement), the case involved two successive sets of criminal proceedings, concerning the same facts. Considering whether the reopened case fell within the exception in Art. 4(2) of Protocol 7, the Grand Chamber held that the reopening of the case was not justified by the emergence of new or newly discovered facts and that the Government’s reason of the need to harmonise practice was not covered by the strict conditions of exceptional circumstances under Art. 4(2). The reopening of the proceedings could not therefore be justified and the applicant was tried twice for the same offence in breach of Art. 4 of Protocol No. 7.
The applicant was awarded €5,000 in non-pecuniary damages.
The Mihalache judgment fits within the long line of ECtHR jurisprudence on the principle of ne bis in idem in criminal matters. The criteria relied on by the ECtHR in determining whether there was a final acquittal or conviction was broadly similar to that used by the Court of Justice of the European Union (CJEU), namely determination as to the merits, availability of ordinary remedies, and expiry of the time-limit within which those remedies are to be used (See Piotr Kossowski v Generalstaatsanwaltschaft Hamburg, C-486/14, 29.06.16, paras 29 – 54; Hüseyin Gözütok and Klaus Brügge, joined cases C-187/01 and C-385/01, 11.02.03).
Eleven judges delivered joint or separate concurring opinions in the case, relying on different reasoning. referring to the case of A and B v. Norway,Nos. 24130/11 and 29758/11, 15.11.16. Seven judges, including the President, held that the case should have been decided on the essential criterion that the remedy available to the prosecutor had no time limit and was extraordinary, and the first decision was therefore final. Judge Pinto de Albuquerque labelled the judgment as weak, regretting the missed opportunity for the Grand Chamber to define the concepts of acquittal and conviction in order to determine the scope of the ne bis in idem principle to decisions to discontinue and reopen criminal proceedings, and for sending out a confused message.