CASE OF MIHALACHE v. ROMANIA

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.
2. The applicant, who had been granted legal aid, was represented by Mr M. Bratu, a lawyer practising in Focşani. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs.
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.
4. The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). On 19 June 2013 notice of the complaint under Article 4 of Protocol No. 7 to the Convention was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3. Subsequently, the application was allocated to the Fourth Section of the Court. On 27 March 2018 a Chamber of that Section, composed of Ganna Yudkivska, President, Paulo Pinto de Albuquerque, Egidijus Kūris, Iulia Antoanella Motoc, Georges Ravarani, Marko Bošnjak and Péter Paczolay, judges, and also Marialena Tsirli, Section Registrar, decided to relinquish jurisdiction in favour of the Grand Chamber, none of the parties having objected (Article 30 of the Convention and Rule 72).
5. The composition of the Grand Chamber was determined in accordance with the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24.
6. The applicant and the Government each filed a memorial on the admissibility and merits of the case.
7. A hearing took place in public in the Human Rights Building, Strasbourg, on 3 October 2018 (Rule 71 and Rule 59 § 3).
There appeared before the Court:
(a) for the GovernmentMs C. Brumar, Ministry of Foreign Affairs, Agent, Ms S.D. Popa, Deputy to the Permanent Representative of Romania to the Council of Europe, Adviser;
(b) for the applicantMr M. Bratu, lawyer, Counsel.
The Court heard addresses by Ms Brumar, Ms Popa and Mr Bratu, and their replies to questions from judges.
I. THE CIRCUMSTANCES OF THE CASE
8. The applicant was born in 1975 and lives in Tulnici.
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.
1. Opening of criminal proceedings against the applicant
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.
12. Evidence was also heard from a witness, G.D.
2. Discontinuance of criminal proceedings against the applicant and imposition of an administrative penalty
13. In an order of 7 August 2008 based on Article 10 (b 1 ) 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). The prosecutor stated the following:
“Given that it appears from the criminal case file that in the present case the provisions of Article 10 (b 1 ) of the CCP are applicable, since the act committed does not attain the [degree of] danger to society of a criminal offence, and that the infringement of social values protected by the law was minimal;
Having regard to the honesty of the perpetrator ( făptuitor ), to the fact that he was driving on a day when there was little road traffic, to the short distance driven and to the fact that [he] was being prosecuted for the first time;
The discontinuance of the criminal proceedings ( scoaterea de sub urmărire penală ) against the suspect for the acts set out in Article 87 § 5 of Government Emergency Ordinance no. 195/2002 ... and the imposition of an administrative penalty consisting of a fine of 1,000 Romanian lei (RON) [approximately 250 euros (EUR)], to be enforced pursuant to the provisions of Article 441 1 of the CCP in conjunction with Article 442 of the CCP.
Court fees of RON 20 [approximately EUR 5] ... are payable by the suspect and will be levied in accordance with [the provisions] of Article 443 CCP.
The suspect shall be notified of the decision.”
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 249 1 of 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.
3. Setting aside by the higher-ranking prosecutor ’ s office of the order discontinuing 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.
17. In the order of 7 January 2009 the public prosecutor ’ s office at the Vrancea County Court gave the following reasons:
“Following an examination of the evidence on file, it must be concluded that in view of the degree of general and specific danger to society associated with the acts committed, the type of the social values disregarded by the suspect and the specific circumstances in which he committed the acts, the administrative penalty imposed was not justified.
The suspect justified his firm refusal to give a biological sample in order to determine his blood alcohol level by the fact that before being stopped by the police he had consumed alcoholic beverages. The statement written by the suspect himself indicated that he had acted in this manner [refusing to give the sample] ‘ because of his intoxicated state ’, a circumstance that emphasises the danger posed to society by the acts and by the suspect himself, who nevertheless was not appropriately punished.
The act committed by the suspect entails a high degree of danger to society, which the law itself intended to penalise more severely than other road traffic offences, with the aim of preventing the commission of more serious acts causing physical injury or material damage; because the real reason for refusing to give biological samples is, precisely, the sometimes excessive consumption of alcoholic beverages which may also give rise to criminal liability for other, more serious consequences.
The high upper limits and the nature of the criminal penalty (exclusively imprisonment, excluding any kind of fine) highlight the intention of the law to severely punish anyone committing such reprehensible acts. That being the case, the administrative fine imposed on the suspect Erik Aurelian Mihalache does not fulfil the preventive aim pursued by the law.
It should be borne in mind that the suspect, who was in a manifestly intoxicated state while driving a motor vehicle, was about to go to a discothèque in the village of Lepsa (a place where alcohol is frequently consumed), and the consequences of his acts could have been even worse than he realises.
Having regard to all those circumstances, the imposition of an administrative penalty was unjustified ( nejustificată ). Accordingly, the decision to discontinue proceedings in the case is set aside, and the criminal proceedings [are to be] reopened in order to continue the investigation and prepare the case for trial.
Having regard also to the provisions of Article 273 § 2 and Article 270 § 1 (c) of the CCP,
1. the setting aside of the decision taken in the present case ...;
2. the quashing of the administrative penalty of a 1,000 lei fine imposed on the suspect Erik Aurelian Mihalache for having committed the offence defined in Article 87 § 5 of Ordinance no. 195/2002, as well as the order for him to pay court fees of 20 lei to the State;
3. the reopening of the criminal proceedings against the suspect Erik Aurelian Mihalache for having committed the offence defined in Article 87 § 5 of Ordinance no. 195/2002 and the continuation of the investigation in accordance with this order;
4. the return of the case file to the public prosecutor ’ s office at the Focşani District Court in order to execute [the present order]. ”
18. The case file was sent back to the public prosecutor ’ s office with a view to continuing the criminal investigation in respect of the applicant.
4. The applicant ’ s committal for trial and criminal conviction
19. On 18 February 2009 the applicant was informed of the reopening of the criminal proceedings and questioned about the charges against him. On 19 February 2009 the public prosecutor presented the applicant with the criminal file. The applicant confessed to having committed the acts of which he stood accused, and did not seek to adduce any further evidence.
20. The witness G.D. gave a statement.
21. In an indictment of 24 March 2009 the public prosecutor ’ s office committed the applicant for trial on charges of refusing to give a biological sample for determining his blood alcohol level. The indictment stated that during the night of 2 to 3 May 2008, at around 1 a.m., the applicant had been stopped by the police while driving on the public highway, as a preventive control measure. As the breath test had appeared to be positive the police officers had asked the applicant to accompany them to a hospital to give a biological sample in order to establish his blood alcohol level, but the applicant had refused to do so. The indictment cited in evidence the report of the discovery of the offence, the applicant ’ s confession, G.D. ’ s witness statement, and the document informing the applicant of the accusations against him and his defence rights.
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 249 1 § 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. As regards the applicant ’ s plea alleging non-compliance with the ne bis in idem principle, the Court of Appeal held:
“Pursuant to Article 4 § 1 of Protocol No. 7 to the European Convention on Human Rights, no one may be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.
This principle is also set out in the Romanian Code of Criminal Procedure, Article 10 § 1 (j) of which provides that criminal proceedings cannot be instituted or continued where there has been a decision constituting res judicata.
Therefore, in order for the defendant to be entitled to rely on a breach of the ne bis in idem principle, a previous set of proceedings must have been concluded with a final judgment entailing a conviction or acquittal.
However, the order of 7 August 2008 by which the public prosecutor closed the criminal proceedings cannot be characterised as a judicial decision constituting res judicata, since this is not equivalent to a final judgment ( hotărâre judecătorească ).
The public prosecutor ’ s right to resume criminal proceedings where they have been reopened, pursuant to Article 270 § 1 (c) and Article 273 § 1 of the Code of Criminal Procedure, is not subject to any time-limit or to the absence of a complaint against the discontinuance order, such that the reopening of the criminal proceedings against the defendant Erik Aurelian Mihalache on the basis of the order of 7 January 2009 complied with the relevant legal provisions.
Noting, on the one hand, that the ne bis in idem principle is immaterial to the present case, and on the other, that the criminal proceedings were resumed and conducted in compliance with the [statutory provisions], the court rejects the defendant ’ s arguments to the effect that the referral of the case to the District Court was incurably null and void.”
26. With regard to the applicant ’ s criminal responsibility, the Court of Appeal held that, according to the evidence in the file, the lower courts had correctly determined the facts, their legal classification and the corresponding sentence.
5. Other factual information relevant to the case
(a) Survey on the application of Article 18 1 of the Criminal Code
27. On 17 January 2013 the Prosecutor General of Romania issued a memorandum to all public prosecutors ’ offices across the country asking them to investigate how the provisions of Article 18 1 of the Criminal Code were applied, inter alia, to road traffic offences. The memorandum sought to identify the criteria used by the courts and public prosecutors ’ offices to assess the degree of danger to society associated with a particular act, and referred specifically to the offences set out in Ordinance no. 195/2002. The Prosecutor General also invited the lower-level public prosecutors ’ offices to send him the results of the reviews which they had carried out in 2011 and 2012 and the measures ordered following the reviews. According to the memorandum, the aim of the exercise was to identify the criteria used to justify the application of Article 18 1 of the Criminal Code by the courts and public prosecutors ’ offices.
(b) Steps required to be taken by the applicant to secure reimbursement of sums paid by way of execution of the order of 7 August 2008
28. On 10 March 2013 the Chief Prosecutor of the Focşani public prosecutor ’ s office requested the tax authorities to reimburse the fine paid by the applicant pursuant to the order of 7 August 2008 (see paragraph 15 above).
29. On 3 October 2013 the public prosecutor ’ s office informed the Vrancea Directorate General of Public Finance (“DGFP”) that the amounts paid by the applicant pursuant to the order of 7 August 2008 were to be reimbursed to him. On 4 October 2013 a police officer went to the applicant ’ s home to inform him that he had to submit a request to the Vrancea DGFP in order to secure reimbursement of the amounts paid in respect of the administrative fine and the court fees. The applicant signed the record drawn up on that occasion.
30. According to the documents in the file, the applicant has not asked to be reimbursed the sums paid.
II. RELEVANT DOMESTIC LAW AND PRACTICE
31. Article 132 § 1 of the Constitution, on the status of public prosecutors, reads as follows :
“Public prosecutors shall carry out their activity in accordance with the principles of legality, impartiality, and hierarchical supervision under the authority of the Minister of Justice. ”
B. Government Emergency Ordinance no. 195/2002
32. The relevant provisions of Government Emergency Ordinance no. 195/2002 on road traffic (“Ordinance no. 195/2002”) read as follows:
Chapter IGeneral provisionsArticle 1
“1. Road traffic involving vehicles, pedestrians and other categories of [road] users, the rights, obligations and responsibilities of natural and legal persons, and the powers of certain public authorities, institutions and organisations, are governed by the provisions of the present emergency ordinance.
2. The provisions of this emergency ordinance are designed to ensure a safe traffic flow on public roads, and to protect the lives, physical integrity and health of [road] users or anyone in the vicinity of public roads, [and] to protect the legitimate rights and interests of those persons, of public and private property and of the environment.
5. The provisions of the present emergency ordinance shall be applicable to all [road] users, and to the authorities vested with powers in the spheres of road traffic and safety and environmental protection.”
Chapter VIOffences and penaltiesArticle 84
“A failure to comply with road traffic provisions that entails all the constituent elements of a criminal offence shall give rise to criminal responsibility and be punished in accordance with this emergency ordinance.”
“The refusal ... by a driver of a motor vehicle ... to give a biological sample or to submit to a test of exhaled air in order to establish blood alcohol level or the presence of narcotic products or substances or drugs with similar effects, shall be punished by a sentence of between two and seven years ’ imprisonment.”
33. The provisions of the Criminal Code in force at the material time which are relevant to the present case were worded as follows:
“A criminal offence is an act which poses a danger to society, is committed with culpable intent ( vinovăţie ) and is provided for by criminal law.
Only a criminal offence may constitute grounds for criminal liability .”
“An act posing a danger to society for the purposes of the criminal law shall be understood as any action or inaction which undermines one of the values mentioned in Article 1 and which requires the imposition of a penalty. ”
“1. An act punishable by criminal law shall not constitute a criminal offence if, in view of its minimal interference with one of the values safeguarded by criminal law and the manifestly insignificant nature of its specific content, it does not attain the degree of danger to society associated with a criminal offence.
2. In determining the degree of danger to society, account must be taken of the manner and means by which the act was committed, the aim pursued, the circumstances in which the act was committed, the result which was produced or could have been produced, and the person and conduct of the perpetrator, if known.
3. In the case of such an act, the public prosecutor or the court shall impose one of the administrative penalties provided for in Article 91. ”
“Where a court has recourse to [another form of liability] instead of criminal liability, it shall order one of the following administrative penalties:
(c) a fine of between 10 lei and 1,000 lei.”
“ ‘ Criminal law ’ shall be understood as referring to any criminal provision set forth in laws or decrees.”
D. The Code of Criminal Procedure
34. The relevant provisions of the CCP as in force at the material time were as follows:
“1. Criminal proceedings cannot be instituted or continued if:
(b 1 ) the act did not attain the degree of danger required to be classified as a criminal offence; ...
(g) the offence is statute-barred ...;
(j) [ a prior decision] has become res judicata ...”
“Where one of the cases set out in Article 10 is observed:
1. during the criminal proceedings, the public prosecutor, on an application by the prosecuting authority or proprio motu, shall order: ...
(b) the discontinuance of the proceedings ( scoaterea de sub urmărire ) in favour of the suspect or accused in the cases set out in Article 10 (a) to (e).
“The final decision given by the criminal court shall constitute res judicata before the civil court adjudicating the civil claim, as regards the existence of the facts, the perpetrator and the latter ’ s guilt.”
“The suspect is a person who is the subject of a criminal investigation, until such time as a prosecution is brought.”
“1. A copy of the discontinuance order ... shall be transmitted to the ... suspect or accused ....”
“1. Criminal proceedings shall be discontinued ( scoaterea de sub urmărirea penală ) where one of the cases listed in Article 10 (a) to (e) is observed and where there is a suspect or accused person in the case.
3. In the case mentioned in Article 10 (b 1 ), the public prosecutor shall decide by means of an order.”
3. An order concerning the discontinuance of proceedings on the basis of Article 10 (b 1 ) may be the subject of an appeal ( plîngere ) within twenty days of the date on which the notification provided for in Article 246 has taken place.
4. An order imposing an administrative fine shall be enforced on expiry of the term specified in paragraph 3 above or, where an appeal ( plîngere ) has been lodged and dismissed, after the dismissal of that appeal.”
“Where the public prosecutor finds that the statutory provisions ensuring the discovery of the truth have been complied with, that the criminal proceedings have been completed and that the necessary evidence has been lawfully examined, he or she shall, as appropriate:
(a) the criminal proceedings are closed ( clasează ), discontinued ( scoate de sub urmărire ) or terminated ( încetează ) in accordance with the provisions of Article 11.
Where the public prosecutor discontinues the proceedings on the basis of Article 10 (b 1 ), he or she shall apply Article 18 1 § 3 of the Criminal Code; ... ”
“1. Criminal proceedings shall be resumed in the event that :
(c) the criminal proceedings have been reopened...”
“1. The public prosecutor may order the reopening of criminal proceedings if, following [a decision] discontinuing the proceedings ( scoaterea de sub urmărirea penală ), it is established that the grounds on which the previous decision was based did not actually exist or no longer exist. ...
2. Proceedings shall be reopened following an order by the public prosecutor to that effect.”
“Any person may lodge a complaint in respect of measures and decisions taken during criminal investigation proceedings, if these have harmed his or her legitimate interests ...”
“Complaints against measures or decisions taken by a prosecutor or implemented at the latter ’ s request shall be examined by ... the chief prosecutor in the relevant department ....”
“1. Following the dismissal by the prosecutor of a complaint lodged in accordance with Articles 275 to 278 in respect of the discontinuation of a criminal investigation ... through a decision not to prosecute ( neurmărire penală ) ..., the injured party, or any other person whose legitimate interests have been harmed, may complain within twenty days following notification of the impugned decision, to the judge of the court that would normally have jurisdiction to deal with the case at first instance ...”
“1. Judgments of criminal courts ( hotărîrile instanţelor ) shall be enforceable on the date on which they become final.
2. Non-final judgments shall be enforceable [where explicitly provided for by law].”
“... [T]he penalty of a fine shall be imposed as laid down in Articles 442 and 443. ”
“The judicial body imposing a fine shall ensure that it is enforced.
Judicial fines shall be enforced by sending a copy of the relevant section of the operative part of the judgment imposing the fine to the authority responsible by law for enforcing criminal fines.
Judicial fines shall be enforced by the authority mentioned in the previous paragraph.”
“... Where the obligation to pay court fees advanced by the State is imposed by order, it shall be enforced by the public prosecutor, in accordance with ... the provisions of Article 442 § 2.”
35. The Government produced examples of case-law to the effect that only court judgments constitute res judicata, and not decisions taken by the public prosecutor before the case is referred to a court, such as, for instance, an order discontinuing criminal proceedings (judgment no. 346 of 30 January 2015 of the High Court of Cassation and Justice and a decision given on 14 November 2017 by the Bucharest Court of Appeal).
III. EXPLANATORY REPORT ON PROTOCOL No. 7 TO THE CONVENTION
36. The Explanatory Report on Protocol No. 7 was prepared by the Steering Committee for Human Rights and submitted to the Committee of Ministers of the Council of Europe. It explains from the outset that the text of the report itself “does not constitute an instrument providing an authoritative interpretation of the Protocol, although it might be of such a nature as to facilitate the application of the provisions contained therein”.
37. The parts of the report of relevance to the present case read as follows:
“22. ... According to the definition contained in the explanatory report of the European Convention on the International Validity of Criminal Judgments, a decision is final “if, according to the traditional expression, it has acquired the force of res judicata. This is the case when it is irrevocable, that is to say when no further ordinary remedies are available or when the parties have exhausted such remedies or have permitted the time-limit to expire without availing themselves of them.
27. The words ‘ under the jurisdiction of the same State ’ limit the application of the article to the national level. Several other Council of Europe conventions, including the European Convention on Extradition (1957), the European Convention on the International Validity of Criminal Judgments (1970) and the European Convention on the Transfer of Proceedings in Criminal Matters (1972), govern the application of the principle at international level.
29. The principle established in this provision applies only after the person has been finally acquitted or convicted in accordance with the law and penal procedure of the State concerned. This means that there must have been a final decision as defined above, in paragraph 22.
30. A case may, however, be reopened in accordance with the law of the State concerned if there is evidence of new or newly discovered facts, or if it appears that there has been a fundamental defect in the proceedings, which could affect the outcome of the case either in favour of the person or to his detriment.
31. The term ‘ new or newly discovered facts ’ includes new means of proof relating to previously existing facts. Furthermore, this article does not prevent a reopening of the proceedings in favour of the convicted person and any other changing of the judgment to the benefit of the convicted person.”
IV. RELEVANT INTERNATIONAL-LAW MATERIAL
38. Article 14 § 7 of the United Nations Covenant on Civil and Political Rights is worded as follows:
“No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.”
39. The 1969 Vienna Convention on the Law of Treaties provides:
Article 31 General rule of interpretation
“1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
( a ) Any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;
( b ) Any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
3. There shall be taken into account, together with the context:
( a ) Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
( b ) Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
( c ) Any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.”
Article 32 Supplementary means of interpretation
“Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:
( a ) Leaves the meaning ambiguous or obscure; or
( b ) Leads to a result which is manifestly absurd or unreasonable.”
Article 33 Interpretation of treaties authenticated in two or more languages
“1. When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail.
2. A version of the treaty in a language other than one of those in which the text was authenticated shall be considered an authentic text only if the treaty so provides or the parties so agree.
3. The terms of the treaty are presumed to have the same meaning in each authentic text.
4. Except where a particular text prevails in accordance with paragraph 1, when a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.”
V. EUROPEAN UNION LAW AND CASE-LAW OF THE COURT OF JUSTICE OF THE EUROPEAN UNION
40. Article 50 of the Charter of Fundamental Rights of the European Union as adopted on 12 December 2007 provides:
“No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.”
41. Article 54 of the Convention implementing the Schengen Agreement (CISA) of 14 June 1985 provides as follows:
“A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts 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.”
42. The judgment delivered by the Court of Justice of the European Communities on 11 February 2003 in Hüseyin Gözütok and Klaus Brügge (joined cases C-187/01 and C-385/01, EU:C:2003:87, § 31) states that “(t)he fact that no court is involved in such a procedure and that the decision in which the procedure culminates does not take the form of a judicial decision does not cast doubt on that interpretation”, that is to say does not prevent the application of the ne bis in idem principle.
43. In its judgment in Piotr Kossowski v. Generalstaatsanwaltschaft Hamburg of 29 June 2016, the Court of Justice of the European Union (CJEU; (Grand Chamber), ECLI:EU:C:2016:483) explained the concept of a person whose trial has been “finally disposed of” as follows:
“34. For a person to be regarded as someone whose trial has been ‘ finally disposed of ’ within the meaning of Article 54 of the CISA, in relation to the acts which he is alleged to have committed, it is necessary, in the first place, that further prosecution has been definitively barred (see, to that effect, judgment of 5 June 2014 in M, C ‑ 398/12, EU:C:2014:1057, paragraph 31 and the case-law cited).
35. That first condition must be assessed on the basis of the law of the Contracting State in which the criminal-law decision in question has been taken. A decision which does not, under the law of the Contracting State which instituted criminal proceedings against a person, definitively bar further prosecution at national level cannot, in principle, constitute a procedural obstacle to the opening or continuation of criminal proceedings in respect of the same acts against that person in another Contracting State (see, to that effect, judgments of 22 December 2008 in Turanský, C ‑ 491/07, EU:C:2008:768, paragraph 36, and 5 June 2014 in M, C ‑ 398/12, EU:C:2014:1057, paragraphs 32 and 36).
36. The order for reference indicates that, in the case in the main proceedings, under Polish law the decision of the Kołobrzeg District Public Prosecutor ’ s Office terminating the criminal proceedings precludes any further prosecution in Poland.
38. As regards the fact that ( i ) the decision at issue in the main proceedings was taken by the Kołobrzeg District Public Prosecutor ’ s Office in its capacity as a prosecuting authority and (ii) no penalty was enforced, neither of those factors is decisive for the purpose of ascertaining whether that decision definitively bars prosecution.
39. Article 54 of the CISA is also applicable where an authority responsible for administering criminal justice in the national legal system concerned, such as the Kołobrzeg District Public Prosecutor ’ s Office, issues decisions definitively discontinuing criminal proceedings in a Member State, although such decisions are adopted without the involvement of a court and do not take the form of a judicial decision (see, to that effect, judgment of 11 February 2003 in Gözütok and Brügge, C ‑ 187/01 and C ‑ 385/01, EU:C:2003:87, paragraphs 28 and 38).
40. As regards the absence of a penalty, the Court observes that it is only where a penalty has been imposed that Article 54 of the CISA lays down the condition that the penalty has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the Contracting State of origin.
41. The reference to a penalty cannot therefore be interpreted in such a way that the application of Article 54 of the CISA is – other than in a case in which a penalty has been imposed – subject to an additional condition.
42. In order to determine whether a decision such as that at issue in the main proceedings constitutes a decision finally disposing of the case against a person for the purposes of Article 54 of the CISA, it is necessary, in the second place, to be satisfied that that decision was given after a determination had been made as to the merits of the case (see, to that effect, judgments of 10 March 2005 in Miraglia, C ‑ 469/03, EU:C:2005:156, paragraph 30, and 5 June 2014 in M, C ‑ 398/12, EU:C:2014:1057, paragraph 28).
43. It is necessary, for that purpose, to take into account both the objective of the rules of which Article 54 of the CISA forms part and the context in which it occurs (see, to that effect, judgment of 16 October 2014 in Welmory, C ‑ 605/12, EU:C:2014:2298, paragraph 41 and the case-law cited).
47. Therefore, the interpretation of the final nature, for the purposes of Article 54 of the CISA, of a decision in criminal proceedings in a Member State must be undertaken in the light not only of the need to ensure the free movement of persons but also of the need to promote the prevention and combating of crime within the area of freedom, security and justice.
48. In view of the foregoing considerations, a decision terminating criminal proceedings, such as the decision in issue before the referring court – which was adopted in a situation in which the prosecuting authority, without a more detailed investigation having been undertaken for the purpose of gathering and examining evidence, did not proceed with the prosecution solely because the accused had refused to give a statement and the victim and a hearsay witness were living in Germany, so that it had not been possible to interview them in the course of the investigation and had therefore not been possible to verify statements made by the victim – does not constitute a decision given after a determination has been made as to the merits of the case.
I. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7 TO THE CONVENTION
44. The applicant complained that he had been tried and convicted twice in criminal proceedings for the same offence, in breach of Article 4 § 1 of Protocol No. 7. He also submitted that the reopening of the proceedings against him had not been in conformity with the criteria set out in Article 4 § 2. Article 4 of Protocol No. 7 to the Convention provides :
“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.
2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.
3. No derogation from this Article shall be made under Article 15 of the Convention.”
45. The Government contested that argument.
46. In the Court ’ s view, the application raises complex issues of fact and Convention law, such that it cannot be rejected on the ground of being manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds, and must therefore be declared admissible.
47. The Court reiterates that the guarantee enshrined in Article 4 of Protocol No. 7 occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible under Article 15 of the Convention in time of war or other public emergency.
48. The protection against duplication of criminal proceedings is one of the specific safeguards associated with the general guarantee of a fair hearing in criminal proceedings. Article 4 of Protocol No. 7 to the Convention enshrines a fundamental right guaranteeing that no one is to be tried or punished in criminal proceedings for an offence of which he or she has already been finally convicted or acquitted (see Marguš v. Croatia [GC], no. 4455/10, § 114, ECHR 2014 (extracts); Sergey Zolotukhin v. Russia [GC], no. 14939/03, § 58, ECHR 2009; Nikitin v. Russia, no. 50178/99, § 35, ECHR 2004-VIII; and Kadušić v. Switzerland, no. 43977/13, § 82, 9 January 2018). The repetitive aspect of trial or punishment is central to the legal problem addressed by Article 4 of Protocol No. 7 (see Nikitin, cited above, § 35).
49. The Court observes that the wording of the first paragraph of Article 4 of Protocol No. 7 sets out the three components of the ne bis in idem principle: the two sets of proceedings must be “criminal” in nature (1); they must concern the same facts (2); and there must be duplication of the proceedings (3). It will assess each of those components in turn.
1. Whether the proceedings giving rise to the order of 7 August 2008 were criminal in nature
50. It should be pointed out that by order of 7 August 2008 the public prosecutor ’ s office discontinued the criminal proceedings brought against the applicant for having refused to give a biological sample to establish his blood alcohol level, finding that the acts committed did not constitute an offence under criminal law. However, in the same order, the prosecutor ’ s office imposed on the applicant a penalty designated as “administrative” in the Criminal Code. Thus, in order to determine whether the applicant was “finally acquitted or convicted in accordance with the law and penal procedure of [the] State”, the first issue to be decided is whether those proceedings concerned a “criminal” matter within the meaning of Article 4 of Protocol No. 7.
51. The Government pointed out that Article 87 § 5 of Ordinance no. 194/2002 came under Romanian criminal law in view of the aim pursued by that provision, the classification of the acts as a criminal offence and the penalty imposed. They submitted that the imposition of an administrative penalty on the applicant had not altered the nature of the proceedings, which had remained criminal in nature, only “borrowing” the penalty from the administrative sphere.
52. The applicant submitted that the fine imposed by the order of the public prosecutor ’ s office of 7 August 2008 had been “criminal” within the meaning of Article 4 of Protocol No. 7.
53. The Court reiterates that the legal characterisation of the procedure under national law cannot be the sole criterion of relevance for the applicability of the ne bis in idem principle under Article 4 § 1 of Protocol No. 7.
54. The Court reiterates that the concept of a “criminal charge” within the meaning of Article 6 § 1 is an autonomous one. Its established case-law sets out three criteria, commonly known as the “ Engel criteria”, to be considered in determining whether or not there was a “criminal charge” ( see Engel and Others v. the Netherlands, 8 June 1976, § 82, Series A no. 22; A and B v. Norway [GC], nos. 24130/11 and 29758/11, § 107, 15 November 2016; and Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 122, 6 November 2018). The first criterion is the legal classification of the offence under national law, the second is the very nature of the offence, and the third is the degree of severity of the penalty that the person concerned risks incurring. The second and third criteria are alternative and not necessarily cumulative. This does not preclude a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge (see Sergey Zolotukhin, cited above, § 53, and A and B v. Norway, cited above, § 105; see also Escoubet v. Belgium [GC], no. 26780/95, § 32, ECHR 1999 ‑ VII).
55. The Court will examine below whether, in accordance with the aforementioned Engel criteria, the imposition of an administrative fine on the applicant for the offence of which he was accused is covered by the concept of “penal procedure”.
( i ) Legal characterisation of the offence under national law
56. The Court notes that the offence for which the applicant was prosecuted, that is, his refusal to give a biological sample to establish his blood alcohol level, was punishable under Article 87 § 5 of Ordinance no. 195/2002, as set out in the section on “offences and penalties”, and that they could give rise to a prison sentence. Both parties accepted that these legal provisions formed part of Romanian criminal law.
57. The Court further notes the application in the present case of Article 18 1 of the Criminal Code, providing that an act falling under the criminal law did not constitute a criminal offence if it did not attain the requisite level of seriousness, on account of the minimal interference with one of the values safeguarded by criminal law, and its specific content (see paragraph 33 above). In such circumstances, the public prosecutor could decide to discontinue the prosecution and, instead of imposing the criminal penalty provided for in the definition of the offence of which the person had been accused, impose another penalty that was likewise provided for in the Criminal Code but was designated therein as “administrative”.
58. In the instant case, by order of 7 August 2008, the public prosecutor ’ s office discontinued the proceedings against the applicant, noting that although his acts fell under the criminal law, they did not amount to a criminal offence, and it imposed an administrative penalty on him. Be that as it may, the characterisation under domestic law is merely a starting-point, and the indications so afforded have only a formal and relative value (see, among many other authorities, Engel and Others, cited above, § 82, and Sergey Zolotukhin, cited above, § 53). The Court will therefore undertake a more detailed analysis of the actual nature of the domestic provision forming the legal basis of the penalty imposed on the applicant and its severity.
(ii) Actual nature of the applicable legal provision
59. By its very nature, the inclusion in Ordinance no. 195/2002 of the offence of refusing to give a biological sample for determining blood alcohol level pursued aims, as specified in Article 1 § 2 of the Ordinance, such as protecting the life, physical integrity, health and legitimate rights and interests of road users, and protecting public and private property and the environment – values falling within the sphere of protection of the criminal law. The provisions of the Ordinance were applicable, in accordance with Article 1 § 5, to all road users rather than to a group possessing a special status. The penalty laid down for commission of the offence defined in Article 87 § 5 of Ordinance no. 195/2002 was severe – between two and seven years ’ imprisonment – and was aimed at punishing and deterring behaviours liable to undermine the social values safeguarded by law (see paragraph 32 above).
60. The Court also considers it important to note that although the acts of which the applicant was accused were not deemed to constitute a criminal offence in the order of 7 August 2008, they nevertheless fell within the scope of a provision of criminal law. The fact that the criminal acts of which the applicant was accused were initially regarded as manifestly insignificant on account of their minimal interference with one of the values safeguarded by criminal law and their specific content does not in itself preclude their classification as “criminal” within the autonomous Convention meaning of the term, as there is nothing in the Convention to suggest that the criminal nature of an offence, within the meaning of the “ Engel criteria”, necessarily requires a certain degree of seriousness (see Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98, § 104, ECHR 2003-X). Moreover, in the second set of proceedings, the same acts were found to constitute a criminal offence. The Court accepts that the legal provision on the basis of which the prosecutor ’ s office prosecuted and punished the applicant by means of the order of 7 August 2008 was criminal in nature.
(iii) Degree of severity of the penalty
61. As to the degree of severity of the penalty, it is determined by reference to the maximum penalty for which the relevant law provides. The actual penalty imposed is relevant to the determination but it cannot diminish the importance of what was initially at stake (see Sergey Zolotukhin, cited above, § 56; Grecu v. Romania, no. 75101/01, § 54, 30 November 2006; and Tomasović v. Croatia, no. 53785/09, § 23, 18 October 2011).
62. In the present case, Article 87 § 5 of Ordinance no. 195/2002 provided that acts constituting the offence of refusing to give a biological sample for determining blood alcohol level were punishable by a sentence of two to seven years ’ imprisonment. Even though the public prosecutor ’ s office did not consider that the acts in issue constituted an offence for the purposes of criminal law, it was required by law to impose a penalty where the legal basis for discontinuing the proceedings was Article 18 1 of the Criminal Code (see paragraph 33 above). The applicant was fined 1,000 Romanian lei (RON – approximately 250 euros (EUR) at the time) for the acts of which he was accused. That sum corresponded to the maximum fine that could be imposed under Article 91 of the Criminal Code. Although the Criminal Code designates this penalty as “administrative”, the purpose of the fine was not to repair the damage caused by the applicant but to punish him and deter him from committing further criminal acts (compare Ioan Pop v. Romania ( dec. ), no. 40301/04, § 25, 28 June 2011, where the Court found that an administrative fine of approximately EUR 50 imposed on the applicant under Ordinance no. 195/2002 for failing to stop and give way to an official vehicle was “criminal” for the purposes of Article 6 of the Convention; and Sancaklı v. Turkey, no. 1385/07, § 30, 15 May 2018, where the Court found that a fine classified as administrative in Turkish law, amounting to approximately EUR 62, was “criminal” for the purposes of Article 6). Accordingly, although domestic law classifies the fine imposed on the applicant as “administrative”, it has a punitive and deterrent purpose and is therefore akin to a criminal penalty.
(iv) Conclusion concerning the nature of the proceedings leading to the order of 7 August 2008
63. Having regard to the foregoing, the Court concludes that the nature of the offence for which the applicant was prosecuted and the penalty imposed on him link the proceedings leading to the order of 7 August 2008 to the concept of “penal procedure” for the purposes of Article 4 of Protocol No. 7.
64. Moreover, it is beyond doubt that the applicant ’ s suspended sentence of one year ’ s imprisonment, imposed by the Galați Court of Appeal ’ s judgment of 14 June 2010, was a criminal penalty (see paragraph 25 above). Since the proceedings described by the applicant were criminal in nature, the first criterion for the applicability of Article 4 of Protocol No. 7 is fulfilled.
2. Whether the applicant was prosecuted twice for the same offence ( idem )
65. The Government did not deny that the offence of which the applicant had been convicted by the Focșani District Court in its judgment of 18 November 2009 entailed the same facts on the basis of which he had been fined in the order of 7 August 2008.
66. The applicant submitted that the offence of which he had been convicted by the Focşani District Court in its judgment of 18 November 2009 entailed the same facts on the basis of which he had been fined by the public prosecutor ’ s office in its order of 7 August 2008.
67. In Sergey Zolotukhin (cited above, § 82) the Court found that Article 4 of Protocol No. 7 had to be understood as prohibiting prosecution or trial for a second “offence” in so far as it arose from identical facts or facts which were substantially the same. This factual approach has been explicitly reiterated by the Court in subsequent cases (see, for example, Marguš, cited above, § 114; A and B v. Norway, cited above, § 108; and Ramda v. France, no. 78477/11, § 81, 19 December 2017).
68. In the present case, the Court notes that, on the basis of the order of 7 August 2008 and the final judgment delivered by the Galați Court of Appeal on 14 June 2010, the applicant was found guilty of having refused to undergo a blood alcohol test during the night of 2 to 3 May 2008, following a preventive control carried out by the traffic police, and was penalised for that offence. That being so, in so far as the two above-mentioned decisions concerned the same facts and the same accusations, the applicant was indeed tried and punished twice for the same offence.
3. Whether there was a duplication of proceedings ( bis )
69. The Government submitted that the present case concerned a “single” set of proceedings which had been finally determined by the judgment delivered by the Galați Court of Appeal on 14 June 2010, and not two separate sets of proceedings combining to form a coherent whole.
70. In the Government ’ s submission, the prosecutor ’ s order of 7 August 2008 had amounted to a discontinuance of the proceedings and had not been final. Although the order could have been challenged within twenty days of the date on which the applicant had been notified of it, that fact was insufficient to establish whether the order in question had become final. Referring to the decisions given by the Court in the cases of Horciag v. Romania (( dec. ), no. 70982/01, 15 March 2005), and Sundqvist v. Finland (( dec. ), no. 75602/01, 22 November 2005), the Government contended that regard should also be had to the option available under domestic law whereby the higher-ranking prosecutor could order the reopening of the criminal proceedings, an option they regarded as an ordinary remedy within the meaning of the Court ’ s relevant case-law.
71. On that subject, the Government submitted first of all that, according to information from certain domestic courts, decisions to discontinue or terminate criminal proceedings were very seldom set aside by either prosecutors or judges. They emphasised that the number of cases in which the prosecutor set aside a decision proprio motu was comparable to the number in which the judge did so acting on a complaint by the interested party against the prosecutor ’ s decision. The similar frequency of the use of both these options indicated that the possibility for the higher-ranking prosecutor to reopen proceedings had to be recognised as having the same legal status as an appeal lodged by the injured party against the prosecutor ’ s decision, namely that of an ordinary remedy. Referring to statistics provided by various domestic public prosecutors ’ offices, the Government explained that the proportion of cases where decisions to discontinue or terminate criminal proceedings were set aside by the public prosecutor or judge was very low, approximately 1%. In the case of intervention by the public prosecutor leading to this outcome, the percentage was even lower, less than 0.5%.
72. In the Government ’ s submission, the limited number of cases where the public prosecutor intervened proprio motu could be explained, firstly, by the need to avoid undermining public trust in the quality of the work performed by public prosecutors and, secondly, by the requirement to strike a balance between the aim pursued by setting aside the initial decision and the stability of the legal situations created as a result of the decision. In the instant case the higher-ranking prosecutor had intervened promptly, about five months after the order of 7 August 2008.
73. Relying on the Court ’ s case-law (citing Smirnova and Smirnova v. Russia ( dec. ), nos. 46133/99 and 48183/99, 3 October 2002, and Harutyunyan v. Armenia ( dec. ), no. 34334/04, 7 December 2006), the Government submitted that only decisions determining the merits of a case could constitute res judicata, and that the discontinuance of criminal proceedings by a public prosecutor did not amount to either a conviction or an acquittal. Under domestic law, only court decisions, and not prosecutors ’ orders, were deemed to constitute res judicata (see paragraphs 34 and 35 above).
74. The Government also explained that the enforcement – whether voluntary or not – of a penalty imposed by a prosecutor ’ s order had no bearing on the nature of that order: domestic law did not prescribe that the enforcement of such a penalty precluded the reopening of criminal proceedings. By setting aside an order of that kind, the higher-ranking prosecutor also set aside the penalty.
75. The Government submitted that even from the perspective of the case-law of the CJEU, the order of 7 August 2008 did not constitute a “final” decision. Referring to judgments delivered by the CJEU (for example, those delivered on 29 June 2016 and 22 December 2008 respectively in the cases of Kossowski v. Generalstaatwaltschaft Hamburg (C-486/14, EU:C:2016:483), and Vladimir Turanský (C-491/07, EU:C:2008:768)), they explained that for a person to be regarded as someone whose trial had been “finally disposed of”, it was necessary, in the first place, that further prosecution had been “definitively barred”, a question which had to be assessed on the basis of the law of the Contracting State in which the criminal-law decision in issue had been taken. Next, referring to the judgments delivered by the CJEU in Filomeno Mario Miraglia (10 March 2005, C-469/03, EU:C:2005:156); M. (5 June 2014, C-398/12, EU:C:2014:1057); and Kossowski (cited above), the Government noted that the CJEU had ruled that even where, under domestic law, further prosecution had been definitively barred by a decision, that decision only qualified as “final” if it was given after a determination had been made as to the merits of the case. In the present case, the possibility for the public prosecutor ’ s office to issue an order under Article 10 (b 1 ) of the CCP without determining all the aspects of the criminal proceedings (see paragraph 33 above) argued in favour of regarding the prosecutor ’ s order of 7 August 2008 as “not final”. Furthermore, Article 273 § 1 of the CCP had not restricted the reopening of proceedings to exceptional circumstances or made it subject to the discovery of new evidence: reopening could be ordered wherever the higher-ranking prosecutor found that the proceedings had been discontinued on non-existent factual or legal grounds.
76. Finally, the Government submitted that even supposing that the public prosecutor ’ s office ’ s order of 7 August 2008 constituted a final decision, the order given by the higher-ranking prosecutor ’ s office on 7 January 2009 had led not to the resumption of the prosecution, but to the reopening of the case for the purposes of Article 4 § 2 of Protocol No. 7. The reopening had been justified by a fundamental defect in the order previously issued. With reference to the Prosecutor General ’ s memorandum of 17 January 2013 (see paragraph 27 above), they explained that the higher-ranking prosecutor ’ s oversight of decisions taken by public prosecutors under his or her authority pursued the aim, inter alia, of standardising the practice of public prosecutors ’ offices, particularly as regards the assessment of the degree of danger to society posed by a road traffic offence. Even though the memorandum in question had been issued after the facts of the present case, it proved that the standardisation of judicial practice had been a constant concern of the judicial authorities. Furthermore, for offences of this kind there was generally no other party with an interest in challenging the prosecutor ’ s decision to discontinue the proceedings. Had the higher-ranking prosecutor not intervened, a decision based on an erroneous assessment could not have been amended.
77. The applicant submitted that the order of 7 August 2008 by the public prosecutor ’ s office had amounted to a final decision for the purposes of Article 4 of Protocol No. 7. He first of all observed that in his case, unlike in A and B v. Norway (cited above), there had not been two complementary sets of proceedings pursuing different social purposes. In support of that contention he pointed out that in both sets of proceedings he had been prosecuted for the same offence punishable under the same legislation, and that the evidence produced had been the same. The second set of proceedings had unforeseeably overturned the first set after a considerable period of time, thus demonstrating that there had not been two complementary sets of proceedings.
78. The applicant further submitted that the prosecutor ’ s order of 7 August 2008 had become final in so far as it had not been challenged within the time-limit set out in Articles 249 1, 278 and 278 1 of the CCP for lodging an appeal, and the fine had consequently been paid. Under domestic law, both the courts and the public prosecutors ’ offices had had jurisdiction to apply Articles 18 1 and 91 of the Criminal Code as in force at the material time. In order to apply those provisions, and above all to impose one of the penalties laid down in Article 91 of the Criminal Code, the authority with jurisdiction had been required to carry out a thorough investigation of the facts of the case and to assess the behaviour of the person concerned. Referring to the judgment delivered by the CJEU in Kossowski v. Generalstaatwaltschaft Hamburg (cited above), the applicant stated that in the present case, in issuing the order of 7 August 2008, the public prosecutor ’ s office had conducted an in-depth investigation: it had interviewed the suspect and a witness and had made its own assessment of the circumstances surrounding the commission of the acts, before deciding on the most appropriate penalty to be imposed in this case. The detailed nature of the investigation meant that the order of 7 August 2008 should be characterised as “final”.
79. The applicant added that pursuant to Article 249 1 of the CCP, the fine imposed had been enforceable on expiry of the twenty-day time-limit within which he could, under the CCP, have challenged the order in question. The enforceability – as required by law – of the order on expiry of the time-limit for appeal had rendered the order final, such that after its enforcement the proceedings could no longer have been reopened by the public prosecutor ’ s office on the basis of Article 273 of the CCP.
80. Finally, in the applicant ’ s submission, the fact that Article 273 of the CCP as in force at the material time had allowed the higher-ranking public prosecutor ’ s office to reopen criminal proceedings had not constituted an extraordinary remedy for the purposes of the case-law of the Court, but rather a reopening of the case, to be assessed under Article 4 § 2 of Protocol No. 7. The higher-ranking prosecutor ’ s decision of 7 January 2009 had been contrary both to domestic law and to Article 4 § 2 of Protocol No. 7. The applicant argued, in that connection, that the reopening had been based on a different assessment of the circumstances surrounding the commission of the offence and of the appropriateness of the penalty imposed, and not on the finding that the grounds forming the basis of the previous decision had never actually existed or no longer existed – as required by Article 273 of the CCP as in force at the material time – or on the emergence of new facts or a fundamental defect in the previous proceedings, as required by Article 4 § 2 of Protocol No. 7.
81. The Court reiterates that the aim of Article 4 of Protocol No. 7 is to prohibit the repetition of criminal proceedings that have been concluded by a final decision (see Sergey Zolotukhin, cited above, § 107, with further references).
( i ) Preliminary observations on whether the two sets of proceedings were complementary
82. The Court considers it useful first of all to consider whether the facts of the present case point to “dual” sets of proceedings with a sufficiently close connection, given that the issue as to whether a decision is “final” or not is devoid of relevance when there is no real duplication of proceedings but rather a combination of proceedings considered to constitute an integrated whole (see A and B v. Norway, cited above, § 142).
83. It observes that in the case of A and B v. Norway (cited above, §§ 126 and 130-34) it reiterated and developed the principle of a “sufficiently close connection in substance and in time” between proceedings: where this connection allows the two sets of proceedings to be treated as forming part of an integrated scheme of sanctions under the domestic law in question, there is no duplication of proceedings but rather a combination of proceedings compatible with Article 4 of Protocol No. 7.
84. In the present case, the applicant was prosecuted in “both” sets of proceedings for a single offence punishable by a single legal provision, namely Article 87 § 5 of Ordinance no. 195/2002. The proceedings and the two penalties imposed on the applicant pursued the same general purpose of deterring conduct posing a risk to road safety. The “first” set of proceedings as a whole and the initial part of the “second” set of proceedings were conducted by the same authority, that is to say the public prosecutor ’ s office at the Focşani District Court, and in “both” sets of proceedings the same evidence was produced. In the present case the two penalties imposed on the applicant were not combined: either of the two penalties should have been imposed depending on whether the investigating authorities characterised the facts as constituting a criminal offence. The “two” sets of proceedings took place one after the other and were not conducted simultaneously at any time.
85. Having regard to those factors, the Court agrees with the parties and finds that the two sets of proceedings were not combined in an integrated manner such as to form a coherent whole, connecting dual proceedings “sufficiently closely in substance and in time” to be compatible with the “ bis ” criterion under Article 4 of Protocol No. 7 (compare A and B v. Norway, cited above, §§ 112-34, and Jóhannesson and Others v. Iceland, no. 22007/11, §§ 48-49, 18 May 2017).
86. In order to determine further whether, in the instant case, there was duplication of proceedings (“ bis ”) for the purposes of Article 4 of Protocol No. 7, the Court will examine whether the prosecutor ’ s order of 7 August 2008 constituted a “final” decision “acquitting or convicting” the applicant. In the affirmative, the Court must establish whether the decision given by the higher-ranking prosecutor on 7 January 2009 was covered by the exception set out in Article 4 § 2 of Protocol No. 7 and therefore amounted to a reopening of the case compatible with Article 4 of Protocol No. 7.
(ii) Whether the order of 7 August 2008 constituted a final acquittal or conviction
87. The Court notes that the parties disagreed on this point: the Government submitted that the order of 7 August 2008 had merely entailed the discontinuance of the proceedings by the public prosecutor ’ s office, whereas the applicant contended that it had entailed his conviction. Likewise, the applicant argued that the order of 7 August 2008 was a final decision, but the Government disputed this.
88. The Court notes that Article 4 of Protocol No. 7 states that the ne bis in idem principle is intended to protect persons who have already been “finally acquitted or convicted”. The explanatory report on Protocol No. 7 states, as regards Article 4, that “[t]he principle established in this provision applies only after the person has been finally acquitted or convicted in accordance with the law and penal procedure of the State concerned” (see paragraph 29 of the explanatory report, cited in paragraph 37 above). For a person to qualify for protection under this Article, a final decision is therefore not sufficient; the final decision must also involve the person ’ s acquittal or conviction.
89. In the present case, the Court must first of all determine whether the order of 7 August 2008 did indeed constitute an acquittal or conviction. If so, it must ascertain whether the order was a “final” decision for the purposes of Article 4 of Protocol No. 7. In order to answer those questions, it must conduct a broader analysis of Article 4 of Protocol No. 7 in the light of its relevant case-law.
90. To that end, it reiterates that as an international treaty, the Convention must be interpreted in the light of the rules of interpretation provided for in Articles 31 to 33 of the Vienna Convention of 23 May 1969 on the Law of Treaties (see Golder v. the United Kingdom, 21 February 1975, § 29, Series A no. 18, and Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, § 118, 8 November 2016). Thus, in accordance with the Vienna Convention, the Court is required to ascertain the ordinary meaning to be given to the words in their context and in the light of the object and purpose of the provision from which they are drawn (see Johnston and Others v. Ireland, 18 December 1986, § 51, Series A no. 112, and Article 31 § 1 of the Vienna Convention, cited in paragraph 39 above ).
91. Furthermore, in order to interpret the provisions of the Convention and the Protocols thereto in the light of their object and purpose, the Court has developed additional means of interpretation through its case-law, namely the principles of autonomous interpretation and evolutive interpretation, and that of the margin of appreciation. These principles require the provisions of the Convention and the Protocols thereto to be interpreted and applied in a manner which renders their safeguards practical and effective, not theoretical and illusory (see Soering v. the United Kingdom, 7 July 1989, § 87, Series A no. 161).
92. Regard must also be had to the fact that the context of the provision in question is a treaty for the effective protection of individual human rights and that the Convention must be read as a whole, and interpreted in such a way as to promote internal consistency and harmony between its various provisions (see Stec and Others v. the United Kingdom ( dec. ) [GC], nos. 65731/01 and 65900/01, §§ 47-48, ECHR 2005 ‑ X, and Magyar Helsinki Bizottság, cited above, § 120).
( α) Concerning the scope of the concepts of “acquittal” and “conviction”
93. Before detailing the content of those concepts, the Court deems it useful to consider whether judicial intervention in the proceedings is necessary for a decision to be regarded as an “acquittal” or a “conviction”.
– Whether judicial intervention is necessary
94. From a study of the two authentic versions – English and French – of Article 4 of Protocol No. 7, the Court notes a difference in the wording of the two texts: the French version of Article 4 of Protocol No. 7 provides that the person concerned must have been “ acquitté ou condamné par un jugement ”, whereas the English version of the same provision states that the person must have been “finally acquitted or convicted”. The French version thus indicates that the acquittal or conviction must stem from a “ jugement ”, whereas the English version does not specify what form the acquittal or conviction should take. Thus confronted with versions of a law-making treaty which are equally authentic but not exactly the same, the Court must interpret them in a way that reconciles them as far as possible and is most appropriate in order to realise the aim and achieve the object of the treaty (see The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 48, Series A no. 30, and Article 33 § 4 of the Vienna Convention on the Law of Treaties).
95. In view of the crucial role played by Article 4 of Protocol No. 7 in the Convention system and the aim of the right which it secures, the use of the word “ jugement ” in the French version of this Article cannot justify a restrictive approach to the concept of a person who has been “acquitted or convicted”. What matters in any given case is that the decision in question has been given by an authority participating in the administration of justice in the national legal system concerned, and that that authority is competent under domestic law to establish and, as appropriate, punish the unlawful behaviour of which the person has been accused. The fact that the decision does not take the form of a judgment cannot call into question the person ’ s acquittal or conviction, since such a procedural and formal aspect cannot have a bearing on the effects of the decision. Indeed, the English version of Article 4 of Protocol No. 7 supports this broad interpretation of the concept. Moreover, the Court has consistently adopted a similar approach in determining the effects of a legal situation, for example in ascertaining whether proceedings defined as administrative under domestic law produced effects requiring them to be classified as “criminal” within the autonomous Convention meaning of the term (see, among many other authorities, A and B v. Norway, cited above, §§ 139 and 148, and Sergey Zolotukhin, cited above, §§ 54-57; see also Tsonyo Tsonev v. Bulgaria (no. 2), no. 2376/03, § 54, 14 January 2010, where the Court proceeded from the finding that the mayor ’ s decision to impose an administrative fine on the applicant, which had not been challenged in the courts and was enforceable, had constituted a final decision for the purposes of Article 4 of Protocol No. 7).
Accordingly, the Court considers that judicial intervention is unnecessary for the existence of a decision.
– The content of the concepts of “acquittal” and “conviction”
96. To date, the Court has never defined in its case-law the scope of the expression “acquitted or convicted” or set out any general criteria in that regard. Nonetheless, it has held on many occasions that the discontinuance of criminal proceedings by a public prosecutor does not amount to either a conviction or an acquittal, and that Article 4 of Protocol No. 7 is therefore not applicable in such a situation (see, to that effect, Marguš, cited above, § 120, and Smirnova and Smirnova and Harutyunyan, both cited above). In Horciag (cited above) the Court stated that “a decision confirming provisional psychiatric detention cannot be treated as an acquittal for the purposes of Article 4 of Protocol No. 7, but concerns a preventive measure not entailing any examination or finding as to the applicant ’ s guilt (see, mutatis mutandis, Escoubet v. Belgium (cited above), and Mulot v. France ( dec. ), no. 37211/97, 14 December 1999)”.
97. In order to determine whether a particular decision constitutes an “acquittal” or a “conviction”, the Court has therefore considered the actual content of the decision in issue and assessed its effects on the applicant ’ s situation. Referring to the text of Article 4 of Protocol No. 7, it considers that the deliberate choice of the words “acquitted or convicted” implies that the accused ’ s “criminal” responsibility has been established following an assessment of the circumstances of the case, in other words that there has been a determination as to the merits of the case. In order for such an assessment to take place, it is vital that the authority giving the decision is vested by domestic law with decision-making power enabling it to examine the merits of a case. The authority must then study or evaluate the evidence in the case file and assess the applicant ’ s involvement in one or all of the events prompting the intervention of the investigative bodies, for the purposes of determining whether “criminal” responsibility has been established (see, mutatis mutandis, Allen v. the United Kingdom [GC], no. 25424/09, § 127, ECHR 2013, a case concerning the scope of the presumption of innocence under Article 6 § 2 of the Convention, in which the content, and not the form, of the decision, was the decisive factor for the Court).
98. Thus, the finding that there has been an assessment of the circumstances of the case and of the accused ’ s guilt or innocence may be supported by the progress of the proceedings in a given case. Where a criminal investigation has been initiated after an accusation has been brought against the person in question, the victim has been interviewed, the evidence has been gathered and examined by the competent authority, and a reasoned decision has been given on the basis of that evidence, such factors are likely to lead to a finding that there has been a determination as to the merits of the case. Where a penalty has been ordered by the competent authority as a result of the behaviour attributed to the person concerned, it can reasonably be considered that the competent authority had conducted a prior assessment of the circumstances of the case and whether or not the behaviour of the person concerned was lawful.
– Considerations specific to the present case
99. As regards the circumstances of the present case, the Court observes first of all that in its order of 7 August 2008 the public prosecutor ’ s office at the Focşani District Court discontinued the criminal proceedings against the applicant, while also imposing an administrative penalty on him for the acts he had committed. This was therefore not a simple discontinuance order, in which case Article 4 of Protocol No. 7 to the Convention would no doubt have been inapplicable (see, to that effect, Marguš, cited above, § 120, and Smirnova and Smirnova and Harutyunyan, both cited above).
100. In the instant case, under domestic law the public prosecutor ’ s office was called upon to participate in the administration of criminal justice. The prosecutor had jurisdiction to investigate the applicant ’ s alleged actions, questioning a witness and the suspect to that end. Subsequently, he applied the relevant substantive rules laid down in domestic law; he had to assess whether the requirements were fulfilled for characterising the applicant ’ s alleged acts as a criminal offence. On the basis of the evidence produced, the prosecutor carried out his own assessment of all the circumstances of the case, relating both to the applicant individually and to the specific factual situation. After carrying out that assessment, again in accordance with the powers conferred on him under domestic law, the prosecutor decided to discontinue the prosecution, while imposing a penalty on the applicant that had a punitive and deterrent purpose (see paragraphs 11 to 15 above). The penalty imposed became enforceable on the expiry of the time-limit for an appeal by the applicant under domestic law.
101. Having regard to the investigation conducted by the prosecutor and to the powers conferred on him under domestic law to determine the case before him, the Court considers that in the present case the prosecutor ’ s assessment concerned both the circumstances and the establishment of the applicant ’ s “criminal” responsibility. Having regard also to the fact that a deterrent and punitive penalty was imposed on the applicant, the order of 7 August 2008 entailed his “conviction”, within the substantive meaning of the term. In view of the effects of the conviction on the applicant ’ s situation, the fact that no court had intervened in his case cannot alter that conclusion.
( β) Concerning the “final” nature of the prosecutor ’ s order of 7 August 2008 entailing the applicant ’ s “criminal conviction”
– The Court ’ s approach in comparable previous cases and its elaboration for the purposes of the present case
102. The Court observes that according to the text of Article 4 of Protocol No. 7, to be afforded the benefit of the ne bis in idem principle the person concerned must have “already been finally acquitted or convicted in accordance with the law and penal procedure of that State”. This Article therefore includes an explicit reference to the law of the State which gave the decision in question.
103. The Court further notes that its case-law indicates (see, for example, Nikitin, cited above, § 37; Storbråten, ( dec. ), no. 12277/04, 1 February 2007; Horciag and Sundqvist, all cited above; and Sergey Zolotukhin, cited above, § 107) that in determining what was the “final” decision in cases before it, it has invariably referred to the criterion set forth in the explanatory report on Protocol No. 7, finding that a decision was “final”, whatever its characterisation under domestic law, after the exhaustion of “ordinary” remedies or the expiry of the time-limit laid down in domestic law for their use. Remedies which the Court has designated as “extraordinary” are not taken into account in determining what was the “final” decision for the purposes of Article 4 of Protocol No. 7 (see Nikitin, cited above, §§ 37-39; Sergey Zolotukhin, cited above, § 108; Sismanidis and Sitaridis v. Greece, nos. 66602/09 and 71879/12, § 42, 9 June 2016; and Šimkus v. Lithuania, no. 41788/11, § 47, 13 June 2017 ). In other words, in performing its scrutiny, the Court has not automatically taken into account the classification used in domestic law in determining whether or not a decision was “final”: it has conducted its own assessment of the “final” nature of a decision with reference to the “ordinary” remedies available to the parties.
104. Nevertheless, a reading of certain decisions given by the Court prior to the Sergey Zolotukhin and Marguš judgments (cited above), and more especially the Horciag, Sundqvist and Storbråten decisions (all cited above), might give the impression that the question of the final nature of a decision is exclusively governed by the domestic law of the State concerned (for an assessment of the same Romanian legal framework from the standpoint of Article 6 § 1 of the Convention, concerning length of proceedings, see also Stoianova and Nedelcu v. Romania, nos. 77517/01 and 77722/01, ECHR 2005 ‑ VIII). However, the references to domestic law in those decisions should be interpreted in a more qualified manner and be viewed in their context.
105. In Storbråten (cited above) the Court pointed out that regard should be had to domestic law in order to ascertain the “time” when a decision became final. The Court itself determined, in the light of the criterion set out in the explanatory report, what had been the “final” domestic decision, taking into account the procedures existing in domestic law. In that case, domestic law and the application of the criteria set out in the explanatory report led to the same outcome: the decision delivered by the Probate and Bankruptcy Court had become final in the absence of an appeal by the applicant, and thus after the expiry of the time-limit laid down in domestic law for making use of an “ordinary” remedy.
106. The cases of Horciag, Sundqvist and Stoianova and Nedelcu (all cited above) differ from the present case. In Horciag the applicant had been the subject of a decision to discontinue proceedings accompanied by a detention order – a preventive measure – and not a penalty. The cases of Sundqvist and Stoianova and Nedelcu centred on simple discontinuance orders, rather than decisions entailing “acquittal” or “conviction”. As previously mentioned (see paragraph 96 above), the discontinuance of criminal proceedings by a public prosecutor does not amount to a conviction or an acquittal.
107. At all events, even in Horciag (cited above) the Court sought to establish whether the judgment upholding a provisional psychiatric detention order constituted a final decision, by referring to the rules of domestic law governing that concept. It held, in particular, that “in view of the provisional nature of the detention and of its confirmation by a court, the resumption of the proceedings by the prosecutor ’ s office in accordance with Article 273 of the Code of Criminal Procedure was not precluded, even though the prosecution had previously been discontinued”. Accordingly, in determining whether the judgment confirming the applicant ’ s detention had been final, the Court examined the various concepts laid down in substantive law governing the nature of psychiatric detention and the domestic procedure for ordering such a measure.
108. Accordingly, the Court considers that the decisions in Storbråten, Horciag and Sundqvist (all cited above) cannot be construed as requiring the designation of a “final” decision, in cases of acquittals or convictions, exclusively with reference to domestic law. It further notes a common denominator emerging from its case-law in this area as a whole: in each case the Court itself has determined what the “final” domestic decision was with reference to the explanatory report and to various concepts laid down in domestic law.
109. The Court reiterates that it consistently relies on the text of the explanatory report on Protocol No. 7 to identify the “final” decision in a particular case (see paragraph 103 above). A reading not only of Article 4 § 1 of Protocol No. 7 but also of paragraph 27 of the explanatory report indicates that the successive use of the expressions “the same State” and “that State” is intended to limit the application of the Article exclusively to the national level and thus to prevent any cross-border application. As regards the word “final”, the report itself provides the “definition” to be used in determining whether a decision is to be considered “final” within the meaning of Article 4 of the Protocol, with reference to an international convention, namely the European Convention on the International Validity of Criminal Judgments (see paragraphs 22 and 29 of the explanatory report, cited in paragraph 37 above). In order to determine whether the decision in question is “final”, the Court must therefore ascertain, as indicated in the explanatory report, whether ordinary remedies were available against the decision or whether the parties have permitted the time-limit to expire without availing themselves of those remedies.
110. Consequently, where domestic law required a particular remedy to be used for a decision to be designated as final, the Court has drawn a distinction between “ordinary” and “extraordinary” remedies. In making that distinction, having regard to the specific circumstances of the individual case, the Court has considered such factors as the accessibility of a remedy to parties or the discretion afforded to authorised officials under domestic law as regards the use of a remedy (see, for example, Nikitin, cited above, § 39). Reaffirming the need to ensure observance of the principle of legal certainty, and referring to the difficulties which might arise under Article 4 of Protocol No. 7 where a judicial decision was set aside as a result of an “extraordinary” remedy, the Court has only taken into account “ordinary remedies” in determining the “final” nature of a decision for the purposes of Article 4 of Protocol No. 7 (see Nikitin, cited above, § 39), in the autonomous Convention meaning of the term (see Sergey Zolotukhin, cited above, § 109).
111. The Court would therefore highlight the importance it attached more recently, in the case of A and B v. Norway (cited above), to the criterion of the foreseeability of the application of the law as a whole as a condition for accepting that “dual” proceedings form part of an integrated scheme of sanctions under domestic law without giving rise to any duplication of proceedings (“ bis ”) for the purposes of Article 4 of Protocol No. 7 (ibid., §§ 122, 130, 132, 146 and 152). This criterion is likewise wholly relevant to the “final” nature of a decision, as the condition for triggering the application of the safeguard provided for in that Article.
112. In that context, the Court is obliged to note that under its well-established case-law, the “lawfulness” requirement set forth in other provisions of the Convention – including the expressions “in accordance with the law”, “prescribed by law” and “provided for by law” appearing in the second paragraph of Articles 8 to 11 of the Convention and in Article 1 of Protocol No. 1, and the expression “under national [emphasis added] or international law” contained in Article 7 – concerns not only the existence of a legal basis in domestic law but also a quality requirement inherent in the autonomous concept of lawfulness; this concept entails conditions regarding the accessibility and foreseeability of the “law”, as well as the requirement to afford a measure of protection against arbitrary interferences by the public authorities with the rights safeguarded by the Convention (see, for example, Rohlena v. the Czech Republic [GC], no. 59552/08, §§ 50 and 64, ECHR 2015, as regards Article 7; Rotaru v. Romania [GC], no. 28341/95, §§ 52-56, ECHR 2000 ‑ V; Bernh Larsen Holding AS and Others v. Norway, no. 24117/08, §§ 123-24 and 134, 14 March 2013; and Roman Zakharov v. Russia [GC], no. 47143/06, §§ 228-229, ECHR 2015, as regards Article 8; Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 143, ECHR 2012, as regards Article 10; Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, §§ 114 ‑ 15 and 118, 15 November 2018, as regards Article 11; and Lekić v. Slovenia [GC], no. 36480/07, § 95, 11 December 2018, as regards Article 1 of Protocol No. 1; furthermore, as regards Article 5 § 1 of the Convention, see S., V. and A. v. Denmark [GC], nos. 35553/12 and 2 others, § 74, 22 October 2018, and Hilda Hafsteinsdóttir v. Iceland, , no. 40905/98, § 51, 8 June 2004).
113. As noted above, the Convention must be read as a whole, and interpreted in such a way as to promote internal consistency and harmony between its various provisions (see Klass and Others v. Germany, 6 September 1978, § 68, Series A no. 28; see also Maaouia v. France [GC], no. 39652/98, § 36, ECHR 2000-X; Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000-XI; and Stec and Others, cited above, § 48).
114. In the light of those considerations, the Court considers that it must, to some extent, interpret the term “final” autonomously where this is justified by sound reasons, as indeed it does when establishing whether the legal characterisation of the offence is covered by the notion of “penal procedure” (see paragraphs 54 et seq. above).
115. In order to decide whether a decision is “final” within the meaning of Article 4 of Protocol No. 7, it must be ascertained whether it is subject to an “ordinary remedy”. In establishing the “ordinary” remedies in a particular case, the Court will take domestic law and procedure as its starting-point. Domestic law – both substantive and procedural – must satisfy the principle of legal certainty, which requires both that the scope of a remedy for the purposes of Article 4 of Protocol No. 7 be clearly circumscribed in time and that the procedure for its use be clear for those parties that are permitted to avail themselves of the remedy in question. In other words, for the principle of legal certainty to be satisfied, a principle which is inherent in the right not to be tried or punished twice for the same offence (see Nikitin, cited above, § 39), a remedy must operate in a manner bringing clarity to the point in time when a decision becomes final. In particular, the Court observes in this context that the requirement of a time-limit in order for a remedy to be regarded as “ordinary” is implicit in the wording of the explanatory report itself, which states that a decision is irrevocable where the parties have permitted the “time-limit” to expire without availing themselves of such a remedy. A law conferring an unlimited discretion on one of the parties to make use of a specific remedy or subjecting such a remedy to conditions disclosing a major imbalance between the parties in their ability to avail themselves of it would run counter to the principle of legal certainty (see, mutatis mutandis, Gacon v. France, no. 1092/04, § 34 in fine, 22 May 2008).
116. The Convention undoubtedly allows States, in the performance of their function as administrators of justice and guardians of the public interest, to define what, under their domestic law, constitutes a decision by which criminal proceedings are terminated with final effect. Nevertheless, if the Contracting States could determine as they saw fit when a decision was “final” for the purposes of Article 4 of Protocol No. 7, without scrutiny by the Court, the application of that Article would be left to their discretion. A latitude extending so far might lead to results incompatible with the purpose and object of the Convention (see, mutatis mutandis, Engel and Others, cited above, § 81; Öztürk v. Germany, 21 February 1984, § 49, Series A no. 73; and Storbråten, cited above), namely to ensure that no one is tried or punished twice for the same offence. If that right were not accompanied by a safeguard permitting the determination of the “final” decision in a particular case on the basis of objective criteria, it would be very limited in scope. However, the provisions of Article 4 of Protocol No. 7 must be interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory (see Artico v. Italy, 13 May 1980, § 33, Series A no. 37, and Sergey Zolotukhin, cited above, § 80).
– Application of the above principles in the present case
117. As regards the facts of the present case, the Court notes first of all that under Romanian legislation, the prosecutor ’ s order of 7 August 2008 imposing a penalty on the applicant while also discontinuing the criminal proceedings could not have constituted res judicata, since that concept only applies to judicial decisions. Similarly, as the order was subject to review by the higher-ranking prosecutor ’ s office, it was not final under domestic law.
118. Firstly, at the material time Article 249 1 of the CCP provided that an order by which the public prosecutor ’ s office applied Article 10 (b 1 ) of the CCP and thus imposed a penalty could be challenged within twenty days of the date on which the person concerned was notified of the order. The Court observes that this remedy had a legal basis in domestic law. As regards the quality of the law governing the remedy in question, it should be noted that the text of Article 249 1 was accessible to the applicant, given that it was part of the CCP, which was itself published in the Official Gazette. Article 249 1 clearly stated that where an order discontinuing the proceedings was based on Article 10 (b 1 ) of the CCP, the individual concerned could challenge it by means of an appeal, which had to be lodged within a time-limit established by law. If no appeal had been lodged on expiry of that time-limit, the order became enforceable.
119. The Court also notes that the remedy provided for in Article 249 1 of the CCP was directly accessible to the applicant, who could have challenged the penalty within a clearly defined time-limit. If the applicant had seen fit to avail himself of the remedy, it could have led to the reconsideration of the merits of the order and the sanction imposed. Accordingly, the Court considers that this means of challenging the prosecutor ’ s order is akin to an “ordinary” remedy within the meaning of its case-law and that it must be taken into account in determining the “final” decision in the present case.
120. Secondly, at the material time, the higher-ranking prosecutor ’ s office had the option of ordering the resumption of proceedings, pursuant to Articles 270 and 273 of the CCP as then in force, after the proceedings had been discontinued, even where the discontinuance order had been based on Article 10 (b 1 ) of the CCP and a penalty had been imposed. Before a decision could be taken to resume the proceedings in the latter scenario, the penalty imposed had to be set aside. This remedy also had a legal basis in domestic law, and Articles 270 and 273 of the CCP were accessible to the applicant, since they were published in the Official Gazette.
121. It remains to be determined whether that remedy, whereby the higher-ranking prosecutor ’ s office could set aside the penalty imposed and reopen the proceedings, may be regarded as an “ordinary” remedy satisfying the requirements of legal certainty (see Nikitin, cited above, § 39).
122. In this connection, the Court cannot overlook the very specific context of the present case, which relates to a stage in the criminal proceedings prior to the referral of the case to a court. Bearing in mind the principles governing the work of prosecutors ’ offices and their role in the initial stages of criminal proceedings, it is not unreasonable for a higher-ranking prosecutor ’ s office to examine of its own motion, in the context of hierarchical supervision, the merits of decisions taken by a lower-level prosecutor ’ s office.
123. The option available to the higher-ranking prosecutor ’ s office involved the re-examination of a particular case on the basis of the same facts and the same evidence as those underlying the initial prosecutor ’ s decision to terminate the criminal proceedings after an assessment of the degree of danger to society posed by the offence, and to impose a penalty classified as administrative under domestic law.
124. In the present case, the remedy available to the interested parties and the one available to the higher-ranking prosecutor ’ s office under Articles 270 and 273 of the CCP shared the same aim of challenging the validity of the penalty imposed on the applicant by the initial prosecutor ’ s office on 7 August 2008. As regards the use of remedies pursuing the same aim, the law at the material time laid down different conditions according to their potential users: while the applicant had to avail himself of his remedy within twenty days, the higher-ranking prosecutor ’ s office was not bound by any time-limit for reconsidering the merits of a decision. The Court acknowledges that on account of its powers and role in the proper administration of criminal justice, the prosecutor ’ s office may have been entitled to different conditions in performing its review. Nevertheless, the fact remains that on account of the lack of a time-limit, Romanian law did not regulate with sufficient clarity the manner in which that remedy was to be used, thus creating genuine uncertainty as to the applicant ’ s legal situation (see paragraph 112 above), and that this discrepancy resulted in a major imbalance between the parties in their ability to make use of the remedies in question, of such a nature as to place the applicant in a situation of legal uncertainty (see paragraph 115 in fine above).
125. Therefore, the option available under Articles 270 and 273 of the CCP as in force at the material time did not constitute an “ordinary remedy” to be taken into account in determining whether the applicant ’ s conviction on the basis of the order issued by the lower-level prosecutor ’ s office on 7 August 2008 was final “in accordance with the law and penal procedure of [the] State” in question.
126. Having regard to the foregoing, the Court considers that only the option set out in Article 249 1 of the CCP as in force at the material time constituted an “ordinary” remedy to be taken into consideration in determining the “final” decision. In the instant case, the prosecutor ’ s order of 7 August 2008 fining the applicant was subject to appeal within twenty days from the date on which the applicant was notified of it. However, the applicant did not see fit to avail himself of the remedy provided for in Article 249 1 of the CCP. Although the date on which he was notified of the order of 7 August 2008 is unknown, he nonetheless took cognisance of it, allowed the twenty-day time-limit laid down in Article 249 1 of the CCP to expire and paid the fine imposed. The applicant had no other ordinary remedy available. Consequently, the order of 7 August 2008 in which a fine was imposed on the applicant had become “final”, within the autonomous Convention meaning of the term, on the expiry of the twenty-day time-limit laid down in Article 249 1 of the CCP, by the time when the higher-ranking prosecutor ’ s office exercised its discretion to reopen the criminal proceedings.
(iii) Whether the duplication of the proceedings was contrary to Article 4 of Protocol No. 7
127. The Court has found that the applicant was convicted in a final decision based on the order of 7 August 2008. In its order of 7 January 2009 the higher-ranking prosecutor ’ s office set aside the initial prosecutor ’ s order of 7 August 2008 and the penalty imposed. Although the applicant was not punished twice for the same facts – since the initial penalty imposed on him had been set aside and he had the opportunity to secure the reimbursement of the fine – the case nevertheless involved two successive sets of criminal proceedings which concerned the same facts and were thus incompatible, on the face of it, with the first paragraph of Article 4 of Protocol No. 7. Even so, such a duplication of proceedings may be compatible with Article 4 of Protocol No. 7 if the second set of proceedings involves the reopening of a case where this satisfies the requirements linked to the exception provided for in Article 4 § 2 of Protocol No. 7.
128. Article 4 of Protocol No. 7 to the Convention draws a clear distinction between a second prosecution or trial, which is prohibited by the first paragraph of that Article, and the resumption of a trial in exceptional circumstances, a situation referred to in its second paragraph. Article 4 § 2 of Protocol No. 7 expressly envisages the possibility that an individual may have to accept prosecution on the same charges, in accordance with domestic law, where a case is reopened following the emergence of new evidence or the discovery of a fundamental defect in the previous proceedings (see Nikitin, cited above, § 45, and Kadušić, cited above, § 84). The Committee of Ministers of the Council of Europe has also considered that the possibility of re-examining or reopening a case provides a guarantee of redress, particularly in the context of the execution of the Court ’ s judgments. In its Recommendation No. R (2000) 2 on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights, it urged member States to ensure that their national legal systems provided for appropriate procedures for re-examining or reopening cases (see Nikitin, cited above, § 56).
129. Article 4 § 2 of Protocol No. 7 sets a limit on the application of the principle of legal certainty in criminal matters. As the Court has stated on many occasions, the requirements of legal certainty are not absolute, and in criminal cases, they must be assessed in the light of Article 4 § 2 of Protocol No. 7, which expressly permits Contracting States to reopen a case where new facts emerge, or where a fundamental defect is detected in the proceedings (ibid.).
( α) Conditions permitting the reopening of a case within the meaning of the exception set out in Article 4 § 2 of Protocol No. 7
130. As previously noted (see paragraph 128 above), the reopening of proceedings is possible but is subject to strict conditions: the decision to reopen the case must be justified by the emergence of new or newly discovered facts or the discovery of a fundamental defect in the previous proceedings which could affect the outcome of the case. Those conditions are alternative and not cumulative.
131. The Court has already explained that circumstances relating to the case which exist during the trial, but remain hidden from the judge, and become known only after the trial, are “newly discovered”. Circumstances which concern the case but arise only after the trial are “new” (see Bulgakova v. Russia, no. 69524/01, § 39, 18 January 2007, and Vedernikova v. Russia, no. 25580/02, § 30, 12 July 2007 – as regards Article 6). The Court also considers, as is moreover noted in the explanatory report on Protocol No. 7, that the term “new or newly discovered facts” includes new evidence relating to previously existing facts (see paragraph 31 of the explanatory report, cited in paragraph 37 above).
132. In some cases, the Court has also found the exception set out in Article 4 § 2 of Protocol No. 7 to be applicable in the event of the reopening of proceedings on account of a “fundamental defect in the previous proceedings”. In the case of Fadin v. Russia (no. 58079/00, § 32, 27 July 2006), for example, it held that the reopening of proceedings on the grounds that the lower-level court had not followed the instructions given to it by the Supreme Court as regards the investigative measures to be carried out had been justified by a fundamental defect in the previous proceedings and was therefore compatible with Article 4 § 2 of Protocol No. 7 (see also Bratyakin v. Russia ( dec. ), no. 72776/01, 9 March 2006, and Goncharovy v. Russia, no. 77989/01, 27 November 2008).
133. The case-law referred to above thus indicates that the Court assesses on a case-by-case basis whether the circumstances relied upon by a higher-level authority to reopen proceedings amount to new or newly discovered facts or a fundamental defect in the previous proceedings. The concept of “fundamental defect” within the meaning of Article 4 § 2 of Protocol No. 7 suggests that only a serious violation of a procedural rule severely undermining the integrity of the previous proceedings can serve as the basis for reopening the latter to the detriment of the accused, where he or she has been acquitted of an offence or punished for an offence less serious than that provided for by the applicable law. Consequently, in such cases, a mere reassessment of the evidence on file by the public prosecutor or the higher-level court would not fulfil that criterion. However, as regards situations where an accused has been found guilty and a reopening of proceedings might work to his advantage, the Court points out that paragraph 31 of the explanatory report to Protocol No. 7 (see paragraph 37 above) emphasises that “ this article does not prevent a reopening of the proceedings in favour of the convicted person and any other changing of the judgment to the benefit of the convicted person”. In such situations, therefore, the nature of the defect must be assessed primarily in order to ascertain whether there has been a violation of the defence rights and therefore an impediment to the proper administration of justice. Lastly, in all cases, the grounds justifying the reopening of proceedings must, according to Article 4 § 2 of Protocol No. 7 in fine, be such as to “affect the outcome of the case” either in favour of the person or to his or her detriment (see, to that effect, paragraph 30 of the explanatory report to Protocol No. 7, cited in paragraph 37 above).
( β) Considerations specific to the present case
134. Turning to the circumstances of the case, the Court notes that the higher-ranking prosecutor ’ s order and the subsequent proceedings concerned the same accusations as those that had given rise to the proceedings resulting in the order of 7 August 2008, and that their purpose was to review whether that order was well-founded. The higher-ranking prosecutor ’ s order of 7 January 2009 had the effect of entirely setting aside the previous order of 7 August 2008. This was necessary to enable the case file to be returned to the same prosecutor ’ s office, which could then continue the investigation in compliance with the orders issued, that is to say instituting criminal proceedings against the applicant and committing him for trial. Following the institution of fresh proceedings, the applicant stood trial, in the course of which the criminal charges against him were determined in a new, single decision. The present case therefore involves a system permitting the resumption of proceedings, which may be regarded as a special form of reopening for the purposes of Article 4 § 2 of Protocol No. 7 (see Nikitin, cited above, § 46, and Fadin, cited above, § 31).
135. It is clear from the order of 7 January 2009 that the reopening concerned the same facts as those forming the subject of the order of 7 August 2008. The higher-ranking prosecutor gave his decision on the basis of the same case file as the initial prosecutor, no new evidence having been adduced and examined. The reopening of the case was therefore not justified by the emergence of new or newly discovered facts, a finding which, moreover, does not appear to be in dispute.
136. Conversely, the Government argued that the reopening of the criminal proceedings had been justified by a fundamental defect in the previous proceedings and had been necessary in order to ensure the standardisation of practice concerning the assessment of the seriousness of certain offences (see paragraph 76 above). However, the Court observes that that aspect was not mentioned in the order of 7 January 2009. The Prosecutor General ’ s memorandum, which was published long after the facts, contained no clear indications on how Article 18 1 of the Criminal Code should be interpreted in the context of road traffic offences. In any event, the reason put forward by the Government – the need to harmonise practice in this area – is not covered by the exceptional circumstances referred to in Article 4 § 2 of Protocol No. 7, that is to say, the emergence of new or newly discovered facts or the discovery of a fundamental defect in the previous proceedings.
137. Nevertheless, according to the same order of 7 January 2009, the reopening of the proceedings in the present case was justified by the higher-ranking prosecutor ’ s different assessment of the circumstances, which in his view should have given rise to criminal rather than “administrative” liability on the applicant ’ s part. The higher-ranking prosecutor also referred to the inadequacy of the penalty imposed. A fresh assessment was conducted of the seriousness of the accusations against the applicant and of the penalty imposed; no mention was made of any need to remedy a breach of a procedural rule or a serious omission in the proceedings or in the investigation conducted by the initial public prosecutor ’ s office. But as pointed out above, a [mere] reassessment of the facts in the light of the applicable law does not constitute a “fundamental defect” in the previous proceedings (contrast Fadin, cited above, § 32; Bratyakin, cited above; and Goncharovy, cited above; and see, mutatis mutandis, Savinskiy v. Ukraine, no. 6965/02, § 25, 28 February 2006, and Bujniţa v. Moldova, no. 36492/02, § 23, 16 January 2007).
138. Having regard to the foregoing, the Court considers that the reasons given by the higher-ranking prosecutor ’ s office to justify the reopening of the proceedings on the basis of the order of 7 January 2009 are at variance with the strict conditions imposed by Article 4 § 2 of Protocol No. 7. Therefore, the reopening of the proceedings in the instant case was not justified by the exception set out in that provision.
139. The Court finds that the applicant was convicted on the basis of the order of 7 August 2008, which had become final when a further prosecution was triggered by the order of 7 January 2009. Given that none of the situations permitting the combination or reopening of proceedings has been observed in the present case, the Court concludes that the applicant was tried twice for the same offence, in breach of the ne bis in idem principle.
There has accordingly been a violation of Article 4 of Protocol No. 7 to the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
140. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
141. In his claim for just satisfaction submitted to the Chamber the applicant sought 15,000 (EUR) in respect of non-pecuniary damage. The Government submitted that any finding of a violation could in itself constitute sufficient redress. In the alternative, they submitted that the amount claimed was speculative and excessive.
142. Following the Chamber ’ s relinquishment of jurisdiction to the Grand Chamber, in order to avoid complicated references to the observations previously submitted to the Chamber, the parties were invited to submit fresh observations on the admissibility and the merits of the application by 14 June 2018. Furthermore, the applicant was invited to resubmit his claim for just satisfaction.
143. In his observations of 14 June 2018 before the Grand Chamber, the applicant did not make any specific claims for just satisfaction. At the hearing before the Grand Chamber, his representative nevertheless concluded his address by requesting that the applicant “be awarded the sum previously claimed in respect of just satisfaction.”
144. Further to those indications, the Government made no comments on the issue of just satisfaction.
145. The Court reiterates that that Article 41 empowers it to afford the injured party such satisfaction as appears to be appropriate (see Karácsony and Others v. Hungary [GC], nos. 42461/13 and 44357/13, § 179, 17 May 2016, and Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, § 245, 19 December 2017).
146. It observes in this connection that it is beyond doubt that a claim for just satisfaction was duly submitted to the Chamber, within the time allowed, in the course of the procedure following notification of the application (contrast Schatschaschwili v. Germany [GC], no. 9154/10, § 167, ECHR 2015, and Nagmetov v. Russia [GC], no. 35589/08, § 62, 30 March 2017). The Court further notes that although the applicant did not make any fresh claim for just satisfaction within the time allowed in the proceedings before the Grand Chamber, he subsequently referred to his claim before the Chamber. The Government, who had the opportunity to respond to this claim at the hearing, did not object.
147. In view of the above, the Court is satisfied that a “claim” for just satisfaction has been made before it in the present case.
148. The Court considers in this regard that a mere finding of a violation is insufficient to compensate the applicant for the sense of injustice and frustration which he must have felt on account of the reopening of the proceedings (see, to similar effect, Jóhannesson and Others, cited above, § 61). Given the nature of the violation found and making its assessment on an equitable basis, the Court awards the applicant EUR 5,000 in respect of non-pecuniary damage.
149. The applicant, who was granted legal aid for the proceedings before the Grand Chamber, had claimed EUR 570 before the Chamber in respect of the costs and expenses incurred before the domestic courts and the Court.
150. The Government argued before the Chamber that the costs incurred before the domestic courts had no causal link with the violation of the Convention alleged by the applicant. As regards the costs incurred during the proceedings before the Court, they submitted that they had not been substantiated by relevant documents.
151. The Court observes that the applicant was granted legal aid for the costs and expenses incurred in the proceedings before the Grand Chamber. Nonetheless, having regard to the claim submitted to the Chamber, the documents in its possession, its case-law and the fact that the applicant was forced to mount a defence in criminal proceedings which had been instituted and reopened in breach of Article 4 of Protocol No. 7 to the Convention (see Grande Stevens and Others v. Italy, nos. 18640/10 and 4 others, § 244, 4 March 2014), the Court considers it reasonable to award the applicant the sum of EUR 470 to cover costs under all heads.
152. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;