Imposition of a minimum fine that was not criminal in nature and criminal conviction. Non-violation of the principle ne bis in idem
JUDGMENT
Prina v. Romania 01.10.2020 (app. no. 37697/13)
SUMMARY
The case concerned two penalties imposed on the applicant for acts allegedly committed in his
capacity as head of the city’s technical department: an administrative fine and a suspended prison
sentence.
The Court reiterated that the first paragraph of Article 4 of Protocol No. 7 set forth the three
components of the right not to be tried or punished twice (ne bis in idem): the two sets of
proceedings had to be “criminal” in nature; they had to concern the same facts; and there had to be
duplication of the proceedings.
In the present case, observing that the fine imposed on the applicant could not have been replaced
by a custodial sentence in the event of non-payment or given rise to an entry in the criminal record,
the Court concluded that the fine had not been a “criminal” penalty within the meaning of its
case-law. Accordingly, Article 4 of Protocol No. 7 was not applicable in this case.
PROVISION
Article 4 of the 7th Protocol
PRINCIPAL FACTS
The applicant, Minel Florin Prina, is a Romanian national who was born in 1973 and lives in Slatina
(Romania). He was head of the city’s technical department and, at the time of the events, was in
charge of managing and coordinating investments, civil-engineering projects, calls for tenders and
public contracts. He was also a member of the public procurement board.
In 2006 he was ordered by the Court of Auditors to pay an administrative fine of 3,000 Romanian lei
(RON – approximately 850 euros (EUR)) for “several finance-related breaches” of the rules on the
award of public contracts. He paid the fine.
Later the same year Mr Prina was sentenced by the Craiova Court of Appeal to a suspended term of
four years’ imprisonment for abuse of power, following criminal proceedings brought against him by
the national anti-corruption prosecution service.
The Court of Appeal held that the ne bis in idem principle was not applicable in the case at hand
since the criminal proceedings concerned the award of 18 public contracts, whereas the fine
imposed on the applicant by the Court of Auditors had related to the conduct of 12 public
procurement procedures and had not been criminal in nature.
Mr Prina denied the charges before the Court of Appeal, arguing that he had merely implemented
the decisions taken by the municipal council and the public procurement board.
THE DECISION OF THE COURT…
Article 4 of Protocol No. 7
The Court reiterated that Article 4 of Protocol No. 7 set forth three components of the ne bis in idem
principle: the two sets of proceedings had to be “criminal” in nature; they had to concern the same
facts; and there had to be duplication of the proceedings.
In the present case, the Court noted that the Romanian Government had disputed the presence of
the first of these three components.
The Court’s established case-law set out three criteria to be considered in determining whether or
not there was a “criminal charge”: the legal classification of the measure in question in national law,
the very nature of the measure, and the nature and degree of severity of the “penalty” that the
person concerned risked incurring (Engel and Others v. the Netherlands). The second and third
criteria were alternative, and not necessarily cumulative.
With regard to the legal classification, the Court noted that domestic law did not classify the
offences for which the applicant had been fined as “criminal”. In addition, it observed that the Court
of Auditors had found that the acts committed had not been sufficiently serious to constitute a
criminal offence and had not referred them to the prosecuting authorities.
Concerning the very nature of the provision of domestic law forming the legal basis for the
applicant’s fine, the Court found that the sanction imposed by the Court of Auditors was more akin
to the exercise of disciplinary powers in respect of civil servants than to the imposition of penalties
that were generally applicable to all citizens for committing criminal offences.
As to the degree of severity of the penalty, the Court pointed out that this was determined by
reference to the maximum penalty provided for by the applicable legal provision. The maximum fine
provided for by domestic law was RON 7,500 (approximately EUR 2,100). The applicant had been
fined RON 3,000 (approximately EUR 850), the minimum amount that could be imposed.
In view of the above considerations, and bearing in mind that the fine in question could not have
been replaced by a custodial sentence in the event of non-payment or given rise to an entry in the
criminal record, the Court concluded that the fine imposed on the applicant had not been a“criminal” penalty within the meaning of its case-law.
Accordingly, Article 4 of Protocol No. 7 was not applicable in the present case. The application was
therefore inadmissible.
