The imposition of two sentences, administrative fine and imprisonment in different proceedings for the same offense violates the ne bis in idem principle
GRAND CHAMBER JUDGMENT
Mihalache v. Romania 08-07-2019 (no. 54012/10)
Conviction the same accused in two sentences in different proceedings for the same offense and for the same facts. Refusal of the applicant to undergo a blood test as part of a police check to determine the level of alcohol in his blood. Claiming that he had been persecuted twice for the same offense, on the one hand the imposition of the administrative fine by the Prosecutor, on the other hand, the imposition by a court of a suspended sentence of one year with suspension. The Court found that the applicant had been convicted twice of the same offense in breach of the ne bis in idem principle. Infringement of Article 4 of the 7th Protocol (right not to be tried or punished twice) of the ECHR.
Article 4 of the 7th Additional Protocol
The applicant, Erik Aurelian Mihalache, is a Romanian national who was born in 1975 and lives in
In May 2008 Mr Mihalache was stopped in his car by the police as a preventive control measure. He
underwent a breathalyser test, which proved positive. The police officers then asked him to
accompany them to a hospital for a blood test, but Mr Mihalache refused.
In July 2008 the public prosecutor’s office instituted criminal proceedings against him for refusing to
undergo biological tests to determine his blood alcohol level. On 7 August 2008 the public
prosecutor’s office terminated the proceedings on the grounds that the acts committed were not
sufficiently serious to constitute an offence. However, it ordered Mr Mihalache to pay an
administrative fine equivalent to around 250 euros. No appeal was lodged against that order, and
Mr Mihalache paid the fine, together with court fees, on 15 August 2008.
In January 2009 the higher-ranking public prosecutor’s office decided, ex officio, to set aside order
of 7 August 2008 on the grounds that an administrative penalty had not been appropriate in the light
of the degree of general and specific danger to society posed by the facts of the case. Subsequently,
the case was referred back to the prosecutor’s office with a view to continuing the criminal
In March 2009 Mr Mihalache was committed for trial. In November 2009 he was sentenced to a
suspended term of one year’s imprisonment for refusing to undergo a blood test. He appealed
against that decision, but the Galati Court of Appeal dismissed his appeal by final judgment delivered
on 14 June 2010.
In March 2013 the Chief Prosecutor invited the financial authorities to refund the fine paid by Mr
Mihalache pursuant to the order of 7 August 2008. In October 2013 a police officer went to the
applicant’s home to inform him of the procedure for reimbursing the fine. According to the
documents on file, the applicant never requested the reimbursement of the sums paid.
THE DECISION OF THE COURT
Article 4 of Protocol No. 7 (right not to be tried or punished twice/”ne bis in idem”)
The Court pointed out that the “ne bis in idem” principle comprised three elements.
Firstly, both sets of proceedings had to be criminal in nature. In the instant case the Court
concluded that both sets of proceedings – that resulting in the order of 7 August 2008
(administrative fine) and that resulting in the 14 June 2010 judgment of the Galați Court of Appeal
(suspended prison sentence) – had been criminal in nature.
Secondly, both sets of proceedings had to concern the same facts. The Court noted that in both
sets of proceedings Mr Mihalache had been prosecuted and punished for refusing to undergo a
blood alcohol test during the night from 2 to 3 May 2008, following a police road traffic check. Both
decisions therefore concerned the same facts and the same charges.
Thirdly, there had to have been duplication of proceedings. The Court pointed out that Article 4 of
Protocol No. 7 was geared to prohibiting duplication of finally closed criminal proceedings. The Court observed that the prosecution order of 7 August 2008 constituted a conviction (a deterrent and punitive sanction) which had become final, within the autonomous meaning of the Convention, on the expiry of the 20-day period laid down in Article 2491 of the Code of Criminal Procedure (CCP) in force at the material time. In that connection, the Court pointed out that only the option set out in Article 2491 of the CCP as in force at the material time had constituted an “ordinary” remedy to determine whether the 7 August 2008 order had become final, and not the remedy available to the higher-ranking public prosecutor (Articles 270 and 273 CCP) in order to set aside ex officio the
decision given by the lower prosecutor’s office. Owing to the absence of a time-limit, Romanian law
had failed to regulate with sufficient clarity the manner in which that remedy should be used, thus
causing Mr Mihalache genuine uncertainty as to his legal situation.
Given that the 7 August 2008 order had constituted a “final decision” within the autonomous
meaning of the Convention, its annulment by the higher-ranking prosecutor and the reopening of
the proceedings constituted duplication of the latter. Such duplication of proceedings could be
compatible with Article 4 of Protocol No. 7 if the second set of proceedings constituted a reopening
in accordance with the conditions set out in Article 4 § 2 of Protocol No. 7. In the present case, the
Court noted that the higher-ranking prosecutor had given his decision on the basis of the same case
file and that no new fact had been presented or adduced in the file. The reopening of the
proceedings had therefore not been justified by the emergence of new or newly-discovered facts or
by any fundamental defect in the previous proceedings. The Court therefore considered that the
reasons put forward by the higher-ranking prosecutor’s office to justify the reopening of the
proceedings were inconsistent with the strict criteria laid down in Article 4 of Protocol No. 7, and
that the reopening of the proceedings had not been justified.
Consequently, the Court found that Mr Mihalache had been convicted on the basis of the 7 August
2008 order, which had become final at the time of commencement of the new proceedings. Given
that none of the situations permitting the combination or reopening of proceedings had been
observed in the present case, the Court concluded that Mr Mihalache had been tried twice for the
same offence, in breach of the ne bis in idem principle. There had accordingly been a violation ofArticle 4 of Protocol No. 7 to the Convention.
Just satisfaction (Article 41)
The Court held that Romania was to pay the applicant 5,000 euros (EUR) in respect of non-pecuniary
damage and EUR 470 in respect of costs and expenses.
Judges Raimondi, Nussberger, Sicilianos, Spano, Yudkivska, Motoc and Ravarani expressed a joint
concurring opinion. Judges Pinto de Albuquerque and Serghides each expressed a concurring
opinion. Judge Bošnjak expressed a concurring opinion, joined by Judge Serghides. These opinions
are annexed to the judgment(www. echrcaselaw.com).