The mistakes of prosecutors and judges must be borne by the state and not corrected to the detriment of the accused! Double conviction for driving without a license. Violation of the principle ne bis in idem.
JUDGMENT
Stăvilă v. Romania 01.03.2022 (app. no. 23126/16)
SUMMARY
The applicant was referred to trial for driving without a license. The prosecutor terminated the criminal prosecution by order due to the non-seriousness of the crime and imposed an administrative fine. The appellate prosecutor annulled the order and remanded the case for trial. He was sentenced to prison. He filed a complaint for violation of a fair trial, lack of a real appeal and violation of his right not to be tried twice.
The Court found that the complaint for breach of the fair trial was brought out of time six months after the irrevocable decision of the domestic court and rejected it under Articles 35 §1 and 4 of the ECHR. It further found that the applicant had legal remedies against the prosecutor’s decision, which he did not pursue and dismissed the complaint as inadmissible.
With regard to the violation of his right to a double sentence, the ECtHR reiterated that the mistakes of the authorities should work in favor of the accused. In other words, the risk of any error on the part of the prosecution, or a court, must be borne by the state and the errors must not be corrected to the detriment of the person involved. In the present case, it found that the reopening of the proceedings in the present case was not sufficiently justified by the invocation of new evidence and held that the applicant had been tried twice for the same offense.
The ECtHR found a violation of the ne bis in idem principle (Article 4 of Protocol 7 to the ECHR).
PROVISIONS
Article 6 par 1
Article 13
Article 4 of the 7th Additional Protocol
PRINCIPAL FACTS
The case concerns the applicant’s complaint that he was convicted twice for the same driving
offence.
Following a routine police check in April 2013, criminal proceedings were instituted against
Mr Stăvilă for driving a vehicle without possessing a driving licence. However, later that year the
local prosecutor’s office discontinued the proceedings on the ground that his acts were not serious
enough to constitute an offence and imposed an administrative fine on him. In August 2014, that
decision was set aside by the Timişoara Prosecutor’s Office, the criminal proceedings were reopened
and Mr Stăvilă was subsequently sentenced to imprisonment.
Relying on Article 6 (right to a fair trial) and Article 13 (right to an effective remedy) of the European
Convention of Human Rights, and Article 4 of Protocol No. 7 (right not to be tried or punished twice)
to the European Convention, the applicant complains that the reopening of criminal proceedings
against him, and his subsequent conviction, breached his defence rights, the principle of equality of
arms and of legal certainty, and his right not to be tried and punished twice for the same offence.
THE DECISION OF THE COURT…
Alleged breach of the applicant’s rights of defence, equality of arms and legal certainty during the pre-trial judge proceedings which reviewed the decision to reopen the proceedings
The Court observes, however, that it has already established that a decision of a prosecutor’s office discontinuing criminal proceedings against an applicant on the ground that the acts were not serious enough to constitute an offence, while at the same time imposing an enforceable administrative penalty on him for the acts he had committed, after the prosecutor’s office had assessed all the circumstances of the case, became final, within the autonomous Convention meaning of the term, on the expiry of the lawfully allowed time-limit for the applicant to avail himself of the remedy provided for him to challenge that decision.
The Court notes that it is uncontested by the parties that, having taken cognisance of the decision of 4 November 2013, the applicant did not see fit to avail himself of the remedy provided for him to challenge it. Also, the Government have not contended, and in any event they have not presented any evidence in that regard, that the mere fact that the applicant failed to pay the fine imposed on him reinstated the allowed time-limit for the above-mentioned remedy.
The Court therefore sees no reason to doubt that the decision of the prosecutor’s office of 4 November 2013 was final within the meaning of the Convention by the time when, on 13 August 2014, the superior prosecutor’s office exercised its discretion to reopen the criminal proceedings against the applicant.
In these circumstances, the Court considers that it was the very act of the pre-trial judge confirming on 24 September 2014 the decision of the superior prosecutor’s office of 13 August 2014 which quashed the decision of 4 November 2013, that triggered the start of the six‑month time-limit in respect of the applicant’s complaints concerning the reopening of the proceedings. The applicant has not argued that he had not become fully aware of the content of the pre‑trial judge’s interlocutory judgment and its consequences by the time the superior prosecutor’s office took his statement on 11 December 2014. Nonetheless, the applicant lodged his application before the Court on 18 April 2016 – that is to say more than six months after he had become aware of the alleged violation of his rights of defence, equality of arms and the requirement of legal certainty by the pre-trial judge.
As to the question whether the applicant had adequate domestic remedies to complain against the particular act which he considered to be in breach of the Convention, the Court notes that he has acknowledged that in the absence of the CC decision of 23 June 2015, the domestic courts, including the pre-trial judge reviewing the lawfulness of his indictment, would have had no valid legal reason to review the fairness of the decision of 13 August 2014 and the final interlocutory judgment of 24 September 2014 delivered in his case. Therefore, raising his complaint before the domestic courts would have not offered him any reasonable prospect of success.
It is true that the Government and the domestic courts seem to disagree with the applicant’s opinion that raising his complaint concerning the unfairness of the final interlocutory judgment of 24 September 2014 before the pre-trial judge who reviewed the lawfulness of his indictment would have been devoid of any prospect of success.
Nevertheless, the Court is not persuaded that it can disagree with the applicant’s view. It observes in this regard that the Government have not submitted any concrete examples of domestic case-law, especially from before the CC’s decision of 23 June 2015, showing that pre-trial judges reviewing the lawfulness of indictments have also examined and allowed possible arguments similar to those raised by the applicant, concerning the fairness of finalised pre-trial judge proceedings which confirm the lawfulness of prosecutorial decisions to reopen criminal proceedings. Likewise, the Prosecutor General’s opinion, expressed years after the proceedings in the applicant’s case had ended and presumably after the case-law of the national courts had had some time to develop, seems to confirm the fact that pre-trial judge proceedings which review prosecutorial decisions to reopen criminal proceedings which ended before the CC delivered its decision, were final and were no longer subject to review.
In this context, the Court finds it difficult to accept the applicant’s approach of remaining inactive and waiting for the end of his trial once he was aware of the interlocutory judgment of 24 September 2014, before bringing an application to the Court.
Even assuming that it could ignore the fact that the applicant had no way of knowing in December 2014 that the Ombudsman would bring a constitutional challenge on 3 March 2015 before the CC , or that that challenge would actually be successful, given the express language of the Constitution about the effects of CC decisions allowing constitutional challenges (see paragraph 37 above), the Court has serious doubts that the applicant could have reasonably expected at any stage of the proceedings that he was involved in, that the CC decision in question could have any effect in the circumstances of his case, or that a trial court would implement it.
This is even more so given that the CC decision in question concerned solely the relevant procedural rules regarding pre-trial judge proceedings which reviewed prosecutorial decisions to reopen criminal proceedings, which in the applicant’s case had ended with a final interlocutory judgment long before the CC delivered its decision. Indeed, both ordinary trial courts seem to have given consideration to and rejected this argument, reiterating that CC’s decisions had only ex nunc effects.
Having regard to all of the above, the Court is of the opinion that the applicant must, or at least should, have realised on 11 December 2014 that he had not had any adequate domestic remedy offering him a reasonable prospect of success for his complaint concerning the alleged unfairness of the pre-trial proceedings which reviewed the decision of the superior prosecutor’s office to reopen the proceedings against him.
It follows that this part of the application was lodged out of time and must be rejected, in accordance with Article 35 §§ 1 and 4 of the Convention.
- Alleged breach of the applicant’s rights of defence and equality of arms during the trial proceedings
The Court notes that the applicant complained that the trial courts had refused to examine his arguments concerning the unlawfulness of the decision reopening the proceedings against him. Nevertheless, it notes that the applicant was clearly able to raise all his arguments concerning the unlawfulness of that decision before the trial courts, and that the trial courts examined and dismissed those arguments by providing reasons.
The Court considers therefore that the applicant’s dissatisfaction concerned the quality of the reasons provided by the trial courts for dismissing his arguments, in particular their manner of interpreting the relevant legal framework applicable in his case, rather than the absence of such reasons.
It transpires from the Court’s case-law that a domestic judicial decision cannot be qualified as arbitrary to the point of prejudicing the fairness of proceedings unless no reasons are provided for it or if the reasons given are based on a manifest factual or legal error committed by the domestic court, resulting in a “denial of justice”, the Court cannot discern any element in the reasons provided by the trial courts in their judgments that would indicate that they were based on manifest errors that would render the decisions in question arbitrary to the point of prejudicing the fairness of the proceedings in the applicant’s case.
It follows that this part of the application is manifestly ill-founded and must be rejected, pursuant to Article 35 §§ 3 and 4 of the Convention.
ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The Court reiterates that Article 13 requires a remedy in domestic law only in respect of grievances which can be regarded as “arguable” in terms of the Convention (see Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131). In addition, the role of Article 6 in relation to Article 13 is that of lex specialis, the requirements of Article 13 being absorbed by the more stringent requirements of Article 6 (see, for example, Kuznetsov and Others v. Russia, no. 184/02, § 87, 11 January 2007, and Efendiyeva v. Azerbaijan, no. 31556/03, § 59, 25 October 2007).
Given that the applicant’s complaints under Article 6 of the Convention were declared inadmissible and therefore his grievances in this connection cannot be regarded as “arguable” in terms of the Convention and that in any event the applicant could raise objections as to the fairness of the proceedings and the ne bis in idem principle before the national courts, the Court considers that the applicant’s complaint under Article 13 is manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention and must be rejected pursuant to Article 35 § 4.
ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL NO. 7 TO THE CONVENTION
The Court reiterates the principles set out in its case-law concerning the duplication of criminal proceedings.
In the instant case, the Court notes that the Government have not contested that the proceedings leading to the decision of 4 November 2013 and those leading to the final judgment of 22 October 2015 were criminal in nature for the purpose of Article 4 of Protocol No. 7. Moreover, they have not contested that those two decisions concerned the same facts. The Court sees no reason to hold otherwise.
It therefore remains to be determined whether there was a duplication of proceedings in the applicant’s case.
The Court notes that the Government have also acknowledged that the decision of the prosecutor’s office discontinuing the proceedings against the applicant entailed a “conviction” within the substantive meaning of the term . The Court does not find any reasons to hold otherwise.
Moreover, despite the Government’s arguments to the contrary, the Court has already established that the above-mentioned decision was a final one within the meaning of the Convention by the time when, on 13 August 2014, the superior prosecutor’s office exercised its discretion to reopen the criminal proceedings against the applicant.
According to the Court’s case-law, a decision by a superior prosecutor’s office to reopen proceedings concluded by a final conviction which is the result of a mere reassessment of the facts in the light of the applicable law, in the absence of emergent new or newly discovered facts or evidence or the discovery of a fundamental procedural defect concerning those proceedings, is not covered by the exceptional circumstances referred to in Article 4 § 2 of Protocol No. 7 justifying a possible reopening of the proceedings (see Mihalache, cited above, §§ 135-37).
In the present case, the superior prosecutor’s office and the pre-trial judge made their decisions on the basis of the same case file as the prosecutor’s office, 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.
Moreover, it appears from the decision of 13 August 2014 and the interlocutory judgment of 24 September 2014 that the reopening of the proceedings was justified by the superior prosecutor’s office’s and the pre-trial judge’s different interpretation of the relevant legislation and assessments of the circumstances of the case, which in their view should have been examined within the ambit of a criminal trial and could not be considered of “minimal impact” and punishable by a simple “administrative” fine .
The Government pointed out that the trial courts had also taken into account when assessing the case that the applicant had committed the offence in question during the probation period of a two months’ suspended prison sentence imposed on him for a previous offence . The Court notes, however, that the Government have admitted that this ground was not relied on by the superior prosecutor’s office or the pre-trial judge in their decisions to reopen the proceedings against the applicant. Thus, the Court finds it difficult to accept that this ground was also among the reasons prompting the reopening of the proceedings against the applicant.
Even assuming that the Court could agree that the reopening of the proceedings against the applicant was prompted by errors made by the prosecutor’s office when assessing the particular circumstances of the applicant’s case in the light of the applicable law, it reiterates that the mistakes or errors of the State authorities should serve to the benefit of the defendant. In other words, the risk of any mistake made by the prosecuting authority, or indeed a court, must be borne by the State and errors must not be remedied at the expense of the individual concerned (see Radchikov v. Russia, no. 65582/01, § 50, 24 May 2007).
The mere consideration that the investigation in the applicant’s case led to an erroneous discontinuation of the proceedings cannot in itself, in the absence of jurisdictional errors or serious breaches of court procedure, abuses of power, manifest errors in the application of substantive law or any other weighty reasons stemming from the interests of justice, indicate the presence of a fundamental defect in the previous proceedings. Otherwise, the burden of the consequences of the investigative authorities’ lack of diligence during the pre-trial investigation would be shifted entirely onto the applicant and, more importantly, the mere allegation of a shortcoming or failure in the investigation, however minor and insignificant it might be, would create an unrestrained possibility for the prosecution to abuse process by requesting the reopening of finalised proceedings (ibid., § 48).
The Court therefore cannot agree with the Government’s allegation that the reopening of the criminal proceedings against the applicant was justified by a fundamental defect in the previous proceedings .
Having regard to the foregoing, the Court takes the view that the reasons given by the superior prosecutor’s office and the pre-trial judge to justify the reopening of the proceedings on the basis of the decision of 13 August 2014 are at variance with the strict conditions imposed by Article 4 § 2 of Protocol No. 7. The reopening of the proceedings in the instant case was therefore not justified by the exception set out in that provision.
It follows that the applicant was convicted on the basis of the decision of 4 November 2013, which had become final by the time a further prosecution was triggered by the decisions of 13 August and 24 September 2014. Given that none of the situations permitting the combination (see A and B v. Norway [GC], nos. 24130/11 and 29758/11, §§ 112-34, 15 November 2016) or reopening of proceedings arose 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.
