MIHAI v. ROMANIA (European Court of Human Rights)

FOURTH SECTION
DECISION
Application no. 50266/13
Nicolae MIHAI
against Romania

The European Court of Human Rights (Fourth Section), sitting on 3 September 2019 as a Committee composed of:

Faris Vehabović, President,
Iulia AntoanellaMotoc,
Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,

Having regard to the above application lodged on 29 July 2013,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Nicolae Mihai, is a German national who was born in 1958. He is currently serving a prison sentence in Landsberg am Lech Prison. He was represented before the Court by Mr R.I. Motica and Mr R. Giebenrath, lawyers practising in Timişoara and Strasbourg respectively.

2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs. The German Government did not make use of their right to intervene in the proceedings (Article 36 § 1 of the Convention).

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

1. The incident of 6 May 2008

4. On 6 May 2008 the applicant accompanied his mother to the Timiş County Court where she was party to civil proceedings against S.I. in connection with a plot of land.

5. The applicant entered the court carrying a weapon and four cartridges. Following an exchange of remarks between the applicant and S.I., the latter pushed the applicant into the courtroom during the hearing. His unexpected entrance with a gun in his hand generated panic and the hearing was immediately suspended. The incident was videotaped.

6. The police officer on duty in the courtroom confiscated the applicant’s weapon and ammunition. The officer drew up a report describing the applicant’s conduct.

2. Administrative proceedings

7. On 9 May 2008 the applicant was ordered to pay an administrative fine of 2,000 Romanian lei (RON, the equivalent of approximately 500 euros) for the criminal administrative offence of carrying a non-lethal weapon in a court of justice, contrary to Articles 62 § 2 (a) and 132 point 22 of Law no. 295/2004 (see paragraphs 19 and 20 below).

8. The decision of 9 May 2008 did not become final. The applicant lodged a complaint with the administrative court against this sanction.

9. On 14 May 2009 the Timişoara District Court took note that criminal proceedings had been instituted against the applicant in connection with the same events (see paragraph 12 below). Consequently, it suspended of its own motion the administrative proceedings on the basis of Article 244 (2) of the Code of Civil Procedure (see paragraph 26 below).

10. After his final conviction by the criminal court on 19 February 2013 (see paragraph 18 below) the applicant did not continue the administrative proceedings which could have led to the cancelling of the administrative fine.

11. Moreover, he had paid the administrative fine on 5 January 2009 as proved by the copy of the receipt he had attached to the written observations he had submitted with the Court.

3. Criminal proceedings

12. On 13 October 2008 a criminal investigation in connection with the incident of 6 May 2008 (see paragraphs 4–6 above) was initiated against the applicant. On 21 November 2008 the applicant was remanded in custody. On 16 March 2009 he was released from prison under judicial control.

13. On 15 December 2008 the applicant was charged with two concurrent offences arising from the same act, namely the offence of non‑observance of the regulations concerning firearms and ammunition (nerespectarearegimuluiarmelorşimuniţiilor) under Article 279 § 3 of the Criminal Code (see paragraph 24 below), and the offence of outrage to public decency and breach of public order (ultraj contra bunelormoravurişitulburareaordiniipublice) under Article 321 § 1 of the Criminal Code (see paragraph 25 below).

14. On 7 March 2011 the Timişoara District Court found the applicant guilty as charged and sentenced him to five years and four months’ imprisonment, suspended on probation.

15. The applicant lodged an appeal in cassation, claiming among other things that he had already paid an administrative fine in connection with the same events.

16. On 22 September 2011 the Timişoara Court of Appeal allowed the appeal in cassation lodged by the applicant, set aside the judgment and sent the case back to the district court. The appeal court found that the facts had been well established by the first-instance court, but the court had omitted to mention in the operative part that the period spent by the applicant under pre-trial detention should be deducted from the imposed sentence.

17. On 1 October 2012 the Timişoara District Court convicted the applicant as charged and sentenced him to five years and four months’ imprisonment with effective execution of the sentence.

18. On 19 February 2013 the Timişoara Court of Appeal dismissed the appeal on points of law lodged by the applicant as unfounded.

B. Relevant domestic law

1. Law no. 295/2004 on firearms and ammunition

19. Article 62 § 2 (a) of the law, as in force at the material time, prohibited the access of persons carrying non-lethal arms to places where the use of such arms was forbidden by law.

20. Pursuant to Article 132 point 22 a breach of Article 62 was considered an administrative offence. A fine of between RON 1,000 and 2,000 was provided by Article 133 (c) for committing such an offence.

21. Article 135 stipulated that the administrative offences under Article 132 were governed by the provisions of Government Ordinance no. 2/2001 on administrative offences.

2. Government Ordinance no. 2/2001 on administrative offences approved with further amendments by Law no.180/2002

22. Under Article 31 of the ordinance, as in force at the relevant time, a decision imposing an administrative penalty (procesul verbal de constatare a contravenţiei) could be challenged by way of judicial review within fifteen days after it had been served.

23. Art. 391provided that the court could replace an unpaid fine with up to 50 hours of community service.

3. The relevant provisions of the Criminal Code

24. The unlawful carrying of firearms in buildings belonging to public authorities was prohibited under Article 279 § 3 of the Criminal Code, as in force at the material time. The offence was punishable by imprisonment of five to fifteen years.

25. Acts which seriously breached public order were punishable under Article 321 § 1 of the Criminal Code, as in force at the material time, by imprisonment of between two and seven years.

4. The Code of Civil Procedure in force at the relevant time

26. Pursuant to Article 244 § 2 of the code a court examining a civil action could suspend proceedings if criminal proceedings had been instituted in relation to an offence the determination of which was decisive for the outcome of the civil dispute.

COMPLAINT

27. The applicant complained of a violation of the ne bis in idem principle under Article 4 of Protocol No. 7 to the Convention.

THE LAW

28. The applicant complained that he had been tried twice for the same offence through the imposition of an administrative fine and a subsequent criminal trial, in violation of Article 4 of Protocol No. 7 to the Convention, as the two sets of proceedings had been based on identical facts.

Article 4 of Protocol No. 7 to the Convention reads as follows:

“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.”

A. The parties’ submissions

1. The applicant

29. The applicant argued that it was an indisputable fact that he had been subject to two sets of proceedings and to two punishments for an offence that had been derived from identical events, which consisted of carrying a weapon in the courtroom on 6 May 2008 (see paragraph 5 above).

30. The applicant submitted that he fully accepted administrative liability for his conduct, but not criminal liability. That was why he had paid the administrative fine on 5 January 2009 (see paragraph 11 above) instead of applying for the administrative proceedings to be reopened after his final conviction in the criminal proceedings.

2. The Government

31. The Government admitted that the criminal proceedings concerned the same events as the administrative proceedings, and that the sanctions applied to the applicant in both sets of proceedings were criminal in nature. They argued, however, that the administrative proceedings had not yet become final within the meaning of Article 4 of Protocol No. 7 to the Convention when the criminal proceedings were instituted against the applicant. Since the proceedings took place in parallel the present case did not fulfil the res judicata criterion set for the applicability of the ne bis in idem principle, and therefore the application should be rejected as inadmissible rationemateriae.

32. Moreover, the Government contended that the applicant had not exhausted the domestic remedies in so far as he had not requested the reopening of the administrative proceedings after his conviction by the criminal courts had become final. The applicant could have prevented the double jeopardy by appealing against the administrative decision by which he had been fined within the time-limit of one year since the final decision had been delivered by the criminal court. Had the applicant continued the administrative proceedings after his conviction by the criminal courts, the administrative fine would have been cancelled and he would not have been punished twice.

B. The Court’s assessment

33. The Court does not consider it necessary to ascertain whether the first sanction imposed on the applicant (the administrative fine) was criminal in nature and whether the offences for which the applicant was fined and then prosecuted were the same (see the general principles concerning Article 4 of Protocol No. 7 summarised in A and B v. Norway[GC], nos. 24130/11 and 29758/11, §§ 105-34, 15 November 2016, ECHR 2016). Indeed, even assuming that this was the case, the application would in any event be inadmissible for the following reasons.

34. 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 A and B, cited above, § 109).

35. According to the Explanatory Report to Protocol No. 7, which itself refers back to 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’”. This approach is well entrenched in the Court’s case-law (see Sergey Zolotukhin, cited above, § 107; Nikitin v. Russia, no. 50178/99, § 37, ECHR 2004‑VIII; and Horciag v. Romania (dec.), no. 70982/01, 15 March 2005).

36. Decisions against which an ordinary appeal lies are excluded from the scope of the guarantee contained in Article 4 of Protocol No. 7, as long as the time-limit for lodging such an appeal has not expired (see A and B, cited above, § 109, and Boman v. Finland, no. 41604/11, § 37, 17 February 2015).

37. The present case concerns two parallel and separate sets of proceedings, of which the first set of proceedings concerning the administrative fine started in May 2008 when an administrative fine was imposed on the applicant (see paragraph 7 above). The applicant challenged this decision (see paragraph 8 above).

38. These proceedings were suspended by the administrative court of its own motion when criminal proceedings allegedly concerning the same events of 6 May 2008 were initiated in October 2008 (see paragraph 9 above).

39. Accordingly, the Court notes that the administrative proceedings had not yet become final within the meaning of the Convention when the criminal proceedings started in October 2008.

40. The two sets of proceedings were thus pending concurrently until 19 February 2013, when the applicant’s criminal conviction to a prison term became final (see paragraph 18 above).

41. After 19 February 2013 the only way of preventing double jeopardy would have been for the applicant to pursue the administrative proceedings.

However, the applicant did not continue these proceedings and permitted the time‑limit to expire without exhausting the ordinary remedies which could have led to the cancellation of the administrative fine (see paragraph 10 above).

42. The Court recalls that States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system. The obligation to exhaust domestic remedies therefore requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances (see, amongst many others, Vučković and Others v. Serbia [GC], nos. 17153/11 and 29 others, §§ 70-71, 25 March 2014).

43. The Court is of the opinion that by not seeking the cancellation of the administrative fine, the applicant did not offer to the national authorities the opportunity to avoid the continuation of proceedings allegedly criminal in nature and which allegedly concerned the same facts as the proceedings concluded on 19 February 2013 by a “final” criminal conviction. Nothing indicates that in the particular circumstances of the present case, a request for cancellation would have been inadequate or ineffective.

44. It follows that the Government’s objection (see paragraph 32 above) should be upheld and that the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on26 September 2019.

Andrea Tamietti                                  Faris Vehabović
Deputy Registrar                                President

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