The applicant complained that the reopening of criminal proceedings against him, and his subsequent conviction, had breached his rights to defence, equality of arms, not to be tried and punished twice for the same offence, and to an effective remedy, as well as the principle of legal certainty. He relied on Articles 6 and 13 of the Convention and Article 4 of Protocol No. 7 to the Convention.<\/p>\n
FOURTH SECTION Art 4 P7 \u2022 Right not to be tried or punished twice \u2022 Reopening of criminal proceedings and subsequent conviction for road traffic offence, based on same case file without new evidence, differing interpretation of the relevant legislation and reassessments of the case circumstances<\/p>\n STRASBOURG This judgment will become final in the circumstances set out in Article 44 \u00a7 2 of the Convention. It may be subject to editorial revision.<\/p>\n In the case of St\u0103vil\u0103 v. Romania,<\/strong><\/p>\n The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:<\/p>\n Yonko Grozev, President, Having regard to:<\/p>\n the application (no.\u00a023126\/16) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Romanian national, Mr\u00a0Iosif-Amadeus St\u0103vil\u0103 (\u201cthe applicant\u201d), on 18 April 2016;<\/p>\n the decision to give notice of the application to the Romanian Government (\u201cthe Government\u201d);<\/p>\n the parties\u2019 observations;<\/p>\n Having deliberated in private on 25 January 2022,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n INTRODUCTION<\/strong><\/p>\n 1. The applicant complained that the reopening of criminal proceedings against him, and his subsequent conviction, had breached his rights to defence, equality of arms, not to be tried and punished twice for the same offence, and to an effective remedy, as well as the principle of legal certainty. He relied on Articles 6 and 13 of the Convention and Article 4 of Protocol No. 7 to the Convention.<\/p>\n THE FACTS<\/strong><\/p>\n 2. The applicant was born in 1994 and lives in Ar\u0103neag. He was represented by Mr C. Berar, a lawyer practising in Ineu.<\/p>\n 3. The Government were represented by their Agent, Ms O. Ezer, of the Ministry of Foreign Affairs.<\/p>\n 4. The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n I. Criminal proceedings against the applicant<\/strong><\/p>\n 5. On 3 April 2013 the applicant was driving a car on a public road and was stopped by the police for a routine check. When the officers asked to see his driving documents the applicant confessed that he did not possess a driving licence.<\/p>\n 6. On 26 April 2013 the T\u00e2rnova Police Department instituted criminal proceedings against the applicant under Article 86 \u00a7 1 of Government Ordinance no. 195\/2002 on traffic on public roads (\u201cthe Ordinance\u201d \u2013 see paragraph 39 below) for driving a vehicle without possessing a driving licence.<\/p>\n 7. On 4 November 2013 a prosecutor attached to the Ineu Prosecutor\u2019s Office (\u201cthe prosecutor\u2019s office\u201d) discontinued the proceedings instituted against the applicant on the ground that his acts were not serious enough to constitute an offence, given their minimal impact on the social values protected by criminal law and the fact that the applicant had admitted his actions and regretted them, and had cooperated with the investigators. The prosecutor considered that it was necessary to impose an administrative fine of 500 Romanian lei (113 euros (EUR)) on the applicant which was sufficient to re-educate him.<\/p>\n 8. The applicant did not contest that decision before a superior prosecutor or a court and it became final and enforceable within the autonomous Convention meaning of the term (see paragraph 58 below and the reference therein).<\/p>\n II. Reopening of the criminal proceedings against the applicant<\/strong><\/p>\n 9. On 13 August 2014, a superior prosecutor attached to the Timi\u015foara Prosecutor\u2019s Office (\u201cthe superior prosecutor\u2019s office\u201d) set aside the decision of 4 November 2013 (see paragraph 7 above) on the ground that it had been unlawful, and reopened the criminal proceedings against the applicant. He relied on Article 335 \u00a7 1 of the Criminal Code, which had entered into force on 1 February 2014 and had repealed Article 86 \u00a7 1 of the Ordinance (see paragraph 39 below). In addition, the superior prosecutor\u2019s office referred the case to a pre-trial judge to examine whether the decision reopening the proceedings had been lawful and well-founded, as required by Article\u00a0335 \u00a7\u00a04 of the Code of Criminal Procedure (\u201cthe CCP\u201d \u2013 see paragraph 41 below).<\/p>\n 10. Relying on the evidence in the case file, the superior prosecutor\u2019s office held that the applicant\u2019s actions had been serious enough to constitute an offence, given that they had been potentially dangerous for road traffic safety. Imposing only an administrative penalty on the applicant could not have achieved the repressive and preventive-educational aim of a criminal sanction. It had been unlawful to hold that the applicant\u2019s acts had not been serious enough to constitute an offence, because the law did not require a person\u2019s actions to have actual consequences in order for the offence in question to exist, and because such an analysis would have given the impression that the act, that was classified as an offence by the law, was less dangerous. It could not be argued that driving a vehicle without possessing a driving licence had had a minimal impact on the social values protected by criminal law or that it had been obviously unimportant. The applicant\u2019s honesty could not be viewed as a factor working in his favour as long as his honesty was the result of his being caught in the act, and of the clear evidence against him.<\/p>\n 11. By an interlocutory judgment of 24 September 2014, not amenable to appeal, the Ineu District Court \u2013 sitting as a pre-trial judge, in chambers and without the parties being present \u2013 held that the decision of 13\u00a0August 2014 (see paragraphs 9 and 10 above) had been lawful and well-founded, and confirmed the reopening of the proceedings against the applicant. The pre-trial judge also held that it had been correctly established that the circumstances warranting the closure of the investigation had not existed in the case.<\/p>\n 12. Relying on the facts established by the prosecutor\u2019s office, the pre\u2011trial judge held further that the real social danger caused by the offence could not be cancelled out by the fact that the applicant had admitted his actions and regretted them, and had cooperated with the investigators. He had ignored the possible consequences for pedestrian and vehicle traffic in the area and had not hesitated to drive the vehicle without possessing a driving licence.<\/p>\n 13. Given the applicant\u2019s actions, it had been lawful for the superior prosecutor\u2019s office to conclude that driving a vehicle without possessing a driving licence could not have had a minimal impact on the social values protected by criminal law and could not have been unimportant.<\/p>\n 14. On 3 and 4 December 2014 respectively, the superior prosecutor\u2019s office set the criminal action against the applicant in motion and summoned the applicant to appear as a defendant. The applicant received the summons on 5 December 2014.<\/p>\n 15. On 11 December 2014 the superior prosecutor\u2019s office took the applicant\u2019s statement. He confessed to having driven a car without possessing a licence.<\/p>\n 16. On 13 January 2015 the superior prosecutor\u2019s office indicted the applicant and sent his case for trial to the District Court.<\/p>\n 17. On the same date the District Court sent the applicant a copy of the act of indictment and informed him that his case was soon to be examined by a pre-trial judge, who was to decide on whether the court had been lawfully seised of the case and had had jurisdiction to examine it. In addition, the pre\u2011trial judge was to check whether the actions of the investigating authorities, their collecting of evidence, and the evidence adduced to the case file had been lawful. The applicant was invited to submit written applications and objections within twenty days contesting the lawfulness of the evidence adduced to the case file, and the investigating authorities\u2019 actions, and collecting of evidence.<\/p>\n 18. On 28 January 2015 the superior prosecutor\u2019s office asked the Ineu Tax Office to return to the applicant the fine imposed on him on 4\u00a0November 2013 (see paragraph 7 above), if he had paid it.<\/p>\n 19. On 18 February 2015 the Ineu Tax Office informed the superior prosecutor\u2019s office that they could not return the fine to the applicant because he had never paid it.<\/p>\n 20. By an interlocutory judgment of 2 April 2015, not amenable to appeal, the District Court \u2013 sitting as a pre-trial judge, in chambers and with the parties, including the applicant, present \u2013 held that the court had been lawfully seised of the case, that the actions of the investigating authorities and their collecting of evidence had likewise been lawful, and that the applicant\u2019s trial could start. The court noted that the applicant had not submitted any oral or written applications or objections and there had not been any reasons for the court to raise any such objections of its own motion.<\/p>\n III. trial proceedings before the First-instance court<\/strong><\/p>\n 21. At the hearing of 7 May 2015 the District Court took the applicant\u2019s statement and allowed his request to be tried under a summary procedure because he had admitted to having committed the acts he had been charged in connection with. The court noted that the parties had not submitted any applications or objections in the case, and that the applicant had requested to be tried only on the basis of the evidence adduced to the case file at the criminal investigation stage of the proceedings and the documents submitted before the court, in order to receive a reduced sentence. In addition, the court held that the evidence collected at the criminal investigation stage was sufficient to give a decision in the case and adjourned the proceedings to allow the applicant\u2019s legal representative to submit additional documents to the file.<\/p>\n 22. On 23 July 2015 the applicant applied to the District Court to either discontinue the trial because the decision of the superior prosecutor\u2019s office of 13\u00a0August 2014 (see paragraph 9 above) had been unlawful, or to acquit him. He argued that the superior prosecutor\u2019s office had set aside the final decision of 4 November 2013 (see paragraph 7 above) unlawfully by merely reassessing the available evidence, and in the absence of any emergent new or newly discovered facts or evidence, or the discovery of a fundamental procedural defect concerning the proceedings. The approach of the superior prosecutor\u2019s office had breached the principles of legal certainty and ne bis in\u00a0idem and had kept the applicant in a prolonged state of uncertainty. In addition, the superior prosecutor\u2019s office\u2019s power of setting aside a final decision more than nine months after it had been adopted had placed the applicant at a substantial disadvantage and had constituted a breach of the principle of equality of arms.<\/p>\n 23. The applicant argued further that the decision of 13 August 2014 had been confirmed by a pre-trial judge adjudicating in chambers and without his being summoned to state his position on the matter even in writing (see paragraphs 11-13 above). The rules concerning the conduct of the above\u2011mentioned proceedings had been declared unconstitutional by the Constitutional Court (\u201cthe CC\u201d) on 23 June 2015 (see paragraph\u00a042-44 below). Denying him the opportunity to contest the lawfulness of the decision in question of the superior prosecutor\u2019s office at this stage of the proceedings would breach his rights of defence and to an effective remedy because it would ignore a binding decision of the CC.<\/p>\n 24. On 6 August 2015 the District Court convicted the applicant of driving a vehicle without possessing a driving licence and sentenced him to one year and two months\u2019 imprisonment. It held that the legal classification of the charge against him had to be changed because Article 86 \u00a7 1 of the Ordinance (see paragraph 39 below) was the more lenient criminal law in his case. In addition, his acts were serious enough to constitute the offence in question. The impact of his actions on the values protected by the criminal law were not minimal because he had committed the offence during the probation period of a two months\u2019 suspended prison sentence, which had been imposed on him for a previous offence. The applicant\u2019s formal acknowledgement of guilt had not diminished the seriousness of the offence as he had been caught in the act and his guilt was proven.<\/p>\n 25. The court held further that the interlocutory judgment of 24\u00a0September 2014 (see paragraph 11 above) was lawful and valid because the CC decision of June 2015 (see paragraph 42-44 below) had only ex\u00a0nunc effects, and the pre-trial judge had delivered the interlocutory judgment in question prior to the CC decision and in compliance with the procedural rules in force at that time. Moreover, the decision of the prosecutor\u2019s office had not been a final decision which prevented the reopening of the criminal proceedings, as long as the applicant had not proved that he had paid the fine imposed on him, and Article 335 of the CCP (see paragraph 41 below) allowed for the reopening of the criminal investigation.<\/p>\n IV. trial proceedings before the court of appeal<\/strong><\/p>\n 26. The applicant appealed against the judgment and reiterated the arguments raised before the first-instance court (see paragraphs 22-23 above). In addition, he contended that the lower court had misinterpreted the applicable legal provisions, had assessed the circumstances of the case superficially and had ignored some of his arguments.<\/p>\n 27. By a judgment of 22 October 2015 not amenable to ordinary appeal, the Timi\u015foara Court of Appeal (\u201cthe Court of Appeal\u201d) dismissed the applicant\u2019s appeal. It held that unlike the old criminal procedure rules, the new rules which had entered into force in February 2014 complied with the requirements set out in the Court\u2019s case-law and provided for a judicial review of decisions of the public prosecutor\u2019s office to reopen criminal proceedings, to ensure that the proceedings were reopened fairly and within a reasonably short time. The applicant could not therefore argue that his rights guaranteed by Article 6 of the Convention and Article 4 of Protocol No.\u00a07 to the Convention had been breached.<\/p>\n 28. In addition, the proceedings of 24 September 2014 (see paragraph\u00a011 above) could not be in breach of the CC decision of June 2015 (see paragraphs\u00a042-44 below) because that decision had had only ex nunc effects. Furthermore, the fact that the applicant had not been summoned during those proceedings had not affected his rights, as long as he had been able to raise any arguments and objections concerning the criminal investigation stage of the proceedings during the proceedings of 2 April 2015 (see paragraph\u00a020 above). He had failed to do so and the pre-trial judge had confirmed that the court was lawfully seised of the case and that the actions of the investigating authorities and their collecting of evidence were lawful.<\/p>\n 29. The applicant\u2019s arguments concerning the alleged unlawfulness of the decision of the superior prosecutor\u2019s office could no longer be examined by the court because the interlocutory judgments of 24 September 2014 and 2\u00a0April 2015 (see paragraphs 11 and 20 above) were final and had been delivered by independent pre-trial judges in compliance with the guarantees set out in the case-law of the European Court of Human Rights. The applicant had also asked to be tried under a summary procedure and only on the basis of the evidence adduced to the case file at the criminal investigation stage of the proceedings (see paragraph 21 above).<\/p>\n 30. The court held further that the ne bis in idem principle was not applicable in the case as long as the procedural guarantees set out in the case-law of the European Court of Human Rights and in the national law had been observed, and the reopening of the discontinued criminal investigation was possible under domestic law.<\/p>\n 31. Lastly, the court held that the applicant could not be acquitted by relying on arguments similar to those relied on by the first-instance court (see paragraph 24 above).<\/p>\n V. Extraordinary appeal to review proceedings<\/strong><\/p>\n 32. The applicant lodged an extraordinary appeal to review the interlocutory judgment of 24 September 2014 (see paragraph 11 above) and the judgments of 6 August and 22 October 2015 (see paragraphs 24 and 27 above), seeking to have the decision of the superior prosecutor\u2019s office set aside, the criminal trial against him discontinued, and the judgments of 6\u00a0August and 22 October 2015 quashed. He reiterated the arguments raised previously before the first-instance court (see paragraphs 22-23 above).<\/p>\n 33. By a judgment of 26 January 2016 which was amenable to appeal, the District Court rejected the applicant\u2019s extraordinary appeal as inadmissible. It held that the decision of the superior prosecutor\u2019s office had been reviewed by a court on 24 September 2014. The applicant\u2019s rights were not affected by his not having been summoned during those proceedings, because he could have raised any objections concerning the criminal investigation stage of the proceedings and the act of indictment during the proceedings of 2 April 2015 (see paragraph 20 above).<\/p>\n 34. The applicant appealed against the judgment by relying on similar arguments to those raised before the lower court (see paragraph 32 above).<\/p>\n 35. By a final judgment of 21 April 2016 the Court of Appeal dismissed the applicant\u2019s appeal as ill-founded. It held that the applicant\u2019s extraordinary appeal was inadmissible because it had not concerned a judgment on the merits. The CCP article declared unconstitutional by the CC (see paragraphs\u00a042-44 below) was a norm of procedural law and not of substantive law. In addition, the applicant could have contested the lawfulness of the criminal investigation at the pre-trial judge stage of the proceedings.<\/p>\n VI. other relevant information<\/strong><\/p>\n 36. On 6 August 2020 the Prosecutor General informed the Government that, in so far as the domestic courts\u2019 practice was concerned, only pre-trial judge proceedings which reviewed prosecutorial decisions to reopen criminal proceedings, which were still pending on the date when the CC decision of 23\u00a0June 2015 was published (22 September 2015), had been affected by that decision. Pre-trial judge proceedings which had ended by the time the CC decision was published were not affected by it, nor did it have any impact on them. The latter proceedings were final and could no longer be reviewed.<\/p>\n RELEVANT LEGAL FRAMEWORK AND PRACTICE<\/p>\n I. the constitution<\/strong><\/p>\n 37. The relevant constitutional provisions concerning the application of international human rights treaties on a national level, the right of access to court and the right of defence, use of appeals, and the effects of CC decisions declaring domestic legal provisions to be unconstitutional are set out in Mihail Mih\u0103ilescu v. Romania (no. 3795\/15, \u00a7 21, 12 January 2021).<\/p>\n II. the criminal code and the government ordinance<\/strong><\/p>\n 38. The relevant provisions of the former Criminal Code, which was in force until 1 February 2014, concerning the rules applicable to acts considered not serious enough to constitute a criminal offence are set out in Mihalache v. Romania [GC], no. 54012\/10, \u00a7 33, 8 July 2019.<\/p>\n 39. Article 86 \u00a7 1 of the Ordinance, which was in force until 1\u00a0February 2014, and Article 335 \u00a7 1 of the Criminal Code, which has been in force since 1\u00a0February 2014, provide that driving a motor vehicle on a public road without possessing a driving licence is punishable by imprisonment for a period of between one to five years.<\/p>\n III. CODE of Criminal Procedure<\/strong><\/p>\n 40. The relevant provisions of the former CCP, which was in force until 1\u00a0February 2014, concerning prosecutorial decisions discontinuing proceedings on the ground that the investigated act had lacked sufficient seriousness to constitute an offence and imposing administrative penalties are set out in Mihalache, cited above, \u00a7 34).<\/p>\n 41. Article 335 of the CCP, as in force at the relevant time, reads as follows:<\/p>\n Resumption in the situation of reopening the criminal investigation<\/strong><\/p>\n \u201c(1) The prosecutor who is hierarchically superior to the one who took the decision [to close the investigation] shall set aside that decision and order that the criminal investigation be reopened if he or she later notes that the circumstances warranting the closure [of the investigation] did not exist …<\/p>\n (2) The prosecutor shall set aside the decision and order that the criminal investigation be reopened when new facts or circumstances have emerged which show that the circumstances warranting the closure [of the investigation] no longer exist.<\/p>\n (3) The prosecutor shall set aside the decision and order that the criminal investigation be reopened when he or she notes that the suspect or the defendant has in bad faith not complied with the obligations imposed on him under Article 318 \u00a7 3.<\/p>\n (4) The reopening of the criminal investigation shall be null and void if it is not submitted for confirmation by a pre-trial judge within a maximum of three days. The pre-trial judge shall decide whether the decision ordering the reopening of the criminal investigation was lawful and well-founded by way of an interlocutory judgment delivered in chambers without the prosecutor and the suspect or the defendant, as the case may be, being present.<\/p>\n …\u201d<\/p>\n IV. decision OF the constitutional court published in the official gazette no. 708 of 22 September 2015<\/strong><\/p>\n 42. On 23 June 2015, following an objection raised by the Ombudsman on 3 March 2015, the CC held by a majority that Article 335 \u00a7 4 of the CCP was unconstitutional in so far as the pre-trial judge could decide on the reopening of the criminal proceedings in a case without the prosecutor, and the suspect or the defendant, participating in the proceedings. The court held that unlike the old CCP in force before February 2014, the new CCP required a public prosecutor\u2019s decision reopening the proceedings in a criminal case to be reviewed by a court. Thus, the provisions of the CCP were reconciled with the case-law of the European Court of Human Rights, which required a judicial review on whether the reopening of the proceedings was fair and carried out within a reasonable time period after the proceedings had been discontinued.<\/p>\n 43. In reviewing the decision reopening the proceedings, a pre-trial judge had to decide whether that decision was lawful and well-founded. Whereas confirming the lawfulness of the decision involved an examination of whether one of the conditions for reopening the proceedings set out in Article\u00a0335 of the CCP had been met in the case, checking whether the decision was well\u2011founded, however, involved a review of the facts attracting the applicability of the above conditions. In addition, the pre-trial judge\u2019s confirmation of the decision reopening the proceedings amounted in effect to the formulation of a criminal charge within the meaning of the Convention against the person concerned by it. The fact that, like the prosecutor, the suspect or the defendant were therefore not summoned to participate in such proceeding and raise their arguments directly before the pre-trial judge, breached their constitutional rights to a fair trial and defence.<\/p>\n 44. The CC held further that the pre-trial judge could not assess the factual circumstances that he or she was called to examine during such proceedings in a formalistic and unilateral manner during non-contentious proceedings, because the assessment in question required an effective and active participation of the parties, and sometimes that their statements were heard by the court.<\/p>\n 45. In a dissenting opinion some of the CC judges expressed the view that the relevant part of Article 335 \u00a7 4 of the CCP was constitutional. They considered that a pre-trial judge did not touch on the merits of a case or establish a suspect\u2019s or defendant\u2019s guilt when reviewing the decision of the public prosecutor\u2019s office to reopen proceedings. In addition, at that stage of the proceedings the criminal proceedings were not reopened. As a result, according to the case-law of the European Court of Human Rights, the procedural guarantees set out under the criminal limb of Article 6 of the Convention were not applicable. Furthermore, once the criminal investigation in the case was reopened, the suspect or the defendant could enjoy all the guarantees of a fair trial at the subsequent stages of the proceedings. In the case of an indictment and of a trial, the defendant\u2019s case was examined first by a pre-trial judge and then by a trial court during proceedings which complied with all the requirements of a fair trial.<\/p>\n THE LAW<\/strong><\/p>\n I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION<\/p>\n 46. The applicant complained that the reopening of the criminal proceedings and his conviction had breached his rights of defence and equality of arms because (i) the lawfulness of the decision reopening the proceedings had been examined by a pre-trial judge in his absence and without his being summoned to participate in the proceedings, and (ii) the trial courts had refused to examine his arguments concerning the unlawfulness of the decision in question even though the CC had acknowledged the unfairness of such pre-trial judge proceedings and had declared them unconstitutional before his trial had ended. The applicant complained further that the decision reopening the proceedings had breached the principle of legal certainty because it had been taken nine months after the proceedings against him had been discontinued, in the absence of any new facts or evidence having emerged in the case.<\/p>\n The applicant relied on Article 6 of the Convention, which, in so far as relevant, reads as follows:<\/p>\n \u201c1. In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal …<\/p>\n …<\/p>\n 3. Everyone charged with a criminal offence has the following minimum rights:<\/p>\n …<\/p>\n (c) to defend himself in person or through legal assistance of his own choosing …<\/p>\n …\u201d<\/p>\n A. The parties\u2019 submissions<\/strong><\/p>\n 1. The Government<\/em><\/p>\n 47. The Government acknowledged that the proceedings of 24\u00a0September 2014 (see paragraph 11 above) had taken place in chambers and without the applicant being present. However, they argued that the applicant had had the opportunity to challenge the lawfulness of his indictment, the evidence adduced to the case file, and the investigating authorities\u2019 actions and collecting of evidence during the proceedings of 2\u00a0April 2015 (see paragraph\u00a020 above). He had failed to do so even though during these proceedings he had been given the opportunity to raise objections both orally and in writing and had been present before the pre\u2011trial judge.<\/p>\n 48. The applicant had willingly, unequivocally, and being fully aware of the consequences, agreed to his case being tried under a summary procedure (see paragraph 21 above) and had therefore implicitly waived some of his procedural rights. His decision had been accompanied by sufficient procedural safeguards and had involved an acceptance of all the evidence adduced to the case file, including the decision of the superior prosecutor\u2019s office and the interlocutory judgment of 24 September 2014. As long as he had not taken advantage of all the above-mentioned safeguards (see paragraph 47 above) he could not argue that the principle of legal certainty had been breached in his case.<\/p>\n 49. The Government underlined that the authorities had been allowed to reopen proceedings in circumstances where a fundamental defect had been identified in the previous proceedings which could have affected the outcome of the case. Under the relevant domestic rules, a CC decision applied only ex\u00a0nunc and gained binding force only from the time it was published. Given that the interlocutory judgment of 24 September 2014 was delivered before the publication of the CC decision of 23 June 2015 (see paragraph 42 above), the national courts, including the trial courts, had to apply the law on the effects of CC judgments. The courts had examined the applicant\u2019s arguments concerning the alleged unlawfulness of the decision reopening the proceedings following the CC\u2019s decision, and had dismissed them by providing reasons.<\/p>\n 2. The applicant<\/em><\/p>\n 50. The applicant contested the Government\u2019s submission that he could have challenged the decision reopening the proceedings in his case on 2\u00a0April 2015. In his opinion, challenging the fairness of the decision of the superior prosecutor\u2019s office had fallen outside the scope of those proceedings. Moreover, the CC decision of 23 June had been delivered after the proceeding of 2 April 2015 had ended. There would therefore have been no reason for a pre-trial judge to re-examine the decision of the superior prosecutor\u2019s office at that stage of the proceedings as long as it had been confirmed by the final interlocutory judgment of 24 September 2014 (see paragraph 11 above). The fact that the courts had refused to review the lawfulness of the decision reopening the proceedings even after the CC had delivered its decision had been sufficient proof that they would also have done the same before the CC delivered its decision.<\/p>\n 51. The applicant acknowledged that the CC decision gained binding force only from the moment it was published and applied only ex\u00a0nunc. However, the proceedings in his case were still pending before the Court of Appeal when the CC decision was published, on 22 September 2015. The courts were therefore obliged to give effect to this decision.<\/p>\n 52. The fact that he had agreed to his case being tried under a summary procedure and had admitted to having committed the offence could not be a valid argument justifying the breach of his right to a fair trial by reopening the proceedings against him. In addition, his above-mentioned decisions could not have prevented the courts from acquitting him.<\/p>\n B. The Court\u2019s assessment<\/strong><\/p>\n 53. The Court notes at the outset that the applicant\u2019s complaints are twofold. On the one hand, they concern the alleged breach of his rights of defence, equality of arms and legal certainty during the pre-trial judge proceedings which reviewed the lawfulness of the decision of the superior prosecutor\u2019s office to reopen the criminal proceedings against him (see paragraph 11 above). On the other hand, they concern the alleged breach of his rights of defence and equality of arms during the trial proceedings (see paragraphs 24 and 27 above). The Court will therefore proceed to examine first the applicant\u2019s former complaint and afterwards the latter.<\/p>\n 54. The Court notes further that the Government\u2019s arguments suggest that the applicant has not exhausted the available domestic remedies in respect of his complaints because he failed to raise them before the pre\u2011trial judge who reviewed the lawfulness of his indictment on 2 April 2015 (see paragraphs\u00a047-48 above). It will not, however, exclusively discuss the Government\u2019s arguments concerning the applicant\u2019s alleged failure to exhaust the available domestic remedies because, even assuming that those arguments would be dismissed, the applicant\u2019s complaints are inadmissible for the following reasons.<\/p>\n 1. Alleged breach of the applicant\u2019s rights of defence, equality of arms and legal certainty during the pre-trial judge proceedings which reviewed the decision to reopen the proceedings<\/em><\/p>\n (a) General principles<\/p>\n 55. The Court reiterates that the right to a fair trial under Article 6 \u00a7 1 is an unqualified right. However, what constitutes a fair trial cannot be the subject of a single unvarying rule but must depend on the circumstances of the particular case. The Court\u2019s primary concern under Article 6 \u00a7 1 is to evaluate the overall fairness of the criminal proceedings. The Court reiterates that the guarantees of Article\u00a06 are applicable from the moment that a \u201ccriminal charge\u201d exists within the meaning of this Court\u2019s case-law and may therefore be relevant during pre-trial proceedings if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with them. The investigation stage may be of particular importance for the preparation of the criminal proceedings. For instance, the evidence obtained during this stage often determines the framework in which the offence charged will be considered at the trial. Nevertheless, the manner in which Article 6 is to be applied during the investigation stage depends on the special features of the proceedings involved and on the circumstances of the case (see Ibrahim and Others v.\u00a0the\u00a0United Kingdom [GC], nos.\u00a050541\/08, 50571\/08, 50573\/08 and\u00a040351\/09, \u00a7\u00a7 250-53, 13 September 2016, with further references).<\/p>\n 56. As far as Article 6 of the Convention is concerned, the Court reiterates further that the quashing of a final judgment is an instantaneous act which does not create a continuing situation, even if, as in the instant case, it entails the reopening of the proceedings. Furthermore, in accordance with Article\u00a035 \u00a7\u00a01 of the Convention, it may only examine complaints in respect of which domestic remedies have been exhausted and which have been submitted within a period of six months from the date of the \u201cfinal\u201d domestic decision. If there is no adequate remedy against a particular act which is alleged to be in breach of the Convention, the date when that act takes place is taken to be \u201cfinal\u201d for the purposes of the six-month rule (see, for example, Topallaj v.\u00a0Albania, no. 32913\/03, \u00a7 103, 21 April 2016, with further references).<\/p>\n (b) Application of those principles in the instant case<\/p>\n 57. Turning to the applicant\u2019s case, the Court notes that according to the Government the decision of the prosecutor\u2019s office discontinuing the proceedings against the applicant was not a final decision within the meaning of the Convention because the applicant did not ever pay the fine imposed on him (see paragraph 85 below).<\/p>\n 58. The Court observes, however, that it has already established that a decision of a prosecutor\u2019s 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\u2019s 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 (see Mihalache, cited above, \u00a7\u00a7 13, 100-01 and 126).<\/p>\n 59. 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 (see paragraph\u00a08 above). 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 (see paragraph\u00a019 above) reinstated the allowed time-limit for the above-mentioned remedy.<\/p>\n 60. The Court therefore sees no reason to doubt that the decision of the prosecutor\u2019s office of 4 November 2013 was final within the meaning of the Convention by the time when, on 13 August 2014, the superior prosecutor\u2019s office exercised its discretion to reopen the criminal proceedings against the applicant (see paragraph 9 above).<\/p>\n 61. In these circumstances, the Court considers that it was the very act of the pre-trial judge confirming on 24\u00a0September 2014 (see paragraph\u00a011 above) the decision of the superior prosecutor\u2019s office of 13 August 2014 which quashed the decision of 4 November 2013, that triggered the start of the six\u2011month time-limit in respect of the applicant\u2019s 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\u2011trial judge\u2019s interlocutory judgment and its consequences by the time the superior prosecutor\u2019s office took his statement on 11 December 2014 (see paragraph 15 above). Nonetheless, the applicant lodged his application before the Court on 18\u00a0April 2016 \u2013 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.<\/p>\n 62. 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\u00a0August 2014 and the final interlocutory judgment of 24 September 2014 delivered in his case (see paragraph 50 above). Therefore, raising his complaint before the domestic courts would have not offered him any reasonable prospect of success.<\/p>\n 63. It is true that the Government and the domestic courts seem to disagree with the applicant\u2019s 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 (see paragraphs 28-29, 33, 35, and\u00a047\u201148 above).<\/p>\n 64. Nevertheless, the Court is not persuaded that it can disagree with the applicant\u2019s view. It observes in this regard that the Government have not submitted any concrete examples of domestic case-law, especially from before the CC\u2019s 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\u2019s opinion, expressed years after the proceedings in the applicant\u2019s 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 (see paragraph 36 above).<\/p>\n 65. In this context, the Court finds it difficult to accept the applicant\u2019s 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.<\/p>\n 66. 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 (see paragraph\u00a042 above), 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.<\/p>\n 67. 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\u2019s 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\u2019s decisions had only ex nunc effects (see paragraphs 25 and 28 above).<\/p>\n 68. 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\u2019s office to reopen the proceedings against him.<\/p>\n 69. It follows that this part of the application was lodged out of time and must be rejected, in accordance with Article 35 \u00a7\u00a7 1 and 4 of the Convention.<\/p>\n 2. Alleged breach of the applicant\u2019s rights of defence and equality of arms during the trial proceedings<\/em><\/p>\n 70. 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 (see paragraph 46 above). 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 (see paragraphs 22-35 above).<\/p>\n 71. The Court considers therefore that the applicant\u2019s 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.<\/p>\n 72. It transpires from the Court\u2019s 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 \u201cdenial of justice\u201d (see Moreira Ferreira v. Portugal (no.\u00a02) [GC], no. 19867\/12, \u00a7\u00a085, 11 July 2017).<\/p>\n 73. Given the evidence before it, including the provisions of the relevant domestic law applicable in the case and its findings above (see paragraphs\u00a057\u201167 above), 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\u2019s case.<\/p>\n 74. It follows that this part of the application is manifestly ill-founded and must be rejected, pursuant to Article 35 \u00a7\u00a7 3 and 4 of the Convention.<\/p>\n II. ALLEGED VIOLATION OF ARTICLE 13 of THE CONVENTION<\/p>\n 75. The applicant complained that the court proceedings, including the extraordinary appeal to review proceedings brought by him against his final conviction, did not provide him with an effective remedy for the alleged breaches of his Convention rights, in breach of Article 13 of the Convention, which reads as follows:<\/p>\n \u201cEveryone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.\u201d<\/p>\n A. The parties\u2019 submissions<\/strong><\/p>\n 1. The Government<\/em><\/p>\n 76. The Government argued that Article 13 was inapplicable in circumstances where the alleged violation of the Convention had taken place in the context of judicial proceedings.<\/p>\n 77. In any event, the applicant had had the benefit of effective domestic remedies to put forward his complaints about the alleged unlawfulness of the decision of the superior prosecutor\u2019s office of 13 August 2014 and the effects of the CC decision on the proceedings against him. His arguments had been reviewed at the trial and extraordinary appeal stages of the proceedings. The arguments could also have been reviewed on 2\u00a0April 2015, but the applicant had failed to raise them. The fact that the courts had dismissed his arguments by providing pertinent reasons could not render the remedies available to the applicant ineffective.<\/p>\n 2. The applicant<\/em><\/p>\n 78. The applicant argued that the courts had failed to provide him with an effective remedy which allowed him to have the lawfulness of the proceedings reopening his case reviewed in the light of the CC decision. According to the domestic legal framework, a pre-trial judge\u2019s interlocutory judgment could not be reviewed by way of extraordinary appeal to review proceedings. In addition, the trial courts had dismissed his arguments concerning the unlawfulness of the decision of the superior prosecutor\u2019s office of 13 August 2014 by simply relying on the res judicata effect of the interlocutory judgment of 24 September 2014.<\/p>\n B. The Court\u2019s assessment<\/strong><\/p>\n 79. The Court reiterates that Article 13 requires a remedy in domestic law only in respect of grievances which can be regarded as \u201carguable\u201d in terms of the Convention (see Boyle and Rice v. the United Kingdom, 27\u00a0April 1988, \u00a7\u00a052, Series A no. 131). In addition, the role of Article\u00a06 in relation to Article\u00a013 is that of lex specialis, the requirements of Article\u00a013 being absorbed by the more stringent requirements of Article 6 (see, for example, Kuznetsov and Others v. Russia, no. 184\/02, \u00a7 87, 11 January 2007, and Efendiyeva v. Azerbaijan, no. 31556\/03, \u00a7 59, 25 October 2007).<\/p>\n 80. Given that the applicant\u2019s complaints under Article 6 of the Convention were declared inadmissible and therefore his grievances in this connection cannot be regarded as \u201carguable\u201d 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\u2019s complaint under Article 13 is manifestly ill\u2011founded within the meaning of Article 35 \u00a7 3 (a) of the Convention and must be rejected pursuant to Article 35 \u00a7 4.<\/p>\n III. alleged violation of article 4 of protocol no. 7 to the convention<\/strong><\/p>\n 81. The applicant complained that the decision of the superior prosecutor\u2019s office to reopen the proceedings had breached his rights guaranteed by Article 4 of Protocol No. 7 to the Convention, which, in so far as relevant, reads as follows:<\/p>\n \u201c1. 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.<\/p>\n 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.<\/p>\n …\u201d<\/p>\n A. Admissibility<\/strong><\/p>\n 82. The Court notes that this part of the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article\u00a035 of the Convention. It must therefore be declared admissible.<\/p>\n B. Merits<\/strong><\/p>\n 1. The parties\u2019 submissions<\/em><\/p>\n (a) The applicant<\/p>\n 83. The applicant argued that even though he had not actually paid the fine imposed on him in November 2013 (see paragraphs 7 and 19 above), he had been prosecuted twice for the same offence. The circumstances of his case were similar to other cases where Court had found a violation of Article\u00a04 of Protocol No. 7 to the Convention.<\/p>\n 84. His failure to pay the fine had not played any role in the decision of the superior prosecutor\u2019s office to reopen the proceedings.<\/p>\n (b) The Government<\/p>\n 85. The Government acknowledged that the proceedings against the applicant, including the fine imposed on him, had been criminal in nature, had entailed the same facts, and had resulted in convictions. Nevertheless, the decision of 4 November 2013 (see paragraph 7 above) had not been final within the meaning of the Convention because the applicant had not ever paid the fine imposed on him.<\/p>\n 86. In any event, the superior prosecutor\u2019s office had resumed the criminal proceedings against the applicant because of a fundamental defect in the previous proceedings. In particular, the decision of 4 November 2013 had been unlawful because it had wrongly applied the relevant criminal procedure rules. This was even more so considering that the applicant had reoffended during the probation period for a two months\u2019 suspended prison sentence that had been imposed on him for another offence (see paragraph\u00a024 above), and could therefore no longer have benefitted from another act of clemency.<\/p>\n 87. The superior prosecutor\u2019s office had not relied on the above reason to reopen the proceedings against the applicant. Nevertheless, the courts had taken it into account in their assessment of the case.<\/p>\n 2. The Court\u2019s assessment<\/em><\/p>\n 88. The Court reiterates the principles set out in its case-law concerning the duplication of criminal proceedings (see Mihalache, cited above, \u00a7\u00a7\u00a047\u201149).<\/p>\n 89. In the instant case, the Court notes that the Government have not contested that the proceedings leading to the decision of 4 November 2013 (see paragraph 7 above) and those leading to the final judgment of 22\u00a0October 2015 (see paragraph 27 above) were criminal in nature for the purpose of Article 4 of Protocol No.\u00a07. Moreover, they have not contested that those two decisions concerned the same facts (see paragraph 85 above). The Court sees no reason to hold otherwise.<\/p>\n 90. It therefore remains to be determined whether there was a duplication of proceedings in the applicant\u2019s case.<\/p>\n 91. The Court notes that the Government have also acknowledged that the decision of the prosecutor\u2019s office discontinuing the proceedings against the applicant entailed a \u201cconviction\u201d within the substantive meaning of the term (see paragraph 85 above). The Court does not find any reasons to hold otherwise.<\/p>\n 92. Moreover, despite the Government\u2019s 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\u2019s office exercised its discretion to reopen the criminal proceedings against the applicant (see paragraph 58 above).<\/p>\n 93. According to the Court\u2019s case-law, a decision by a superior prosecutor\u2019s 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 \u00a7 2 of Protocol No. 7 justifying a possible reopening of the proceedings (see Mihalache, cited above, \u00a7\u00a7 135-37).<\/p>\n 94. In the present case, the superior prosecutor\u2019s office and the pre-trial judge made their decisions on the basis of the same case file as the prosecutor\u2019s 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.<\/p>\n 95. 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\u2019s office\u2019s and the pre-trial judge\u2019s 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 \u201cminimal impact\u201d and punishable by a simple \u201cadministrative\u201d fine (see paragraphs 9-13 above).<\/p>\n 96. 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\u2019 suspended prison sentence imposed on him for a previous offence (see paragraph\u00a086 above). The Court notes, however, that the Government have admitted that this ground was not relied on by the superior prosecutor\u2019s office or the pre-trial judge in their decisions to reopen the proceedings against the applicant (see paragraph 87 above). 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.<\/p>\n 97. Even assuming that the Court could agree that the reopening of the proceedings against the applicant was prompted by errors made by the prosecutor\u2019s office when assessing the particular circumstances of the applicant\u2019s case in the light of the applicable law, it reiterates that the mistakes or errors of the\u00a0State 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\u00a0State and errors must not be remedied\u00a0at the expense of the individual concerned (see Radchikov v.\u00a0Russia, no. 65582\/01, \u00a7 50, 24 May 2007).<\/p>\n 98. The mere consideration that the investigation in the applicant\u2019s 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\u2019 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., \u00a7 48).<\/p>\n 99. The Court therefore cannot agree with the Government\u2019s allegation that the reopening of the criminal proceedings against the applicant was justified by a fundamental defect in the previous proceedings (see paragraph\u00a086 above).<\/p>\n 100. Having regard to the foregoing, the Court takes the view that the reasons given by the superior prosecutor\u2019s office and the pre-trial judge to justify the reopening of the proceedings on the basis of the decision of 13\u00a0August 2014 are at variance with the strict conditions imposed by Article\u00a04 \u00a7\u00a02 of Protocol No.\u00a07. The reopening of the proceedings in the instant case was therefore not justified by the exception set out in that provision.<\/p>\n 101. 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\u00a0September 2014. Given that none of the situations permitting the combination (see A\u00a0and\u00a0B v. Norway [GC], nos. 24130\/11 and 29758\/11, \u00a7\u00a7\u00a0112-34, 15\u00a0November 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\u00a0idem principle.<\/p>\n 102. There has accordingly been a violation of Article 4 of Protocol No.\u00a07 to the Convention.<\/p>\n IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 103. Article\u00a041 of the Convention provides:<\/p>\n \u201cIf 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.\u201d<\/p>\n A. Damage<\/strong><\/p>\n 104. The applicant claimed EUR 50,000 in respect of non-pecuniary damage for the suffering experienced because of his second conviction and imprisonment.<\/p>\n 105. The Government argued that the applicant\u2019s claim for non\u2011pecuniary damage was excessive and that the mere finding of a violation would amount to sufficient just satisfaction.<\/p>\n 106. The Court considers 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 Mihalache, cited above, \u00a7\u00a0148). Making its assessment on an equitable basis, the Court awards the applicant EUR 5,000 in respect of non\u2011pecuniary damage.<\/p>\n B. Costs and expenses<\/strong><\/p>\n 107. The applicant also claimed EUR 408 for the costs and expenses incurred before the Court. He submitted a receipt attesting to the payment of this amount to his lawyer.<\/p>\n 108. The Government argued that the applicant\u2019s claim was not fully substantiated and it was therefore doubtful that this expense was actually, necessarily and reasonably incurred.<\/p>\n 109. According to the Court\u2019s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession, the violation found and the above criteria, the Court considers it reasonable to award the applicant the full amount claimed by him covering the costs and expenses incurred before the Court.<\/p>\n C. Default interest<\/strong><\/p>\n 110. 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.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1. Declares the complaint under Article 4 of Protocol No. 7 to the Convention admissible and the remainder of the application inadmissible;<\/p>\n 2. Holds that there has been a violation of Article 4 of Protocol No. 7 to the Convention;<\/p>\n 3. Holds<\/p>\n (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article\u00a044 \u00a7\u00a02 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:<\/p>\n (i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/p>\n (ii) EUR 408 (four hundred and eight euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;<\/p>\n (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;<\/p>\n 4. Dismisses the remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 1 March 2022, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Ilse Freiwirth \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0Yonko Grozev ___________<\/p>\n In accordance with Article\u00a045 \u00a7\u00a02 of the Convention and Rule\u00a074 \u00a7\u00a02 of the Rules of Court, the separate opinion of Judge Grozev is annexed to this judgment.<\/p>\n YGR CONCURRING OPINION OF JUDGE GROZEV<\/strong><\/p>\n While I am in full agreement with the conclusion that the two complaints under Article 6 in the present case are inadmissible, I have significant reservations as to the grounds on which the first complaint under Article\u00a06 was declared inadmissible by the majority. And as the issue goes to the basic principles of interpreting and applying Article 6 of the Convention, it merits a separate opinion.<\/p>\n This part of the applicant\u2019s complaint is about the decision of the pre\u2011trial judge to reopen the criminal proceedings, and the alleged violation of his rights due to a breach of his rights of defence, equality of arms and legal certainty in the proceedings before the pre-trial judge. The majority decided to treat the proceedings for reopening before the pre-trial judge as separate proceedings, triggering the full Article 6 guarantees. And as the application was lodged with the Court more than six months after the decision of the pre\u2011trial judge, it was declared inadmissible by the majority as outside the six\u2011month time-limit.<\/p>\n My disagreement is on the point whether Article 6 could be applied separately to different stages of domestic criminal proceedings, in this case the decision of the pre-trial judge to pursue criminal charges against the applicant before the domestic courts. The Court has persistently held that this is not the case, as the primary purpose of Article 6 of the Convention, as far as criminal proceedings are concerned, is to ensure a fair trial by a \u201ctribunal\u201d competent to determine \u201cany criminal charge\u201d. The final determination of a criminal charge has consistently been interpreted as being the final \u2013 in accordance with domestic law \u2013 decision declaring an accused guilty or not guilty and the final sentence imposed on him or her. As a result, the Court has refused to apply the Article 6 guarantees to any separate proceedings that might exist under domestic law, carrying out instead an overall analysis of the fairness of the criminal proceedings. To cite one of many authorities, the Court\u2019s primary concern is to evaluate the overall fairness of the criminal proceedings. Compliance with the requirements of a fair trial must be examined in each case having regard to the development of the proceedings as a whole, and not on the basis of an isolated consideration of one particular aspect or one particular incident (see Ibrahim and Others v.\u00a0the United Kingdom [GC], nos. 50541\/08 and 3 others, \u00a7\u00a7 250-51, 13 September 2016). The reason for this approach is clearly to allow the domestic courts to address and remedy any shortcomings before the matter comes before the Court.<\/p>\n This does not mean that events in such separate proceedings, and particularly at the pre-trial stage, will have no relevance for the overall fairness of the criminal proceedings. The Court has recognised that Article\u00a06 applies to pre-trial proceedings \u2013 especially rights guaranteed under Article\u00a06 \u00a7\u00a03 \u2013 and that \u201cit may be relevant before a case is sent for trial if and in so far as the fairness of the trial is liable to be seriously prejudiced by an initial failure to comply with its provisions\u201d (see Dvorski v. Croatia [GC], no.\u00a025703\/11, \u00a7 76, ECHR 2015). It has expressly held that it cannot be ruled out that a specific factor may be so decisive as to enable the fairness of the trial to be assessed at an earlier stage in the proceedings. In this connection, where a procedural defect has been identified, it falls to the domestic courts in the first place to carry out the assessment as to whether that procedural shortcoming has been remedied in the course of the ensuing proceedings, the lack of an assessment to that effect in itself being prima facie incompatible with the requirements of a fair trial in accordance with Article 6 of the Convention (see Simeonovi v. Bulgaria [GC], no. 21980\/04, \u00a7 113, 12\u00a0May 2017, and Mehmet Zeki \u00c7elebi v. Turkey, no. 27582\/07, \u00a7 51, 28\u00a0January 2020). Still, the Court has consistently refused to review events at the pre\u2011trial stage separately, and has consistently reviewed them taking into account the subsequent trial stage. In doing so, the Court has specifically looked into whether the alleged breaches at the pre-trial stage prejudiced the fairness of the trial and whether the trial and appeal courts took steps to overcome such prejudice.<\/p>\n It might well be that domestic law provides enhanced procedural guarantees at certain steps of the domestic proceedings, including adversarial proceedings and the possibility of an appeal to a higher court, as the Romanian Constitutional Court has held in relation to proceedings before the pre\u2011trial judge (see paragraphs 42-44 of the judgment). This, however, remains a domestic decision on how to best organise criminal proceedings in balancing the numerous rights and interests involved in order to achieve an efficient and fair judicial process. But it is not something required by the Convention or requiring a separate analysis by the Court as to Article\u00a06 compliance.<\/p>\n Turning to the facts of the present case, the applicant complained that \u201cthe reopening of the criminal proceedings and his conviction had breached his rights of defence and equality of arms … because the lawfulness of the decision reopening the proceedings had been examined by a pre-trial judge in his absence and without his being summoned\u201d (see paragraph 46 of the judgment). Taking the standard approach of the Court, the question that should have been answered first is whether this alleged breach seriously prejudiced the applicant\u2019s subsequent trial. The answer to this question for me is clearly no. As under the Convention there is no right to judicial review of a decision to pursue criminal charges before the courts, and the legal arguments raised by the applicant were reviewed by the domestic courts and his ability to mount an effective defence was not hampered (see paragraphs\u00a028-29 of the judgment), I see nothing to disagree with in this analysis by the domestic courts, As a result, this complaint is manifestly ill\u2011founded, and inadmissible on this ground.<\/p>\n","protected":false},"excerpt":{"rendered":" The applicant complained that the reopening of criminal proceedings against him, and his subsequent conviction, had breached his rights to defence, equality of arms, not to be tried and punished twice for the same offence, and to an effective remedy,…<\/p>\n
\nCASE OF ST\u0102VIL\u0102 v. ROMANIA<\/strong>
\n(Application no. 23126\/16)<\/em>
\nJUDGMENT<\/p>\n
\n1 March 2022<\/p>\n
\nFaris Vehabovi\u0107,
\nIulia Antoanella Motoc,
\nGabriele Kucsko-Stadlmayer,
\nPere Pastor Vilanova,
\nJolien Schukking,
\nAna Maria Guerra Martins, judges,
\nand Ilse Freiwirth, Deputy Section Registrar,<\/p>\n
\nDeputy Registrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0President<\/p>\n
\nIF<\/p>\n