{"id":21230,"date":"2023-10-03T08:46:28","date_gmt":"2023-10-03T08:46:28","guid":{"rendered":"https:\/\/laweuro.com\/?p=21230"},"modified":"2023-10-03T08:46:36","modified_gmt":"2023-10-03T08:46:36","slug":"case-of-vasile-sorin-marin-v-romania-17412-16","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=21230","title":{"rendered":"CASE OF VASILE SORIN MARIN v. ROMANIA – 17412\/16"},"content":{"rendered":"

The case concerns the applicant\u2019s allegation that he was punished twice, firstly with a fine and subsequently with a criminal conviction, for the same act, in breach of his right not to be tried and punished twice for the same offence under Article 4 of Protocol No. 7 to the Convention. Having regard to those factors, the Court finds that the two sets of proceedings were not combined in an integrated manner such as to form a coherent whole, thus falling foul of the \u201cbis\u201d criterion under Article 4 of Protocol No. 7. There has accordingly been a violation of Article 4 of Protocol No. 7 to the Convention.<\/span><\/p>\n

\n

FOURTH SECTION
\nCASE OF VASILE SORIN MARIN v. ROMANIA<\/strong>
\n(Application no. 17412\/16)<\/em>
\nJUDGMENT<\/p>\n

Art 4 P7 \u2022 Right not to be tried or punished twice \u2022 Duplication of proceedings, through administrative fine and criminal proceedings for socially offensive conduct that disturbed public order, not combined in an integrated manner such as to form a coherent whole and not proportionate \u2022 Administrative fine criminal in nature, given elements of punishment and deterrence \u2022 Facts constituting the two offences substantially the same \u2022 Administrative fine constituted a \u201cfinal conviction\u201d \u2022 Proceedings sufficiently connected in time \u2022 Duality of proceedings did not pursue complementary purposes or constitute a foreseeable consequence for the same impugned conduct<\/p>\n

STRASBOURG
\n3 October 2023<\/p>\n

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 Vasile Sorin Marin v. Romania,<\/strong><\/p>\n

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
\nGabriele Kucsko-Stadlmayer, President,
\nTim Eicke,
\nFaris Vehabovi\u0107,
\nArmen Harutyunyan,
\nAnja Seibert-Fohr,
\nAna Maria Guerra Martins,
\nSebastian R\u0103dule\u0163u, judges,
\nand Andrea Tamietti, Section Registrar,
\nHaving regard to:
\nthe application (no.\u00a017412\/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\u00a0Vasile Sorin Marin (\u201cthe applicant\u201d), on 23 March 2016;
\nthe decision to give notice to the Romanian Government (\u201cthe Government\u201d) of the complaint concerning Article 4 of Protocol No. 7 to the Convention;
\nthe parties\u2019 observations;<\/p>\n

Having deliberated in private on 12 September 2023,<\/p>\n

Delivers the following judgment, which was adopted on that date:<\/p>\n

INTRODUCTION<\/strong><\/p>\n

1. The case concerns the applicant\u2019s allegation that he was punished twice, firstly with a fine and subsequently with a criminal conviction, for the same act, in breach of his right not to be tried and punished twice for the same offence under Article 4 of Protocol No. 7 to the Convention.<\/p>\n

THE FACTS<\/strong><\/p>\n

2. The applicant was born in 1981 and lives in Bac\u01ceu. He was represented by Mr G.-B. Pocovnicu, a lawyer practising in Bac\u0103u.<\/p>\n

3. The Government were represented by their Agent, Ms O.F. Ezer, of the Ministry of Foreign Affairs.<\/p>\n

4. The facts of the case may be summarised as follows.<\/p>\n

I. Incident of 24\/25 September 2011<\/strong><\/p>\n

5. On the night of 24\/25 September 2011 several hundred people attended an entertainments event in K. Club (hereinafter \u201cthe Club\u201d), located in the C.P. shopping centre in Bac\u01ceu. Among the people were two groups, one comprising four individuals (including a certain R.C.), the other, six\u00a0individuals (including the applicant). In view of various conflicts between the two groups, the Club let them sit in different areas, namely, one close to the door, the other close to the back of the club.<\/p>\n

6. At around 3.40 a.m. the applicant got up from his seat, and, holding a bottle in his hand, rushed towards the door, pushing several individuals to the side. The other members of his group accompanied him.<\/p>\n

Since the manager of the Club was aware of a previous clash between the applicant and R.C., he intervened by trying to prevent the applicant from assaulting R.C. The applicant then fell over and shortly thereafter got up and continued his way towards R.C., whom he tried to hit.<\/p>\n

7. This created a skirmish, during which the members of the two groups pushed one another, climbed onto the tables and sofas, and broke several bottles and glasses. R.C. used teargas, spraying it in the direction where the skirmish was taking place. Several members of the security staff intervened and forced the applicant and the members of his group out of the Club.<\/p>\n

8. A certain I.S., who had also been present in the Club and who had had previous clashes with the members of the applicant\u2019s group, rushed towards the applicant and started a quarrel, pushing him at the same time. A new skirmish broke out, during which those involved were verbally abusive and made threatening gestures. I.S. was eventually hit on the head by one of the members of the applicant\u2019s group; he ran off, and was followed by the applicant and some of his friends. I.S. then re-entered the Club, where, as held by the domestic courts (see proceedings described under Chapter IV below),\u201cprobably in order to unwind after being hit by P.F., P.D. and the applicant\u201d, he hit and pushed a certain V.S.A. In the meantime R.C. continued to be in a state of agitation, and threw a bottle at the bar. I.S., R.C. and other members of R.C.\u2019s group together made their way towards the Club\u2019s exit and then out of the building, clearly intent on confronting their adversaries again, namely the applicant\u2019s group.<\/p>\n

9. The conduct was such that many of those inside the Club decided to leave the shopping centre altogether.<\/p>\n

II. Complaints by the third parties<\/strong><\/p>\n

10. On 25 September 2011 the manager of the Club notified the criminal investigative authorities that in the early hours of that same day, two groups of people had caused mayhem (scandal), in which property was damaged and many clubgoers had fled the scene. No civil claim was attached to the complaint. On an unspecified date the complaint was later withdrawn.<\/p>\n

11. On the same day I.S. filed a criminal complaint against P.F. and the applicant about their hitting him in the Club. He later withdrew his complaint.<\/p>\n

12. On 27 September 2011 a certain L.D.B. and P.F. notified the criminal investigative authorities of having been hit inside the Club by I.S. and T.C.I., and by I.S., respectively, and of public order having been disturbed on that occasion. On an unspecified date L.D.B. withdrew his complaint.<\/p>\n

III. Penalty notice and the fine imposed on the applicant for disorderly acts disturbing public order<\/strong><\/p>\n

13. On 28 September 2011 a penalty notice was issued. On the basis of Article 3 point 24 of the Law no. 61\/1991 on the punishing of acts breaching certain norms of social coexistence and public order and peace (see paragraph\u00a029 below), the applicant was fined 200 Romanian lei (RON \u2013 approximately 50 euros) for a non-criminal minor offence (contraven\u0163ie) committed on the night of 24\/25 September 2011 relating to disorderly acts causing public disorder. According to the notice:<\/p>\n

\u201cwhile in K. Club, he caused and, together with I.S., R.C. and S.M., engaged in mayhem (a provocat si participat la scandal), provoking public outrage.\u201d<\/p>\n

14. The notice, which specified that it was subject to judicial review within fifteen days after being served on the offender, was never challenged by the applicant, who paid the fine at an unknown later date.<\/p>\n

IV. Criminal proceedings against the applicant for disorderly and violent conduct in a public place<\/strong><\/p>\n

15. On 25\u00a0September 2011 criminal proceedings were also initiated in relation to the incident of 24\/25 September 2011 (see paragraphs 5-9 above), against several individuals, including the applicant, who were accused of having committed the offence set forth in Article 321 \u00a7 2 of the Criminal Code in force at the time (hereinafter \u201cthe old CC\u201d \u2013 see paragraph 28 below).<\/p>\n

The evidence adduced in the case consisted of, inter alia, witness statements taken between September and December 2011, photographs and security camera footage.<\/p>\n

16. The applicant was indicted on 22 March 2012 for the offence set out in Article 321 \u00a7\u00a02 of the old CC for having<\/p>\n

\u201c… caused mayhem in the C.P. shopping centre in Bac\u01ceu, following which various goods inside Club K. were destroyed, the programme of entertainment was interrupted and some two hundred clubgoers left the place, shocked and terrified by the anti-social behaviour displayed by the applicant [and the others] …\u201d<\/p>\n

17. The applicant challenged the indictment by raising before the Bac\u01ceu District Court an objection of res judicata, arguing that he had already been punished for the same act by the penalty notice of 28 September 2011 (see paragraph 13 above), and that according to the ne bis in idem principle, he could not be criminally prosecuted, again, for the same acts.<\/p>\n

18. In the judgment given on 19 March 2015, the court dismissed his argument, holding that in so far as the penalty notice had not been challenged before a court (see paragraph 14 above), there was no final judgment to be taken into account in the application of the res judicata principle. A penalty notice and its findings could not be regarded as comparable to the findings of a court in a final judgment.<\/p>\n

19. Furthermore, according to the District Court, the act that was subject to punishment by the penalty notice was different from the act for which the applicant had been indicted. The penalty notice referred to the applicant\u2019s participation in \u201cmayhem\u201d, which meant \u201cparticipat[ion] in a verbal conflict, shouting, quarrel, alarm\u201d; however, the criminal proceedings pending before the court referred to the act of disturbing public order, which, as of 1\u00a0November 2014, when the new Criminal Code (hereinafter, the \u201cCC\u201d), with its lesser penalty (lex mitior), entered into force, was set forth in Article 371, punishing \u201cacts committed in public and with violence against persons or property, or threats or serious injury to dignity, which disturb public order and peace\u201d (see paragraph 28 below). At the same time, a fine as low as RON\u00a0200 could not be regarded as a criminal punishment.<\/p>\n

20. The first-instance court convicted the applicant of the offence provided for in Article 371 of the CC and sentenced him to a term of one year\u2019s imprisonment, having regard to the applicant\u2019s criminal record and to his contribution to \u201cthe initiation, the spreading and the fuelling of the conflict\u201d (\u201cna\u0219terea, propagarea \u0219i alimentarea conflictului\u201d).<\/p>\n

21. The applicant lodged an appeal with the Bac\u0103u Court of Appeal. He reiterated his two main arguments: firstly, that he had been convicted in breach of the ne bis in idem principle; and secondly, that he had not struck or destroyed property or threatened anyone to warrant being charged with the offence provided for in Article 371 of the CC.<\/p>\n

22. He relied on the judgment of the Court of Justice of the European Union of 11 February 2003 in G\u00f6z\u00fctok and Br\u00fcgge (Joined Cases C-187\/01 and C-385\/01, EU:C:2003:87, paragraph 31), stating that a \u201cfinal judgment\u201d was a court decision which remained final, but also any final decision taken by an authority in a \u201ccriminal\u201d case, within the meaning of the Convention.<\/p>\n

23. Also, while referring to Engel and Others v. the Netherlands (8 June 1976, Series A no. 22), Sergey Zolotukhin v. Russia ([GC], no. 14939\/03, ECHR 2009), and Tsonyo Tsonev v. Bulgaria (no. 2) (no. 2376\/03, 14\u00a0January 2010), he argued that the act described in the penalty notice and the one described in the indictment were identical in substance, that is, he was charged twice with having caused mayhem in public which provoked outrage and indignation. He indicated that on 21 May 2015, the same appellate court had decided in a similar case to discontinue the criminal proceedings against an accused as res judicata, based on the fact that the ne bis in idem principle had been breached by the imposition of a fine and subsequently of a criminal sentence for the same act.<\/p>\n

24. The applicant further argued that according to the Romanian dictionary, the word \u201cmayhem\u201d (\u201cscandal\u201d) designated a violent reaction in the form of protest, a quarrel often accompanied by a fight, destruction of property and so on, or the noise created by such a fight; by no means did the word refer exclusively to \u201cverbal abuse\u201d, as held by the first-instance court.<\/p>\n

25. Lastly, he emphasised that he personally had not been indicted for any act of hitting or threatening a person or of destroying property, the footage on the camera serving as proof that he did not commit such acts.<\/p>\n

26. On 15\u00a0December 2015 the appellate court confirmed the applicant\u2019s conviction. Its judgment was notified to the applicant on 14 January 2016. In reply to the ne bis in idem argument submitted by the applicant, the appellate court, distinguishing the present case from the Court\u2019s relevant case-law relied on by the applicant, found that the applicant had initially been punished for causing mayhem in public, while subsequently being indicted for acts which exceeded the degree of gravity of a minor offence, namely \u201cfor severe disturbance of public peace and order in the context of committing violent acts, threats and property destruction\u201d.<\/p>\n

The first-instance court had correctly established that the applicant, together with several other co-accused, had caused mayhem, as a consequence of which various goods were damaged, all of which made more than two hundred clubgoers leave the venue, terrified and outraged.<\/p>\n

27. The court further decided to stay the execution of the sentence of imprisonment imposed on the applicant, noting, among other things, that in respect of his previous convictions, rehabilitation had been completed. Several probationary measures had been taken in respect of him, including the obligation to carry out one hundred days of community service.<\/p>\n

RELEVANT LEGAL FRAMEWORK AND PRACTICE<\/strong><\/p>\n

28. Article 321 of the old CC and Article 371 of the CC as in force at the material time provided as follows:<\/p>\n

Article 321 \u2013 Indecent assault and disorderly conduct<\/p>\n

\u201c(1) The act of a person who, in public, commits acts or gestures, utters words or expressions, or indulges in any other manifestations by which public morals are offended or mayhem (scandal) in public is caused or public peace and order is otherwise disturbed shall be punished by imprisonment for a term of between one and five years.<\/p>\n

(2) If, by the act referred to in paragraph 1, public peace and order have been severely disturbed, the penalty shall be imprisonment for a term of between two and seven\u00a0years.\u201d<\/p>\n

Article 371 \u2013 Disturbing public order<\/p>\n

\u201cThe act of a person who, in public, by violence committed against persons or property or by threats or serious injury to the dignity of persons, disturbs public order and peace (lini\u0219tea public\u01ce) shall be subject to a prison sentence of between three\u00a0months and two years or to a fine.\u201d<\/p>\n

29. The relevant provisions of Law no.\u00a061\/1991 on the punishing of acts breaching certain norms of social coexistence and public order and peace, as in force at the relevant time, read as follows:<\/p>\n

Article 1<\/p>\n

\u201cIn order to ensure the climate of public order and peace necessary for the normal development of economic and socio-cultural activity and to promote civilised relations in everyday life, citizens are obliged to behave in a civic, moral and responsible manner, in the spirit of the laws of the country and the rules of social coexistence.\u201d<\/p>\n

Article 3<\/p>\n

\u201cCommitting any of the following acts amounts to a minor offence (contraventie), unless they are committed in circumstances constituting a criminal offence pursuant to criminal law:<\/p>\n

…<\/p>\n

(24) provoking or actually participating in mayhem (scandal) in public places or premises; …\u201d<\/p>\n

According to the law, the punishment imposed for the act described in Article\u00a03, point 24 was a fine ranging from RON 200 to RON 1,000.<\/p>\n

THE LAW<\/strong><\/p>\n

I. Alleged violation of article 4 of protocol no.\u00a07 to the convention<\/strong><\/p>\n

30. The applicant complained that he had been tried and convicted twice for the same offence in breach of his rights protected 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

31. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.<\/p>\n

B. Merits<\/strong><\/p>\n

1. The parties\u2019 submissions<\/strong><\/p>\n

(a) The applicant<\/p>\n

32. The applicant essentially reiterated the arguments he had put forward before the domestic courts (see paragraphs 21-24 above): the notion of \u201cfinal decision\u201d was wide, and included a penalty notice such as the one that led to his being fined; the two forms of punishment in question were criminal in nature, the minor offence being applicable to the general public, and both had a preventive and a repressive function; the word \u201cmayhem\u201d did not refer exclusively to verbal abuse, but possibly also to physical assault. He alleged that both sets of proceedings had concerned the same facts.<\/p>\n

(b) The Government<\/p>\n

33. The Government argued that the applicant\u2019s complaint was one of a fourth-instance nature: the arguments that he had brought before the Court had already been thoroughly assessed and correctly dismissed by the domestic courts.<\/p>\n

34. Firstly, the two punishments had been based on facts that were not identical, as explained by the domestic courts, which had made a clear distinction between the two acts of which the applicant had been accused of and for which he had been punished. They considered that the notion of \u201cmayhem\u201d (mentioned in the definition of the minor offence) necessarily referred to a verbal conflict, while the criminal charge related to violent and aggressive physical behaviour.<\/p>\n

35. Secondly, the fine could not be considered \u201ccriminal\u201d within the meaning of the Court\u2019s case-law: the domestic law defined the offence as a minor one, the fine imposed was minimal and the punishment could not be replaced with imprisonment (the Government relied on the recent decision in Prina v. Romania ((dec.), no.\u00a037697\/13, 8 September 2020), inadmissible in so far as the fine imposed on the applicant in that case had been considered not to be a criminal punishment).<\/p>\n

36. Moreover, the two punishments had been imposed by different authorities: the fine had been imposed as a result of the assessment that the police officer had carried out at the scene, while the criminal proceedings (which had resulted in the applicant\u2019s conviction) had been initiated only after several criminal complaints had been filed, claiming that the applicant\u2019s actions on the relevant night had amounted to criminal offences. The two procedures were therefore complementary, and not duplicated; the subsidiary nature of the minor-offence liability in relation to criminal liability was an important element to be considered in the present case.<\/p>\n

37. Lastly, the fine could not be considered to amount to a \u201cfinal\u201d conviction, as there had been no final decision on the matter \u2013 the applicant had not contested the fine before a court, and the penalty notice could not be regarded as a final decision.<\/p>\n

2. The Court\u2019s assessment<\/strong><\/p>\n

(a) General principles<\/p>\n

38. The relevant principles concerning the protection against duplication of criminal proceedings are summarised in Sergey Zolotukhin v. Russia ([GC], no. 14939\/03, \u00a7\u00a7 79-84, ECHR 2009), A and B v. Norway ([GC], nos.\u00a024130\/11 and 29758\/11, \u00a7\u00a7 105-34, 15 November 2016) and Mihalache v. Romania ([GC], no. 54012\/10, \u00a7\u00a7 47-49, 53-54, 67 and 88-116, 8 July 2019).<\/p>\n

39. Under Article 4 of Protocol No. 7, which enshrines the ne bis in idem rule, the Court has to determine whether the two sets of proceedings were criminal in nature, whether they concerned the same facts and offence (\u201cin idem\u201d), whether the administrative fine constituted a \u201cfinal conviction\u201d, and whether there was any duplication of proceedings (\u201cbis\u201d \u2013 see, for instance and mutatis mutandis, A and B v. Norway, cited above, \u00a7\u00a7\u00a0136-47).<\/p>\n

(b) Application of those principles in the present case<\/p>\n

(i) Whether the proceedings were criminal in nature<\/p>\n

40. It is not contested between the parties that the proceeding which led to the applicant\u2019s conviction for \u201cdisturbing public order\u201d, an offence punished by Article 371 of the CC, were criminal in nature. The Court does not see any reasons to hold otherwise.<\/p>\n

41. It remains to be established whether the proceedings relating to the imposition of an administrative fine on the applicant pursuant to Law no.\u00a061\/1991 were criminal in nature. In doing so the Court will rely on the \u201cEngel criteria\u201d (see Engel and Others v. the Netherlands, 8 June 1976, \u00a7\u00a082, Series\u00a0A no. 22): the first\u00a0criterion is the legal classification of the offence under national law, the second is the very nature of the offence and the third is the degree of severity of the penalty that the person concerned risks incurring. The second and third\u00a0criteria are alternative and not necessarily cumulative. However, this does not exclude a cumulative approach in cases where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge (see, among many other authorities, Sergey Zolotukhin, cited above, \u00a7 53, and the cases cited therein).<\/p>\n

42. As regards the first criterion, it is clear that the impugned fine was administrative under Law no. 61\/1991, which provides for minor offences (see paragraph 29 above). However, this element alone cannot be decisive; indeed, the legal characterisation of the procedure under national law cannot be the sole criterion of relevance for the applicability of the ne bis in idem principle under Article 4 \u00a7 1 of Protocol No. 7, otherwise the application of this provision would be left to the discretion of the Contracting States to a degree that might lead to results that are incompatible with the object and purpose of the Convention (see Muslija v. Bosnia and Herzegovina, no.\u00a032042\/11, \u00a7\u00a025, 14 January 2014).<\/p>\n

43. As to the second criterion, the relevant domestic provisions were applicable, in accordance with Article 1 of Law no. 61\/1991 (see paragraph\u00a029 above), to all citizens rather than to a group possessing a special status (contrast Prina, cited above, \u00a7\u00a7 53-54). The sanction laid down for the offence defined in Article 3 of the Law was a fine, which was aimed at punishing and deterring behaviour liable to undermine the social values safeguarded by law; these elements are recognised as characteristic features of criminal penalties.<\/p>\n

44. Regarding the third criterion, namely the degree of severity of the measure, the Court observes that even though the fine imposed in the present case was not of a substantial amount (being approximately EUR 50), the maximum fine prescribed by the law for such conduct being itself rather low (approximately EUR 250), nevertheless it was punitive in nature, as already mentioned in paragraph 43 above, the purpose of the fine being not to compensate for the damage caused by the applicant, but rather to deter him from committing the offence again (see, mutatis mutandis, Sancakl\u0131 v.\u00a0Turkey, no. 1385\/07, \u00a7 30, 15 May 2018). Indeed, the fact that the maximum potential penalty for the breach of public order the applicant was accused of did not include imprisonment is not decisive, it being sufficient that the offence in question is by its nature criminal for the purposes of the Convention (see, mutatis mutandis, Tsonyo Tsonev v. Bulgaria (no. 2), no.\u00a02376\/03, \u00a7 49, 14 January 2010).<\/p>\n

45. In the light of the above considerations,\u00a0the Court concludes that the nature of the offence for which the applicant was fined by the police on 28\u00a0September 2011 was such as to bring it within the ambit of the expression \u201cpenal procedure\u201d used in Article 4 of Protocol No. 7.<\/p>\n

(ii) Whether the facts of the offences were the same in nature (\u201cin idem\u201d)<\/p>\n

46. The notion of the \u201csame offence\u201d \u2013 the in idem element of the ne bis in idem principle in Article 4 of Protocol No. 7 \u2013 is to be understood as a second \u201coffence\u201d arising from identical facts or facts which are substantially the same (see Sergey Zolotukhin, cited above, \u00a7\u00a7 78-84).<\/p>\n

47. In the present case, the facts which gave rise to the administrative fine and to the applicant\u2019s prosecution and criminal conviction were essentially the causing of mayhem that generated public outrage and disturbed public order and peace, in breach of the relevant legal provisions set out in Law no.\u00a069\/1991, on the one hand, and those in the Criminal Code, on the other. This recapitulation of the events demonstrates that what is at issue is the same conduct on the part of the same defendant and within the same time frame; what remains to be established is whether the facts of the offence for which the applicant was fined and those of the criminal offence by reason of which he was indicted were identical or substantially the same (see, mutatis mutandis, Ruotsalainen v. Finland, no. 13079\/03, \u00a7 53, 16 June 2009).<\/p>\n

48. The established facts in the two sets of proceedings referred to a single incident in the K. Club on the night of 24\/25 September 2011, which provoked outrage and\/or indignation. Their legal classification apparently differed in one respect, as pointed out by the domestic authorities: the degree of severity of the disturbance. The act punished by the penalty notice as a minor offence was lower on the scale of severity, whereas the act that the applicant had been charged with in the criminal proceedings was more serious. In other words, as suggested by the domestic authorities, while the first act referred to the causing of mayhem without any element of physical violence, in so far as the word \u201cmayhem\u201d implied mere verbal abuse, the criminal act was more contextualised, being described as a \u201csevere disturbance of public peace and order in the context of committing violent acts, threats and property destruction\u201d (see paragraphs 19 and 26 above).<\/p>\n

49. While noting that no separate accusations for the destruction of property or physical assault were brought against the applicant (see paragraphs 15-16 above), the Court cannot overlook the fact that the concept of \u201cmayhem\u201d, in so far as it is not specifically defined in the relevant domestic criminal law, must be interpreted in accordance with its common meaning, which, as also argued by the applicant, suggests a certain idea of violence, whether verbal or physical, directed against people and\/or property (see paragraph 24 above)[1].<\/p>\n

50. In view of the above factors, the Court must conclude that the criminal charges brought against the applicant comprised the facts of the administrative offence in its entirety, and, conversely, the facts of the administrative offence did not contain any elements that were not present in the criminal offence with which the applicant was charged (see, mutatis mutandis, Sergey Zolotukhin, \u00a7 97; Tsonyo Tsonev, \u00a7 52; and Ruotsalainen, \u00a7\u00a7 50 and 56, all cited above).<\/p>\n

51. The facts constituting the two offences must therefore be regarded as substantially the same for the purposes of Article 4 of Protocol No. 7.<\/p>\n

(iii) Whether the administrative fine constituted a \u201cfinal conviction\u201d<\/p>\n

52. The Court established in Mihalache (cited above, \u00a7\u00a7\u00a093-95) that judicial intervention was unnecessary for a decision to be regarded as a \u201cfinal acquittal\u201d or a \u201cconviction\u201d under Article\u00a04 of Protocol No. 7. It clarified what was meant by a final decision for the purposes of Article\u00a04 of Protocol No. 7 in Sergey Zolotukhin (cited above, \u00a7\u00a7 107 and\u00a0108, with further references) and in particular, as regards situations where an administrative decision imposed fines, as in Tsonyo Tsonev (cited above, \u00a7\u00a7\u00a053, 54 and 56).<\/p>\n

53. Having regard to the above-mentioned well-established principles as relevant to the present case and noting that the applicant did not challenge the penalty notice and paid the fine at some subsequent moment (see paragraph\u00a014 above), the administrative decision imposing that fine became \u201cfinal\u201d for the purposes of Article 4 of Protocol No. 7.<\/p>\n

Even though the date when that decision became final cannot be established with sufficient precision, in the absence of accurate information concerning the date when the penalty notice was issued to the applicant or at least the date when the fine was paid, what cannot be disputed is that at the time when the applicant was indicted and brought before the first-instance court, he raised a res judicata objection (see paragraph 17 above), thus arguing that the previous decision was final. The first-instance court confirmed at the time of its judgment that the fine had been paid and that the report had not been challenged (see paragraph 18 above).<\/p>\n

(iv) Whether there was a duplication of proceedings (\u201cbis\u201d)<\/p>\n

54. As regards the conditions to be satisfied in order for dual sets of criminal and minor-offence proceedings to be regarded as sufficiently connected in substance and in time and thus compatible with the \u201cbis\u201d criterion in Article 4 of Protocol No. 7, it is necessary to ascertain for example:<\/p>\n

\u2013 whether the different sets of proceedings pursued complementary purposes and thus addressed, not only in abstracto but also in concreto, different aspects of the social misconduct involved;<\/p>\n

\u2013 whether the dual sets of proceedings concerned constituted a foreseeable consequence, both in law and in practice, of the same impugned conduct (\u201cin idem\u201d);<\/p>\n

\u2013 whether the relevant sets of proceedings were conducted in such a manner as to avoid as far as possible any additional disadvantages resulting from duplication of proceedings, and in particular in the collection and assessment of the evidence, notably through adequate interaction between the various competent authorities to ensure that the establishment of the facts in one set of proceedings was replicated in the other;<\/p>\n

\u2013 and, above all, whether the punishment imposed in the proceedings which became final first was taken into account in those which became final last, so as to prevent the individual concerned from being in the end made to bear an excessive burden; this risk being least likely to be present where there is in place an offsetting mechanism designed to ensure that the overall quantum of any penalties imposed is proportionate (see A and B v. Norway, cited above, \u00a7\u00a7\u00a0131-32).<\/p>\n

Lastly, combined proceedings will more likely meet the criteria of complementarity and coherence if the sanctions to be imposed in the proceedings not formally classified as \u201ccriminal\u201d are specific for the conduct in question and thus differ from \u201cthe hard core of criminal law\u201d (Baj\u010di\u0107 v.\u00a0Croatia, no. 67334\/13, \u00a7 40, 8 October 2020).<\/p>\n

55. In the instant case, the criminal proceedings were initiated against the applicant on 25 September 2011 (see paragraph 15 above); on 28\u00a0September 2011, in parallel with the criminal proceedings, the police issued the notice punishing the applicant with an administrative fine (see paragraph 13 above). That fine remained final for some time while the criminal proceedings were still pending before the investigative authorities (see paragraph 14 above). Those proceedings concluded on 15 December 2015 with the applicant being convicted in a final judgment and sentenced to a term of imprisonment, the execution of which was stayed (see paragraphs 26-27 above).<\/p>\n

56. Noting that according to its established case-law, the two sets of proceedings do not necessarily have to be conducted simultaneously from beginning to end, the Court considers that the dual sets of proceedings were sufficiently connected in time within the meaning of its case-law (see A\u00a0and\u00a0B v. Norway, cited above, \u00a7 134, and Velkov v. Bulgaria, no.\u00a034503\/10, \u00a7 77, 21 July 2020).<\/p>\n

57. In its assessment of the connection in substance between the two sets of proceedings, the Court reiterates what it has already established, namely that both sets were criminal in nature (see paragraph\u00a045 above) and concerned the same reprehensible conduct on the part of the applicant, manifested within the same time frame (see paragraph 47 above).<\/p>\n

58. While the objectives of both penalties were deterrence and punishment, the Court notes that the fine imposed in administrative proceedings was specific for the conduct in question and thus differed from \u201cthe hard core of criminal law\u201d, as it did not have stigmatising features (see, mutatis mutandis, Goulandris and Vardinogianni v. Greece, no. 1735\/13, \u00a7\u00a074, 16 June 2022). The Court nevertheless observes that the conduct amounted to a one-off incident rather than a pattern of such behaviour. Moreover, the criminal proceedings were initiated against the applicant even before the administrative fine was imposed on him (see paragraphs 15 and 13 above). The Court concludes therefore the criminal proceedings cannot be regarded as a complementary response to the applicant\u2019s unlawful behaviour, aimed at addressing an ongoing situation of violence in a comprehensive manner, once it was found that the behaviour had reached a certain level of severity (contrast Galovi\u0107 v. Croatia, no.\u00a045512\/11, \u00a7\u00a7 117-18, 31 August 2021). It follows that the two sets of proceedings did not pursue complementary purposes in addressing the issue of socially offensive conduct that disturbs public order by causing mayhem in a public place.<\/p>\n

59. Furthermore, as regards the foreseeability in law and in practice of the consequences of the applicant\u2019s conduct, the Court reiterates that the impugned conduct corresponded to a single incident, described similarly both in the administrative penalty notice (see paragraph 13 above) and in the indictment as the act of causing mayhem which had provoked public outrage, the indictment referring also to a further consequence, namely that of entailing the destruction of some goods (see paragraph 16 above), without however incriminating the applicant for destruction of property.<\/p>\n

60. Noting that duplication of proceedings and penalties may be allowed only under conditions provided for and exhaustively defined by clear and precise rules allowing individuals to predict which acts or omissions were liable to be subject to such duplication, thereby ensuring that the right guaranteed by Article 4 of Protocol No. 7 is not called into question as such and legal certainty is preserved (see Galovi\u0107, cited above, \u00a7\u00a0119), the Court considers that in the instant case the applicant had no reason to foresee that his conduct could have entailed consequences such as the institution of minor-offence proceedings for a particular individual incident as well as criminal proceedings for the same incident.<\/p>\n

61. As to the manner of conducting the proceedings, the Court observes that the criminal court disregarded the previous minor-offence proceedings against the applicant. Both domestic courts considered those proceedings as irrelevant for the assessment of the res judicata argument raised by the applicant, in so far as there had been no final judgment rendered in the minor-offence proceedings, which, in their view, had not entailed a punishment of a criminal nature, having regard to the low quantum of the fine (see paragraphs\u00a018-19 and 26 above). The two penalties imposed on the applicant, one of which entailed a deprivation of liberty, even though its execution was ultimately stayed, were not combined or integrated in any manner. Consequently, the applicant may be regarded as having suffered a disadvantage associated with the duplication of proceedings, beyond what was strictly necessary.<\/p>\n

62. Having regard to those factors, the Court finds that the two sets of proceedings were not combined in an integrated manner such as to form a coherent whole, thus falling foul of the \u201cbis\u201d criterion under Article\u00a04 of Protocol No. 7 (see, mutatis mutandis, Mihalache, cited above, \u00a7\u00a085).<\/p>\n

(v) Conclusion<\/p>\n

63. The applicant was fined in minor-offence proceedings which are to be assimilated to \u201ccriminal proceedings\u201d within the autonomous Convention meaning of \u201ccriminal\u201d. The subsequent proceedings against the applicant, classified as criminal under domestic claw, concerned essentially the same offence as that for which he had already been fined by the police with final effect.<\/p>\n

64. Notwithstanding their connection in time, it has not been established that the two sets of proceedings pursued complementary purposes, or that they were combined in an integrated manner such as to form a coherent whole; in any event, as a consequence the applicant has been punished twice for the same conduct and has sustained disproportionate prejudice resulting from the duplication of proceedings and penalties, which in his case did not form a coherent whole and was not proportionate.<\/p>\n

65. There has accordingly been a violation of Article 4 of Protocol No. 7 to the Convention.<\/p>\n

II. Application of article\u00a041 of the convention<\/strong><\/p>\n

66. 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

67. The applicant claimed 20,000 euros (EUR) in respect of non\u2011pecuniary damage.<\/p>\n

68. The Government contested the claim.<\/p>\n

69. Having regard to the nature of the violation found and to the circumstances of the present case, the Court considers that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant.<\/p>\n

B. Costs and expenses<\/p>\n

70. As the applicant did not claim costs and expenses, the Court is not called upon to make any award under this head.<\/p>\n

FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n

1. Declares the application admissible;<\/p>\n

2. Holds that there has been a violation of Article 4 of Protocol No. 7 to the Convention;<\/p>\n

3. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant.<\/p>\n

Done in English, and notified in writing on 3 October 2023, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n

Andrea Tamietti \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0Gabriele Kucsko-Stadlmayer
\nRegistrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 President<\/p>\n

___________<\/p>\n

[1] According to an online dictionary (https:\/\/www.dex.ro\/scandal) the word \u201cscandal\u201d may be defined as: \u201cviolent reaction of protest against something unworthy, shameful, unacceptable, etc. 2. quarrel often accompanied by fighting, damage to objects, etc.; (e.g.) noise, loud noise produced by such a quarrel\u201d<\/p>\n

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The case concerns the applicant\u2019s allegation that he was punished twice, firstly with a fine and subsequently with a criminal conviction, for the same act, in breach of his right not to be tried and punished twice for the same…<\/p>\n

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