11 Jul Violation of the ne bis in idem principle

In the case of Mihalache v. Romania (application no. 54012/10) the European Court of Human Rights held, unanimously, that there had been a violation of Article 4 of Protocol No. 7 (right not to be tried or punished twice) to the European Convention on Human Rights.

In this case, the applicant Mr Mihalache submitted that he had been prosecuted twice for having refused to undergo a blood test in the framework of a police control with a view to determining his alcohol blood level. 

In May 2008 Mr Mihalache was stopped in his car by the police as a preventive control measure. He underwent a breathalyser test, which proved positive. The police officers then asked him to accompany them to a hospital for a blood test, but Mr Mihalache refused.

 In July 2008 the public prosecutor’s office instituted criminal proceedings against him for refusing to undergo biological tests to determine his blood alcohol level. On 7 August 2008 the public prosecutor’s office terminated the proceedings on the grounds that the acts committed were not sufficiently serious to constitute an offence. However, it ordered Mr Mihalache to pay an administrative fine equivalent to around 250 euros. No appeal was lodged against that order, and Mr Mihalache paid the fine, together with court fees. In January 2009 the higher-ranking public prosecutor’s office decided, ex officio, to set aside order of 7 August 2008 on the grounds that an administrative penalty had not been appropriate in the light of the degree of general and specific danger to society posed by the facts of the case. Subsequently, the case was referred back to the prosecutor’s office with a view to continuing the criminal investigation.

Relying on Article 4 of Protocol No. 7 (right not to be tried or punished twice), the applicant complained that he had been tried and convicted twice for the same offence.

The Court found that Mr Mihalache had been prosecuted twice for the same offence, in breach of the ne bis in idem principle, and that the reopening of the proceedings had not been justified. 

Mr Mihalache had been the subject of an initial set of criminal proceedings, during which the public prosecutor’s office had imposed an administrative fine on him, which became final on expiry of the time-limit set out in Article 2491 of the Code of Criminal Procedure (CCP). Subsequently, the higherranking prosecutor’s office set aside the lower prosecutor’s decision and committed Mr Mihalache for trial. He was sentenced to one year’s imprisonment, suspended.

Given that none of the situations permitting the combination or reopening of proceedings had been observed in the present case, the Court concluded that Mr Mihalache had been tried twice for the same offence, in breach of the ne bis in idem principle. There had accordingly been a violation of Article 4 of Protocol No. 7 to the Convention.

References from the official website of the European Court of Human Rights