Abstract
This article analyses the decision of the European Court of Human Rights (ECtHR) in the case of Mihalache v Romania. In the judgment, the Court, dealing with the application of the ne bis in idem principle, further elaborates on the different components of the concept ‘final acquittal or conviction’ under Article 4 of Protocol No 7 to the European Convention on Human Rights. The author studies this aspect of the ruling through the lens of judicial dialogue and examines in particular the influence of relevant case law of the Court of Justice of the European Union on the ECtHR’s reasoning.
Keywords
Introduction
On 11 July 2019, the Grand Chamber of the European Court of Human Rights (‘ECtHR’, ‘the (Strasbourg) Court’) delivered its eagerly awaited judgment in the case of Mihalache v Romania. The question for the Court was whether the decision of a higher-ranking public prosecutor to reopen criminal proceedings, overruling a lower-ranked prosecutor’s earlier decision to discontinue and impose an administrative fine, breached the ne bis in idem principle enshrined in Article 4 of Protocol No 7 to the European Convention on Human Rights (‘ECHR’). It seized this opportunity to clarify the principle’s scope and, more specifically, provide further detail as to when a decision constitutes ‘a final acquittal or conviction’ precluding any subsequent (criminal) prosecution and punishment for the same act(s).
This article intends to outline, analyse and succinctly reflect upon the ECtHR’s reasoning. It will be argued that this ruling is particularly interesting for European Union (EU) lawyers as it can be studied through the lens of the judicial dialogue between the Court of Justice of the European Union (‘CJEU’, ‘the Luxembourg Court’) and ECtHR. From that perspective, it sheds light on the broader interplay between EU fundamental rights law and the Convention.
Factual background of the case
On 3 May 2008, the police stopped Mr Mihalache during a preventive traffic control for a breath test. As the test proved positive, he was asked to accompany the police to a nearby hospital and provide a biological sample to determine his blood alcohol level; he refused to do so. The district’s public prosecutor decided to initiate criminal proceedings against the applicant for refusing to give a biological sample. At the material time, this constituted a criminal offence under Romanian law punishable by a maximum sentence of between 2 and 7 years’ imprisonment.
Less than a month later, by an order dated 7 August 2008, the Foçsani District Court’s public prosecutor’s office terminated the criminal proceedings against the applicant based on the fact that his actions, although punishable by criminal law, did not attain the requisite level of seriousness to constitute a criminal offence warranting further prosecution. An administrative fine of approximately €250 was imposed instead. No appeal was lodged against that order and Mr Mihalache paid the fine.
In January 2009, the relevant higher-ranking public prosecutor’s office overturned the initial decision. It decided, proprio motu, to set aside the discontinuance decision and quashed the fine on the grounds that an administrative penalty had been inadequate in the light of the degree of general and specific danger to society posed by the facts of the case. Accordingly, the criminal proceedings were reinstituted and the investigation continued, which eventually resulted in the conviction of Mr Mihalache. In November 2009, he was sentenced to a suspended imprisonment of 1 year, a sentence beneath the statutory minimum; it was further ordered that the initial administrative fine be reimbursed. The appeal challenging the decision to reopen the criminal proceedings on the ground that it breached the principle of ne bis in idem provided by Article 4 of Protocol No 7 to the ECHR was dismissed. Mr Mihalache applied to the Strasbourg Court.
Reasoning of the Court
At the outset, the Court recapitulates the constitutive elements of the ne bis in idem principle as laid down in Article 4(1) of Protocol No 7. For a situation to fall within the material scope of application of that principle, three cumulative conditions must be fulfilled: (1) two sets of proceedings that must be ‘criminal’ in nature; (2) both proceedings must concern the same ‘offence’ as well as the same offender and (3) there must be a ‘duplication’ or repetition of criminal proceedings. 1
Firstly, the Court establishes the existence of two separate sets of ‘criminal’ or ‘penal’ proceedings. Echoing its well-established case law on Article 6(1) of the Convention, the Court reiterates that the concept of ‘criminal proceedings’ in the text of Article 4 of Protocol No 7 should be interpreted broadly and autonomously, that is to say, in the light of the classic Engel criteria. 2 Hence, the formal legal classification of the offence under domestic law merely serves as a starting point which needs to be supplemented by a more detailed analysis of the essential nature of the offence as well as the degree of severity of the penalty. 3 In the instant case, the Court finds that the procedure leading up to the discontinuance order and the imposition of a fine, despite it being administrative under the Romanian criminal code, had constituted criminal proceedings under the Engel criteria. The severity of the €250 penalty – the Court explicitly highlights its ‘clearly punitive and deterrent purpose’ – appears to be the weightiest consideration in that regard. Separately, the Court confirms that the second proceedings (resulting in the applicants’ suspended sentence of 1 year’s imprisonment) were criminal in nature. 4
Secondly, the ECtHR analyses whether both criminal proceedings concern the same offence and offender: the so-called ‘idem’ criterion. The Court reaffirms its approach to this as established in the seminal Zolotukhin v Russia 5 ruling and consolidated in subsequent case law. For the idem requirement to be met, the set of factual circumstances out of which the offences in both proceedings arose must be ‘identical’ or at least ‘substantially the same’. 6 The legal classification under which the offences are tried in both sets of proceedings is immaterial. Here, the Court swiftly concludes that both sets of criminal proceedings concerned the same constellation of factual circumstances – that is, the refusal to undergo a blood alcohol test following a preventive control by the traffic police during the night of 2 to 3 May 2008. 7
Thirdly, the Court recalls that Article 4(1) of Protocol No 7 only prohibits a duplication or repetition of criminal proceedings (the ‘bis’ criterion). In other words, it is triggered if, and only if, at the time that the second set of criminal proceedings is instituted, the first set has already been concluded by a ‘final (1) decision (2) involving the person’s conviction or acquittal (3)’. 8 Having established that the A and B v Norway doctrine did not apply here, 9 the Court scrupulously dissects and expounds each of the three components of the bis criterion and examines whether the discontinuance order of the lower-ranked public prosecutor falls within it. 10
The Court first deals with the question or whether, and if so to what extent, a judge must be involved for a decision to constitute an acquittal or a conviction. It takes a broad and liberal stance in that respect. The Court notes that the French version of Article 4(1) of Protocol No 7 indicates that the acquittal or conviction must stem from ‘a judgment’, whereas the English version of the same provision does not specify what form the decision should take. In order to resolve this discrepancy between the two equally authentic language versions, the Court then interprets the said provision in the light of its aim and object (as well as the principle of effectiveness) by virtue of Article 33(4) VCLT. It consequently holds – particularly pointing out ‘the crucial role played by Article 4 of Protocol No. 7 in the Convention system and the aim of the right which it secures’ – that, in line with the English version, a decision does not necessarily need to take the form of a judgment to constitute an acquittal or a conviction within the meaning of that provision. 11 What is key, in the Court’s view, to trigger the application of Article 4(1) of Protocol No 7 is that the decision in question has been given by ‘an authority participating in the administration of justice in the national legal system concerned’ – not just a judge or a court – which authority is ‘vested with decision-making power enabling it to examine the merits of a case’. 12 In the instant case, the Court finds that the discontinuance order fulfils the above requirement, because, under Romanian law, the public prosecutor’s office rendering it was called upon to participate in the administration of criminal justice. 13
With respect to the second (substantive) condition that a decision must entail the ‘acquittal’ or ‘conviction’ of the person concerned, the ECtHR observes – with reference to its earlier case law – that that condition is not satisfied in situations of ‘simple’ discontinuance of criminal proceedings ordered by a public prosecutor. However, the Court acknowledges that ‘to date, [it] has never defined in its case law the scope of the expression “acquitted or convicted” or set out any general criteria in that regard’, a gap it seeks to fill in the present judgment. 14 What is required for a decision to amount to an acquittal or conviction is ‘a determination as to the merits of the case’. Put differently, it must involve a decision on criminal responsibility – guilt or innocence – based on ‘an assessment of the circumstances of the case’. 15 When confronted with the question whether such prior assessment took place, one should consider ‘the progress of the proceedings in a given case’. Where a reasoned decision on the accused’s guilt or innocence is adopted after a careful examination of the evidence produced by the criminal investigation, 16 it ‘is likely to’ satisfy the above definition. A fortiori, where the decision orders a penalty ‘it can reasonably be considered’ that a prior assessment of the circumstances was conducted. 17 The Court holds that the order discontinuing proceedings against Mr Mihalache, in casu, did not amount to a purely procedural decision. In the circumstances, including the fact that the order imposed a deterrent and punitive penalty (albeit formally an ‘administrative’ one), the Court finds that a determination on the merits was conducted by the lower-ranking prosecutor and that this amounted to a conviction within the meaning of Article 4(1) Protocol No 7. 18
Lastly, the ECtHR fleshes out the third, more procedural, limb of the bis test: it clarifies when a decision is to be regarded as ‘final’ within the meaning of Article 4(1) of Protocol No 7. As a starting point, the Court considers the classification under domestic law. However, the Court makes it abundantly clear that the question of procedural finality is not exclusively governed by the domestic law of the State concerned. Drawing an express analogy with the Engel criteria, it finds that ‘finality’ must be interpreted autonomously: a decision may be ‘final’ within the meaning of Article 4(1) of Protocol No 7 even where it is not final under domestic law. 19 The Court further recalls, citing its earlier case-law, that this is the case after all ‘ordinary’ remedies against the decision have been exhausted or become time-barred; the fact that ‘extraordinary’ remedies (as classified by the Court) remain available is not relevant. 20
The ECtHR uses two ‘objective’ criteria 21 to draw the line between ‘ordinary’ and ‘extraordinary’ domestic legal remedies; both criteria derive from the principle of legal certainty. 22 The predominate criterion is the ‘foreseeability and accessibility’ of the respective remedies, which is, so it seems, to be understood as a matter pertaining to ‘the quality of the law governing [them]’. More specifically, an ‘ordinary’ remedy (1) should have a legal basis in domestic law which (2) must ‘clearly circumscribe’ the temporal scope of the remedy as well as the other conditions for its exercise. In particular, a clearly delimitated time limit seems to be vital: the Court highlights that, to respect the principle of legal certainty, the remedy ‘must operate in a manner bringing clarity to the point in time when a decision becomes final’. It follows, says the Court, that where a law ‘confers an unlimited discretion on one of the parties to make use of a specific remedy’, the latter cannot be regarded as ‘ordinary’. 23 Moreover, the Court scrutinises the balance of the conditions for exercising the remedy. It notes that a law subjecting a remedy to conditions ‘disclosing a major imbalance between the parties in their ability to avail themselves of it’ would equally run counter to the principle of legal certainty, again rendering the remedy ‘extraordinary’. 24
Applying these principles to the facts of the case, the Court comes to the conclusion that the initial discontinuance decision became a ‘final decision’, within the autonomous meaning of the Convention, on the expiry of the 20-day time limit for an appeal by the applicant, that is, before the higher-ranking prosecutor ordered the reinstatement of criminal proceedings. The review and subsequent reopening by the higher-ranking prosecutor constituted an ‘extraordinary’ remedy, mainly due to the lack of a clearly circumscribed time limit in the Romanian Code of Criminal Procedure. Here, therefore, the reinstatement amounted to a duplication of criminal proceedings according to the Court. 25
The ECtHR brings its analysis to a close by examining whether the higher-raking prosecutor’s decision to resume proceedings falls within the exception set out in Article 4(2) of Protocol No 7. That provision stipulates that a second set of proceedings shall be compatible with the Convention’s ne bis in idem principle if it involves the reopening – rather than duplication strictly speaking – of a case based on one of the justification grounds expressly provided for in Article 4(2) of Protocol No 7. Those include, to the extent that they could affect the outcome of the case, (a) an emergence of new or newly discovered evidence or (b) the detection of a fundamental defect in the previous proceedings. The Court remarks that, as this exception ‘sets a limit on the application of the principle of legal certainty in criminal matters’, both grounds need to be construed restrictively. 26 On the facts, the Court answers this question in the negative. It points out that the higher-raking prosecutor’s decision involved a mere reassessment of the seriousness of the accusations and the adequacy of the penalty, not the rectification a serious breach of a procedural rule, and was based on exactly the same evidence as the initial prosecutor’s. The Court therefore unanimously a violation of Article 4 of Protocol No 7 to the Convention.
Comment
The ne bis in idem principle in criminal matters offers an intriguing perspective from which the relationship between the two main European human rights instruments – the Charter of Fundamental Rights of the EU (the Charter, CFREU) and the European Convention on Human Rights (ECHR) – and the related case law emanating from the CJEU and the ECtHR can be observed. In recent times, we have witnessed a growing attention in academia to the mutual interaction and cross-fertilisation between the Strasbourg and Luxembourg case law in this area. 27
The ne bis in idem dialogue between the ECtHR and CJEU
Legal scholarship has already extensively studied the European ‘ne bis in idem dialogue’ from the standpoint of the CJEU. 28 From a descriptive angle, several scholars have identified striking convergence on substance. A noteworthy example of that interpretative harmonisation can be found in the case law concerning the so-called ‘double-track’ enforcement regimes. In a string of Charter rulings delivered in March 2018 – the Menci, Garlsson and Di Puma trio 29 – the CJEU found that parallel punitive administrative-criminal proceedings and penalties with regard to the same person(s) and for identical offences in the area of VAT and market abuse could constitute a justified interference with the ne bis in idem right under Article 50 CFREU. When reviewing justifiability under Article 52(1) CFREU, and proportionality in particular, the Court considered such a duplication to be ‘strictly necessary’ only if it was sufficiently foreseeable, subject to rules ensuring coordination between the authorities involved and if the severity of all of the penalties imposed corresponded with the seriousness of the offence. 30 That line of reasoning, although framed in a conceptually different manner, largely mirrors the ECtHR’s highly controversial A and B v Norway doctrine. 31 The Strasbourg Court, in that case, redefined the concept of a second prosecution (bis) holding that dual or accumulated punitive administrative and criminal proceedings are presumed to constitute one integrated whole, and hence fall outside the scope of Article 4 Protocol No 7, insofar as ‘a sufficiently close connection in time and substance’ exists between both sets of proceedings. 32 Reference can also be made to the case law, Bonda and Åkerberg Fransson in particular, in which the CJEU invoked Strasbourg’s Engel criteria when interpreting Article 50 CFREU 33 ; yet another example is the CJEU’s understanding of the notion of finality. 34
One can fairly conclude that, with respect to substance, the ECHR remains to a large extent the crucial benchmark when interpreting the ne bis in idem principle in Article 50 CFREU, and by extension in Article 54 of the Convention Implementing the Schengen Agreement (‘CISA’); this is especially so in light of the homogeneity clause laid down in Article 52(3) CFREU. 35 At the same time, it has been observed that formally the influence of the ECHR and ECtHR jurisprudence on the interpretation of those provisions is being downplayed by the CJEU in certain respects. The Luxembourg Court is increasingly omitting direct references to the ECHR and ECtHR jurisprudence in the text of its judgments, or only selectively cites Strasbourg as an afterthought. In other cases, the CJEU seems to prefer a more indirect approach by citing its own prior case law which in fact contains reference(s) to the ECHR. 36 That coincides with a broader tendency in the case law whereby the CJEU aims to preserve the (relative) autonomy of the Charter by relying more and more on the latter instrument as its principal standard of review. 37 Thus, it deliberately prioritises the precedential value of its own jurisprudence (in a ‘self-referential’ way) and, concomitantly, is toning down its citation practice as regards Strasbourg, including by using less robust rhetoric when it does choose to refer to Strasbourg. 38 This is often referred to as ‘Charter-centrism’. The above-described discrepancy, at least from the Luxembourg perspective, tends to result in a somewhat ‘bifurcated picture of judicial dialogue’. 39
From a more evaluative viewpoint, convergence has been widely welcomed on some points while being vehemently opposed on others. In particular, the CJEU’s alignment with the fiercely contested A and B v Norway ruling of the ECtHR has been severely criticised. 40 In general, commentators deplore the decision of the Luxembourg Court to ‘break the upward spiral’ in its interpretation of this pivotal principle and question the Court’s unwillingness to maintain a more extensive level of protection within the EU, pursuant to Article 52(3) CFREU, through the development of an autonomous EU concept of ne bis in idem. 41
The ne bis in idem jurisprudence, however, also provides an excellent case study to uncover and gauge the widely recognised, yet under-researched, 42 two-way nature of the CJEU-ECtHR interplay. 43 One of the prime examples referred to in scholarly works discussing the ECtHR’s receptivity towards CJEU case law and EU law in general is the case of Zolotukhin v Russia. In that case, the ECtHR uniformised its hitherto fluctuating interpretation of the idem component of ne bis in idem and adopted a protective factual approach. In doing so, the Strasbourg Court extensively drew on the case law of (other) international courts, most prominently that of the CJEU. Heavily relying on the Luxembourg Court’s landmark rulings in Van Esbroeck and Kraaijenbrink 44 – as is apparent from voluminous quoting and the use of nearly identical language – the ECtHR removed legal classifications from the definition of the idem concept and designated identity (or ‘sameness’) of the material conduct as the conclusive criterion. 45
Mihalache v Romania through the prism of judicial dialogue: ‘Unionising’ the ne bis in idem jurisprudence of Strasbourg?
In the same vein, the remainder of this article will briefly analyse the ECtHR’s judgment in Mihalache v Romania through the prism of judicial dialogue. 46 In that respect, an EU-centred approach will be adopted. The central question around which the present ECtHR judgment essentially revolves, namely whether and under what conditions a prosecutorial decision amounts to a final acquittal or conviction triggering the application of ne bis in idem, has already been addressed on several occasion by the CJEU under Article 50 CFREU and Article 54 CISA (the latter being read in light of the former). The focus of this article will be descriptive, rather than normative. 47 It aims to chart and accurately map out the influence of CJEU case law on the ECtHR’s interpretation of the ne bis in idem principle in the present judgment as it appears from an analysis of cross-citations and a textual enquiry. 48
Broadening and liberalising the concept of ‘decision’
First of all, substantial influence stemming from the CJEU can be identified with regard to the concept of ‘a decision’ within the meaning of Article 4 of Protocol No 7. In this regard, the CJEU case law is outlined in detail in a separate section of the ECtHR’s judgment. 49 In Gözütok and Brügge, the CJEU already established that – for the purposes of Article 54 CISA – the concept ‘(judicial) decision’ should be construed broadly to include all ‘decisions of an authority required to play a part in the administration of criminal justice in the national legal system concerned’ given, inter alia, the object and purpose of that provision and the need to ensure the principle’s effectiveness. In the view of the Luxembourg Court, the ne bis in idem principle applies to decisions definitively precluding further prosecution, ‘even where such decisions are adopted without the involvement of a court and do not take the form of a judicial decision [i.e. a judgment]’. 50 That includes, for example, relevant decisions taken by public prosecutors. 51 The above formula is repeated almost verbatim in the ECtHR Grand Chamber’s judgment, justified by reference to the object and purpose of Article 4 of Protocol No 7. 52 In a preliminary attempt to categorise, this facet of the ruling represents a clear example of EU law being transplanted into ECHR law and operationalised as a tool to legitimise an expansive and progressive interpretation of Convention concepts raising the overall level of protection. 53 From an evaluative viewpoint, this could therefore plausibly be described as a form of ‘positive (cross-)fertilisation’. 54
The ECtHR’s understanding of ‘acquittal or conviction’: Embracing Luxembourg’s Kossowski case law
Secondly, the ECtHR’s definition of the concepts of ‘acquittal’ and ‘conviction’ are to a certain extent anchored in the Schengen case law of the CJEU.
An analysis of the well-established CJEU case law reveals three criteria that must be cumulatively satisfied for a decision to be deemed ‘final’ for the purpose of the transnational ne bis in idem principle enshrined in Article 54 CISA read in the light of Article 50 CFREU. 55 First and most importantly, the judicial decision concluding the first proceedings must ‘definitively bar’ further prosecution. The CJEU has consistently held that the assessment of this procedural finality is to be carried out in accordance with the law of the Member State that instituted the criminal proceedings. 56 The ne bis in idem principle thus primarily depends on the specific procedural consequences attached to a decision by the national legal order. 57 The Luxembourg Court, however, acknowledges that over-reliance on the notion of procedural finality with the aim of maximising free movement of persons 58 would allow for an abuse of the protection granted by the ne bis in idem principle. It would in fact increase the risk of impunity in scenarios of cross-border criminality where, given the multiplication of extraterritorial competences, multiple states might concurrently claim criminal jurisdiction and (rush to) institute proceedings. Any decision considered final under the domestic law of one of the states asserting its criminal jurisdiction, even if it involved no assessment whatsoever of the allegedly unlawful conduct, would consequently preclude prosecution and penalisation in other jurisdictions which must recognise the final nature of that decision. Such gaps in criminal responsibility would run counter to the security-related objective of the Area of Freedom, Security and Justice (‘AFSJ’) to ‘prevent and [effectively] combat crime’. 59
To fully achieve the competing free movement-related and security-related objectives of the AFSJ expressed in Article 3(2) of the Treaty on the European Union (‘TEU’), the CJEU has adopted an autonomous approach further limiting the ne bis in idem principle. 60 It has done so by attaching two further substantive conditions to the finality requirement articulated in Article 54 CISA. 61 Following the Miraglia line of case law, the decision at stake must, first of all, contain ‘a determination on the merits of the case’. In other words, if the first set of proceedings were discontinued on mere procedural grounds – even if that discontinuation were formally assigned the status of res judicata under national law – this would be insufficient to trigger the application of the transnational ne bis in idem principle. 62 Examples of such decisions include an out-of-court settlement with a prosecutor (Gözütok and Brügge), an acquittal on the grounds of lack of evidence (Van Straaten) or due to prosecution being time-barred (Gasparini) and a decision finding ‘non-lieu’ 63 (M.). Secondly, the Court recently provided a further ‘security-oriented’ elaboration of that substantive condition. 64 In Kossowski, it held that an adequate appraisal on the merits of the case would be seriously impeded in the absence of a sufficiently ‘detailed’ and ‘thorough’ investigation by the competent authority. 65 In other words, a sufficient body of adequate evidence constitutes a minimum threshold which has to be reached in order to consider that a careful substantive examination of the case has occurred. 66 The failure to interview a victim or possible witness serves as a (counter)indication that no such investigation took place according to the CJEU. 67
The definition introduced by Strasbourg in the present judgment of the concept ‘acquittal or conviction’ seems to have incorporated both of the substantive conditions established in the case law of its Luxembourg counterpart. The ECtHR holds that for a decision to constitute an acquittal or conviction, it must involve ‘a determination as to the merits of the case’, which clearly mirrors the formula enunciated first in the CJEU’s Miraglia ruling and consistently used since. The ‘factors’ that are subsequently utilised by the Strasbourg Court to further refine when such a determination on the merits can be presumed to have taken place also clearly reflect CJEU case law. In particular, the Court is said to have ‘imported’ – to use the wording of Judge Pinto de Albuquerque – the Kossowski case law of the CJEU 68 on this point. 69 The references to the ‘progress of the investigations’ and the ‘evidence gathered (…) through the investigations’ suggest that the ‘thorough investigation’ requirement introduced by the CJEU in the latter judgment now also features in Strasbourg’s interpretation of ne bis in idem. That conclusion is further reinforced by the fact that the ECtHR explicitly lists an interview with the victim(s) among the relevant factors, as did the CJEU in Kossowski. As regards the type of influence, EU law is thus relied upon to support the initial (autonomous) interpretation – already, independently, reached by the ECtHR – of a Convention concept as well as to further develop that interpretation. The latter appears to take, to some extent, the shape of a legal transplant. 70
Turning briefly to the normative dimension of this discussion, the extensive borrowing from CJEU jurisprudence is fiercely criticised by Judge Pinto de Albuquerque. In his own words, the Court disregards ‘the intrinsic logic of EU law’ and does not take into account ‘the specificities of CJEU case law on ne bis in idem’. As a consequence, the theoretical foundation of the definition of the concepts ‘acquittal’ and ‘conviction’, at least to the extent that it flows from that comparative legal analysis, is ‘fragile’, that is to say, not normatively sound. He points out that the ECtHR ignores the fact that the CJEU’s interpretation of Article 54 CISA is conditioned by its multi-jurisdictional or EU-wide scope of application and driven by the AFSJ rationales of enhancing free movement of persons and preventing impunity. It is, in his view, incorrect to transpose the CJEU’s interpretation of Article 54 CISA to Article 4 of Protocol No 7, because the objectives pursued by the former provision are different from and, as regards the aim to prevent impunity, even contradict the ones of the customary international law principle of ne bis in idem as enshrined in the latter provision of the Convention. 71
That is all the more problematic, he continues, because this (in his view unjustified) reliance on CJEU case law does not raise but rather lowers the level of protection afforded under Article 4 of Protocol No 7; the introduction of the ‘casuistic and easy-to-manipulate’ concept of thorough investigations offers minimal legal certainty and might even lend itself to abuse by state authorities. 72 He opines that Luxembourg case law is used as a source of legitimation for a more efficiency-oriented, restrictive and enhanced punitive approach towards the ne bis in idem principle: in short, an understanding of the principle that ‘maximises state repression’. It should, therefore, be described as a form of ‘negative (cross-)fertilisation’. 73
Conclusion
The Grand Chamber judgment in Mihalache v Romania provides welcome clarification on the scope of Article 4 of Protocol No 7, especially through its meticulous elaboration of the multifaceted expression ‘a decision entailing final acquittal or conviction’. Despite some aspects of the ECtHR’s reasoning only being subscribed to by a minority, the ruling makes some major innovations. These include the Court’s updated interpretation of the concept of ‘decision’, its first-ever definition of the substantive concepts ‘acquittal’ and ‘conviction’, and a contentious attempt to fine-tune the criteria determining a decision’s ‘finality’.
At the same time, the judgment exemplifies once more that a dynamic dialogue on the ne bis in idem principle continues to manifest itself between Europe’s two human rights adjudicators, the ECtHR and the CJEU. It is a particularly revealing example of how CJEU jurisprudence in the sphere of criminal law can translate into Strasbourg doctrines.
Footnotes
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
