CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 8 juillet 2019

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margin-bottom:0pt; font-size:10pt } .sB0F93B35 { margin-top:0pt; margin-left:7.1pt; margin-bottom:0pt; text-indent:-7.1pt; font-size:10pt } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .s2D3BC823 { font-family:Arial; font-style:italic; text-decoration:underline; color:#0069d6 } .s391E78BA { font-family:Arial; background-color:#ffffff } .s3DB046A9 { font-family:Arial; font-style:italic; background-color:#ffffff } .s8A4FD1F { margin-top:0pt; margin-left:36pt; margin-bottom:0pt; font-size:10pt }       GRAND CHAMBER             CASE OF MIHALACHE v. ROMANIA   (Application no. 54012/10)                     JUDGMENT     STRASBOURG   8 July 2019           This judgment is final but it may be subject to editorial revision.   In the case of Mihalache v. Romania, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Guido Raimondi, President,   Angelika Nußberger,   Linos-Alexandre Sicilianos,   Robert Spano,   Vincent A. De Gaetano,   Ganna Yudkivska,   Paulo Pinto de Albuquerque,   Helen Keller,   Egidijus Kūris,   Iulia Antoanella Motoc,   Branko Lubarda,   Stéphanie Mourou-Vikström,   Georges Ravarani,   Georgios A. Serghides,   Marko Bošnjak,   Péter Paczolay,   María Elósegui, judges, and Søren Prebensen, Deputy Grand Chamber Registrar, Having deliberated in private on 3 October 2018 and 29 April 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 54012/10) against Romania lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national, Mr Aurelian-Erik Mihalache (“the applicant”), on 10   September 2010. 2.     The applicant, who had been granted legal aid, was represented by Mr   M. Bratu, a lawyer practising in Focşani. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs. 3.     The applicant alleged that he had been tried and convicted twice for the same offence and that there had been a violation of Article 4 of Protocol No.   7 to the Convention on that account. 4.     The application was allocated to the Third Section of the Court (Rule   52 § 1 of the Rules of Court). On 19 June 2013 notice of the complaint under Article 4 of Protocol No. 7 to the Convention was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3. Subsequently, the application was allocated to the Fourth Section of the Court. On 27 March 2018 a Chamber of that Section, composed of Ganna Yudkivska, President, Paulo Pinto de Albuquerque, Egidijus Kūris, Iulia Antoanella Motoc, Georges Ravarani, Marko Bošnjak and Péter Paczolay, judges, and also Marialena Tsirli, Section Registrar, decided to relinquish jurisdiction in favour of the Grand Chamber, none of the parties having objected (Article 30 of the Convention and Rule 72). 5.     The composition of the Grand Chamber was determined in accordance with the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24. 6.     The applicant and the Government each filed a memorial on the admissibility and merits of the case. 7.     A hearing took place in public in the Human Rights Building, Strasbourg, on 3 October 2018 (Rule 71 and Rule 59 § 3). There appeared before the Court: (a)     for the Government Ms   C. Brumar, Ministry of Foreign Affairs,   Agent , Ms   S.D. Popa, Deputy to the Permanent Representative of Romania to the Council of Europe, Adviser ; (b)     for the applicant Mr   M. Bratu , lawyer,   Counsel .   The Court heard addresses by Ms Brumar, Ms Popa and Mr Bratu, and their replies to questions from judges. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 8.     The applicant was born in 1975 and lives in Tulnici. 9.     During the night of 2 to 3 May 2008 the applicant was stopped by the police while driving on the public highway, as a preventive control measure . He underwent a breath test. As the test appeared to be positive, the police officers asked the applicant to accompany them to a hospital to give a biological sample in order to establish his blood alcohol level. The applicant refused. 1.     Opening of criminal proceedings against the applicant 10.     In a decision ( rezoluţie ) of 17 July 2008 the public prosecutor’s office at the Focşani District Court instituted criminal proceedings against the applicant for refusing to give a biological sample in order to determine his blood alcohol level, an offence provided for and punishable under Article 87 § 5 of Government Emergency Ordinance no.   195/2002 on road traffic (“Ordinance no.   195/2002”). 11 .     After being questioned by the public prosecutor, the applicant admitted that he had consumed alcohol and had refused to give a biological sample. 12.     Evidence was also heard from a witness, G.D. 2.     Discontinuance of criminal proceedings against the applicant and imposition of an administrative penalty 13 .     In an order of 7 August 2008 based on Article 10 (b 1 ) and Article 11 of the Code of Criminal Procedure (“the CCP”) in conjunction with Article   91 of the Criminal Code, as in force at the material time, the public prosecutor’s office discontinued the criminal proceedings against the applicant ( scoaterea de sub urmărire penală ). In accordance with the aforementioned legal provisions, a prosecution could not be brought unless the act committed was serious enough to constitute a criminal offence (see paragraph 33 below). The prosecutor stated the following: “Given that it appears from the criminal case file that in the present case the provisions of Article 10 (b 1 ) of the CCP are applicable, since the act committed does not attain the [degree of] danger to society of a criminal offence, and that the infringement of social values protected by the law was minimal; Having regard to the honesty of the perpetrator ( făptuitor ), to the fact that he was driving on a day when there was little road traffic, to the short distance driven and to the fact that [he] was being prosecuted for the first time; [I HEREBY] ORDER: The discontinuance of the criminal proceedings ( scoaterea de sub urmărire penală ) against the suspect for the acts set out in Article 87 § 5 of Government Emergency Ordinance no.   195/2002 ... and the imposition of an administrative penalty consisting of a fine of 1,000 Romanian lei (RON) [approximately 250 euros (EUR)], to be enforced pursuant to the provisions of Article 441 1 of the CCP in conjunction with Article 442 of the CCP. Court fees of RON 20 [approximately EUR 5] ... are payable by the suspect and will be levied in accordance with [the provisions] of Article 443 CCP. The suspect shall be notified of the decision.” 14.     The order issued by the public prosecutor’s office on 7 August 2008 (see paragraph 13 above) was not challenged by means of a remedy such as an appeal under Article 249 1 of the CCP (see paragraph 34 below). 15 .     There is no indication in the case file of the precise date on which the applicant was notified of the order of 7 August 2008. In any event, he took cognisance of its contents and on 15 August 2008 paid the fine and the court fees. He submitted the receipts confirming payment of those sums as evidence in the criminal proceedings. 3.     Setting aside by the higher-ranking prosecutor’s office of the order discontinuing the criminal proceedings 16.     In an order of 7 January 2009, relying on Article   270 § 1 and Article   273 § 2 of the CCP as in force at the material time (see paragraph 34 below), the public prosecutor’s office at the Vrancea County Court, as the higher-ranking prosecutor’s office in relation to the public prosecutor’s office at the Focşani District Court, set aside the order of 7 August 2008 (see paragraph 13 above) of its own motion. 17.     In the order of 7 January 2009 the public prosecutor’s office at the Vrancea County Court gave the following reasons: “Following an examination of the evidence on file, it must be concluded that in view of the degree of general and specific danger to society associated with the acts committed, the type of the social values disregarded by the suspect and the specific circumstances in which he committed the acts, the administrative penalty imposed was not justified. The suspect justified his firm refusal to give a biological sample in order to determine his blood alcohol level by the fact that before being stopped by the police he had consumed alcoholic beverages. The statement written by the suspect himself indicated that he had acted in this manner [refusing to give the sample] ‘because of his intoxicated state’, a circumstance that emphasises the danger posed to society by the acts and by the suspect himself, who nevertheless was not appropriately punished. The act committed by the suspect entails a high degree of danger to society, which the law itself intended to penalise more severely than other road traffic offences, with the aim of preventing the commission of more serious acts causing physical injury or material damage; because the real reason for refusing to give biological samples is, precisely, the sometimes excessive consumption of alcoholic beverages which may also give rise to criminal liability for other, more serious consequences. The high upper limits and the nature of the criminal penalty (exclusively imprisonment, excluding any kind of fine) highlight the intention of the law to severely punish anyone committing such reprehensible acts. That being the case, the administrative fine imposed on the suspect Erik Aurelian Mihalache does not fulfil the preventive aim pursued by the law. It should be borne in mind that the suspect, who was in a manifestly intoxicated state while driving a motor vehicle, was about to go to a discothèque in the village of Lepsa (a place where alcohol is frequently consumed), and the consequences of his acts could have been even worse than he realises. Having regard to all those circumstances, the imposition of an administrative penalty was unjustified ( nejustificată ). Accordingly, the decision to discontinue proceedings in the case is set aside, and the criminal proceedings [are to be] reopened in order to continue the investigation and prepare the case for trial. Having regard also to the provisions of Article 273 § 2 and Article 270 § 1   (c) of the CCP, [I HEREBY] ORDER 1.     the setting aside of the decision taken in the present case ...; 2.     the quashing of the administrative penalty of a 1,000 lei fine imposed on the suspect Erik Aurelian Mihalache for having committed the offence defined in Article   87 § 5 of Ordinance no. 195/2002, as well as the order for him to pay court fees of 20 lei to the State ; 3.     the   reopening of the criminal proceedings against the suspect Erik Aurelian Mihalache for having committed the offence defined in Article 87 § 5 of Ordinance no.   195/2002 and the continuation of the investigation in accordance with this order ; 4.     the return of the case file to the public prosecutor’s office at the Focşani District Court in order to execute [the present order]. ” 18.     The case file was sent back to the public prosecutor’s office with a view to continuing the criminal investigation in respect of the applicant. 4.     The applicant’s committal for trial and criminal conviction 19.     On 18 February 2009 the applicant was informed of the reopening of the criminal proceedings and questioned about the charges against him. On 19   February 2009 the public prosecutor presented the applicant with the criminal file. The applicant confessed to having committed the acts of which he stood accused, and did not seek to adduce any further evidence. 20.     The witness G.D. gave a statement. 21.     In an indictment of 24 March 2009 the public prosecutor’s office committed the applicant for trial on charges of refusing to give a biological sample for determining his blood alcohol level. The indictment stated that during the night of 2 to 3 May 2008, at around 1 a.m., the applicant had been stopped by the police while driving on the public highway, as a preventive control measure. As the breath test had appeared to be positive the police officers had asked the applicant to accompany them to a hospital to give a biological sample in order to establish his blood alcohol level, but the applicant had refused to do so. The indictment cited in evidence the report of the discovery of the offence, the applicant’s confession, G.D.’s witness statement, and the document informing the applicant of the accusations against him and his defence rights. 22.     In a judgment of 18 November 2009, having assessed the evidence in the file, the Focşani District Court sentenced the applicant to one year’s imprisonment, suspended, on the charges set out in the indictment. Analysing the factual circumstances of the case, it held that a shorter sentence than the statutory minimum was sufficient. 23.     In a judgment of 10 February 2010 the Vrancea County Court dismissed an appeal by the applicant against the aforementioned judgment. 24.     The applicant lodged an appeal on points of law ( recurs ) against that judgment. He submitted, inter alia , that the referral of his case to the District Court had been incurably null and void because it was in breach of the ne bis in idem principle. He argued that in its order of 7 August 2008 the public prosecutor’s office had discontinued the criminal proceedings against him and imposed an administrative fine on him, thus terminating the criminal investigation. Subsequently, the public prosecutor’s office at the Vrancea County Court had wrongfully set aside the discontinuance order of its own motion, and no appeal had been lodged against the order of 7   August 2008 under Article 249 1 § 3 of the CCP (see paragraph 14 above and paragraph 34 below). 25 .     In a final judgment of 14 June 2010 the Galați Court of Appeal dismissed the applicant’s appeal on points of law against the judgment delivered on appeal and confirmed that it was well-founded. As regards the applicant’s plea alleging non-compliance with the ne bis in idem principle, the Court of Appeal held: “Pursuant to Article 4 § 1 of Protocol No. 7 to the European Convention on Human Rights, no one may 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. This principle is also set out in the Romanian Code of Criminal Procedure, Article   10 § 1 (j) of which provides that criminal proceedings cannot be instituted or continued where there has been a decision constituting res judicata . Therefore, in order for the defendant to be entitled to rely on a breach of the ne bis in idem principle, a previous set of proceedings must have been concluded with a final judgment entailing a conviction or acquittal. However, the order of 7 August 2008 by which the public prosecutor closed the criminal proceedings cannot be characterised as a judicial decision constituting res judicata , since this is not equivalent to a final judgment ( hotărâre judecătorească ). The public prosecutor’s right to resume criminal proceedings where they have been reopened, pursuant to Article 270 § 1 (c) and Article 273 § 1 of the Code of Criminal Procedure, is not subject to any time-limit or to the absence of a complaint against the discontinuance order, such that the reopening of the criminal proceedings against the defendant Erik Aurelian Mihalache on the basis of the order of 7 January 2009 complied with the relevant legal provisions. Noting, on the one hand, that the ne bis in idem principle is immaterial to the present case, and on the other, that the criminal proceedings were resumed and conducted in compliance with the [statutory provisions], the court rejects the defendant’s arguments to the effect that the referral of the case to the District Court was incurably null and void.” 26.     With regard to the applicant’s criminal responsibility, the Court of Appeal held that, according to the evidence in the file, the lower courts had correctly determined the facts, their legal classification and the corresponding sentence. 5.     Other factual information relevant to the case (a)     Survey on the application of Article 18 1 of the Criminal Code 27 .     On 17 January 2013 the Prosecutor General of Romania issued a memorandum to all public prosecutors’ offices across the country asking them to investigate how the provisions of Article 18 1 of the Criminal Code were applied, inter alia , to road traffic offences. The memorandum sought to identify the criteria used by the courts and public prosecutors’ offices to assess the degree of danger to society associated with a particular act, and referred specifically to the offences set out in Ordinance no. 195/2002. The Prosecutor General also invited the lower-level public prosecutors’ offices to send him the results of the reviews which they had carried out in 2011 and 2012 and the measures ordered following the reviews. According to the memorandum, the aim of the exercise was to identify the criteria used to justify the application of Article 18 1 of the Criminal Code by the courts and public prosecutors’ offices. (b)     Steps required to be taken by the applicant to secure reimbursement of sums paid by way of execution of the order of 7 August 2008 28.     On 10 March 2013 the Chief Prosecutor of the Focşani public prosecutor’s office requested the tax authorities to reimburse the fine paid by the applicant pursuant to the order of 7 August 2008 (see paragraph   15 above). 29.     On 3 October 2013 the public prosecutor’s office informed the Vrancea Directorate General of Public Finance (“DGFP”) that the amounts paid by the applicant pursuant to the order of 7 August 2008 were to be reimbursed to him. On 4 October 2013 a police officer went to the applicant’s home to inform him that he had to submit a request to the Vrancea DGFP in order to secure reimbursement of the amounts paid in respect of the administrative fine and the court fees. The applicant signed the record drawn up on that occasion. 30.     According to the documents in the file, the applicant has not asked to be reimbursed the sums paid. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     The Constitution 31.     Article 132 § 1 of the Constitution, on the status of public prosecutors, reads as follows : “Public prosecutors shall carry out their activity in accordance with the principles of legality, impartiality, and hierarchical supervision under the authority of the Minister of Justice. ” B.     Government Emergency Ordinance no. 195/2002 32 .     The relevant provisions of Government Emergency Ordinance no.   195/2002 on road traffic (“Ordinance no. 195/2002”) read as follows: Chapter I General provisions Article 1 “1.     Road traffic involving vehicles, pedestrians and other categories of [road] users, the rights, obligations and responsibilities of natural and legal persons, and the powers of certain public authorities, institutions and organisations, are governed by the provisions of the present emergency ordinance. 2.     The provisions of this emergency ordinance are designed to ensure a safe traffic flow on public roads, and to protect the lives, physical integrity and health of [road] users or anyone in the vicinity of public roads, [and] to protect the legitimate rights and interests of those persons, of public and private property and of the environment. ... 5.     The provisions of the present emergency ordinance shall be applicable to all [road] users, and to the authorities vested with powers in the spheres of road traffic and safety and environmental protection.” Chapter VI Offences and penalties Article 84 “A failure to comply with road traffic provisions that entails all the constituent elements of a criminal offence shall give rise to criminal responsibility and be punished in accordance with this emergency ordinance.” Article 87 § 5 “The refusal ... by a driver of a motor vehicle ... to give a biological sample or to submit to a test of exhaled air in order to establish blood alcohol level or the presence of narcotic products or substances or drugs with similar effects, shall be punished by a sentence of between two and seven years’ imprisonment.” C.     The Criminal Code 33 .     The provisions of the Criminal Code in force at the material time which are relevant to the present case were worded as follows: Article 17 “A criminal offence is an act which poses a danger to society, is committed with culpable intent ( vinovăţie ) and is provided for by criminal law. Only a criminal offence may constitute grounds for criminal liability.” Article 18 “An act posing a danger to society for the purposes of the criminal law shall be understood as any action or inaction which undermines one of the values mentioned in Article 1 and which requires the imposition of a penalty. ” Article 18 1 “1.     An act punishable by criminal law shall not constitute a criminal offence if, in view of its minimal interference with one of the values safeguarded by criminal law and the manifestly insignificant nature of its specific content, it does not attain the degree of danger to society associated with a criminal offence. 2.     In determining the degree of danger to society, account must be taken of the manner and means by which the act was committed, the aim pursued, the circumstances in which the act was committed, the result which was produced or could have been produced, and the person and conduct of the perpetrator, if known. 3.     In the case of such an act, the public prosecutor or the court shall impose one of the administrative penalties provided for in Article 91. ” Article 91 “Where a court has recourse to [another form of liability] instead of criminal liability, it shall order one of the following administrative penalties: ... (c)     a fine of between 10 lei and 1,000 lei.” Article 141 “‘Criminal law’ shall be understood as referring to any criminal provision set forth in laws or decrees.” D.     The Code of Criminal Procedure 34 .     The relevant provisions of the CCP as in force at the material time were as follows: Article 10 “1.     Criminal proceedings cannot be instituted or continued if: ... (b 1 )     the act did not attain the degree of danger required to be classified as a criminal offence;   ... (g)     the offence is statute-barred ...; ... (j)     [a prior decision] has become res judicata ...” Article 11 “Where one of the cases set out in Article 10 is observed: 1.     during the criminal proceedings, the public prosecutor, on an application by the prosecuting authority or proprio motu , shall order: ... (b)     the discontinuance of the proceedings ( scoaterea de sub urmărire ) in favour of the suspect or accused in the cases set out in Article 10 (a) to (e). ...” Article 22 § 1 “The final decision given by the criminal court shall constitute res judicata before the civil court adjudicating the civil claim, as regards the existence of the facts, the perpetrator and the latter’s guilt.” Article 229 The suspect “The suspect is a person who is the subject of a criminal investigation, until such time as a prosecution is brought.” Article 246 “1.     A copy of the discontinuance order ... shall be transmitted to the ... suspect or accused ....” Article 249 “1.     Criminal proceedings shall be discontinued ( scoaterea de sub urmărirea penală ) where one of the cases listed in Article 10 (a) to (e) is observed and where there is a suspect or accused person in the case. ... 3.     In the case mentioned in Article 10 (b 1 ), the public prosecutor shall decide by means of an order.” Article 249 1 “... 3.     An order concerning the discontinuance of proceedings on the basis of Article   10   (b 1 ) may be the subject of an appeal ( plîngere ) within twenty days of the date on which the notification provided for in Article 246 has taken place. 4.     An order imposing an administrative fine shall be enforced on expiry of the term specified in paragraph 3 above or, where an appeal ( plîngere ) has been lodged and dismissed, after the dismissal of that appeal.” Article 262 “Where the public prosecutor finds that the statutory provisions ensuring the discovery of the truth have been complied with, that the criminal proceedings have been completed and that the necessary evidence has been lawfully examined, he or she shall, as appropriate: ... 2.     issue an order by which: (a)     the criminal proceedings are closed ( clasează ), discontinued ( scoate de sub urmărire ) or terminated ( încetează ) in accordance with the provisions of Article 11. Where the public prosecutor discontinues the proceedings on the basis of Article 10 (b 1 ), he or she shall apply Article 18 1 § 3 of the Criminal Code; ... ” Article 270 “1.     Criminal proceedings shall be resumed in the event that: ... (c)     the criminal proceedings have been reopened...” Article 273 “1.     The public prosecutor may order the reopening of criminal proceedings if, following [a decision] discontinuing the proceedings ( scoaterea de sub urmărirea penală ), it is established that the grounds on which the previous decision was based did not actually exist or no longer exist. ... 2.     Proceedings shall be reopened following an order by the public prosecutor to that effect.” Article 275 “Any person may lodge a complaint in respect of measures and decisions taken during criminal investigation proceedings, if these have harmed his or her legitimate interests ...” Article 278 “Complaints against measures or decisions taken by a prosecutor or implemented at the latter’s request shall be examined by ... the chief prosecutor in the relevant department ....” Article 278 1 “1.     Following the dismissal by the prosecutor of a complaint lodged in accordance with Articles 275 to 278 in respect of the discontinuation of a criminal investigation ... through a decision not to prosecute ( neurmărire penală ) ..., the injured party, or any other person whose legitimate interests have been harmed, may complain within twenty days following notification of the impugned decision, to the judge of the court that would normally have jurisdiction to deal with the case at first instance ...” Article 415 “1.     Judgments of criminal courts ( hotărîrile instanţelor ) shall be enforceable on the date on which they become final. 2.     Non-final judgments shall be enforceable [where explicitly provided for by law].” Article 441 1 “... [T]he penalty of a fine shall be imposed as laid down in Articles 442 and 443. ” Article 442 “The judicial body imposing a fine shall ensure that it is enforced. Judicial fines shall be enforced by sending a copy of the relevant section of the operative part of the judgment imposing the fine to the authority responsible by law for enforcing criminal fines. Judicial fines shall be enforced by the authority mentioned in the previous paragraph.” Article 443 “... Where the obligation to pay court fees advanced by the State is imposed by order, it shall be enforced by the public prosecutor, in accordance with ... the provisions of Article 442 § 2.” 35 .     The Government produced examples of case-law to the effect that only court judgments constitute res judicata , and not decisions taken by the public prosecutor before the case is referred to a court, such as, for instance, an order discontinuing criminal proceedings (judgment no. 346 of 30   January 2015 of the High Court of Cassation and Justice and a decision given on 14   November 2017 by the Bucharest Court of Appeal). III.     EXPLANATORY REPORT ON PROTOCOL No. 7 TO THE CONVENTION 36 .     The Explanatory Report on Protocol No. 7 was prepared by the Steering Committee for Human Rights and submitted to the Committee of Ministers of the Council of Europe. It explains from the outset that the text of the report itself “does not constitute an instrument providing an authoritative interpretation of the Protocol, although it might be of such a nature as to facilitate the application of the provisions contained therein”. 37 .     The parts of the report of relevance to the present case read as follows: “22.     ... According to the definition contained in the explanatory report of the European Convention on the International Validity of Criminal Judgments, a decision is final “if, according to the traditional expression, it has acquired the force of res judicata . This is the case when it is irrevocable, that is to say when no further ordinary remedies are available or when the parties have exhausted such remedies or have permitted the time-limit to expire without availing themselves of them. ... Article 4 ... 27.     The words ‘under the jurisdiction of the same State’ limit the application of the article to the national level. Several other Council of Europe conventions, including the European Convention on Extradition (1957), the European Convention on the International Validity of Criminal Judgments (1970) and the European Convention on the Transfer of Proceedings in Criminal Matters (1972), govern the application of the principle at international level. ... 29.     The principle established in this provision applies only after the person has been finally acquitted or convicted in accordance with the law and penal procedure of the State concerned. This means that there must have been a final decision as defined above, in paragraph 22. 30.     A case may, however, be reopened in accordance with the law of the State concerned if there is evidence of new or newly discovered facts, or if it appears that there has been a fundamental defect in the proceedings, which could affect the outcome of the case either in favour of the person or to his detriment. 31.     The term ‘new or newly discovered facts’ includes new means of proof relating to previously existing facts . Furthermore, this article does not prevent a reopening of the proceedings in favour of the convicted person and any other changing of the judgment to the benefit of the convicted person.” IV.     RELEVANT INTERNATIONAL-LAW MATERIAL 38.     Article 14 § 7 of the United Nations Covenant on Civil and Political Rights is worded as follows: “No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.” 39 .     The 1969 Vienna Convention on the Law of Treaties provides: Article 31 General rule of interpretation “1.     A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2.     The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: ( a )     Any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; ( b )     Any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3.     There shall be taken into account, together with the context: ( a )     Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; ( b )     Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; ( c )     Any relevant rules of international law applicable in the relations between the parties. 4.     A special meaning shall be given to a term if it is established that the parties so intended.” Article 32 Supplementary means of interpretation “Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: ( a )     Leaves the meaning ambiguous or obscure; or ( b )     Leads to a result which is manifestly absurd or unreasonable.” Article 33 Interpretation of treaties authenticated in two or more languages “1.     When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail. 2.     A version of the treaty in a language other than one of those in which the text was authenticated shall be considered an authentic text only if the treaty so provides or the parties so agree. 3.     The terms of the treaty are presumed to have the same meaning in each authentic text. 4.     Except where a particular text prevails in accordance with paragraph 1, when a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.” V.     EUROPEAN UNION LAW AND CASE-LAW OF THE COURT OF JUSTICE OF THE EUROPEAN UNION 40.     Article 50 of the Charter of Fundamental Rights of the European Union as adopted on 12 December 2007 provides: “No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.” 41.     Article 54 of the Convention implementing the Schengen Agreement (CISA) of 14 June 1985 provides as follows: “A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party.” 42.     The judgment delivered by the Court of Justice of the European Communities on 11 February 2003 in Hüseyin Gözütok and Klaus Brügge (joined cases C-187/01 and C-385/01, EU:C:2003:87, § 31) states that “(t)he fact that no court is involved in such a procedure and that the decision in which the procedure culminates does not take the form of a judicial decision does not cast doubt on that interpretation”, that is to say does not prevent the application of the ne bis in idem principle. 43.     In its judgment in Piotr Kossowski v. Generalstaatsanwaltschaft Hamburg of 29 June 2016, the Court of Justice of the European Union (CJEU; (Grand Chamber), ECLI:EU:C:2016:483) explained the concept of a person whose trial has been “finally disposed of” as follows: “34.     For a person to be regarded as someone whose trial has been ‘finally disposed of’ within the meaning of Article   54 of the CISA, in relation to the acts which he is alleged to have committed, it is necessary, in the first place, that further prosecution has been definitively barred (see, to that effect, judgment of 5   June 2014 in   M , C ‑ 398/12, EU:C:2014:1057, paragraph   31 and the case-law cited). 35 .     That first condition must be assessed on the basis of the law of the Contracting State in which the criminal-law decision in question has been taken. A decision which does not, under the law of the Contracting State which instituted criminal proceedings against a person, definitively bar further prosecution at national level cannot, in principle, constitute a procedural obstacle to the opening or continuation of criminal proceedings in respect of the same acts against that person in another Contracting State (see, to that effect, judgments of 22   December 2008 in   Turanský , C ‑ 491/07, EU:C:2008:768, paragraph   36, and 5   June 2014 in   M , C ‑ 398/12, EU:C:2014:1057, paragraphs   32 and 36). 36.     The order for reference indicates that, in the case in the main proceedings, under Polish law the decision of the Kołobrzeg District Public Prosecutor’s Office terminating the criminal proceedings precludes any further prosecution in Poland. ... 38.     As regards the fact that (i) the decision at issue in the main proceedings was taken by the Kołobrzeg District Public Prosecutor’s Office in its capacity as a prosecuting authority and (ii) no penalty was enforced, neither of those factors is decisive for the purpose of ascertaining whether that decision definitively bars prosecution. 39 .     Article   54 of the CISA is also applicable where an authority responsible for administering criminal justice in the national legal system concerned, such as the Kołobrzeg District Public Prosecutor’s Office, issues decisions definitively discontinuing criminal proceedings in a Member State, although such decisions are adopted without the involvement of a court and do not take the form of a judicial decision (see, to that effect, judgment of 11 February 2003 in   Gözütok and Brügge , C ‑ 187/01 and C ‑ 385/01, EU:C:2003:87, paragraphs   28 and 38). 40 .     As regards the absence of a penalty, the Court observes that it is only where a penalty has been imposed that Article   54 of the CISA lays down the condition that the penalty has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the Contracting State of origin. 41 .     The reference to a penalty cannot therefore be interpreted in such a way that the application of Article   54 of the CISA is   – other than in a case in which a penalty has been imposed   – subject to an additional condition. 42 .     In order to determine whether a decision such as that at issue in the main proceedings constitutes a decision finally disposing of the case against a person for the purposes of Article   54 of the CISA, it is necessary, in the second place, to be satisfied that that decision was given after a determination had been made as to the merits of the case (see, to that effect, judgments of 10   March 2005 in   Miraglia , C ‑ 469/03, EU:C:2005:156, paragraph   30, and 5   June 2014 in   M , C ‑ 398/12, EU:C:2014:1057, paragraph   28). 43 .     It is necessary, for that purpose, to take into account both the objective of the rules of which Article   54 of the CISA forms part and the context in which it occurs (see, to that effect, judgment of 16   October 2014 in   Welmory , C ‑ 605/12, EU:C:2014:2298, paragraph   41 and the case-law cited). ... 47.     Therefore, the interpretation of the final nature, for the purposes of Article   54 of the CISA, of a decision in criminal proceedings in a Member State must be undertaken in the light not only of the need to ensure the free movement of persons but also of the need to promote the prevention and combating of crime within the area of freedom, security and justice. 48 .     In view of the foregoing considerations, a decision terminating criminal proceedings, such as the decision in issue before the referring court – which was adopted in a situation in which the prosecuting authority, without a more detailed investigation having been undertaken for the purpose of gathering and examining evidence, did not proceed with the prosecution solely because the accused had refused to give a statement and the victim and a hearsay witness were living in Germany, so that it had not been possible to interview them in the course of the investigation and had therefore not been possible to verify statements made by the victim   – does not constitute a decision given after a determination has been made as to the merits of the case. ...” THE LAW I.     ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7 TO THE CONVENTION 44.     The applicant complained that he had been tried and convicted twice in criminal proceedings for the same offence, in breach of Article 4 § 1 of Protocol No. 7. He also submitted that the reopening of the proceedings against him had not been in conformity with the criteria set out in Article 4 §   2. Article 4 of Protocol No. 7 to the Convention provides : “1.     No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State. 2.     The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case. 3.     No derogation from this Article shall be made under Article 15 of the Convention.” 45.     The Government contested that argument. A.     Admissibility 46.     In the Court’s view, the application raises complex issues of fact and Convention law, such that it cannot be rejected on the ground of being manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds, and must therefore be declared admissible. B.     Merits 47 .     The Court reiterates that the guarantee enshrined in Article 4 of Protocol No. 7 occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible under Article 15 of the Convention in time of war or other public emergency. 48.     The protection against duplication of criminal proceedings is one of the specific safeguards associated with the general guar