CEDH · CASELAW;ADVISORYOPINIONS;PROTOCOL16;PANELREFUSALS;ENG — 19 février 2024

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P16-2023-002 19.2.2024 [Panel of the Grand Chamber] Legal summary Article   4 of Protocol No.   7 Right not to be tried or punished twice Advisory opinion request in respect of a discontinuance order by a public prosecutor did not concern an issue on which the requesting court would need the Court’s guidance: request rejected Background and questions – The request was submitted by a panel of the Criminal Chamber of the Supreme Court of Estonia in the context of an appeal before it by a mayor who had been convicted of embezzlement and wilful breach of public procurement rules. At the pre-trial stage a district prosecutor had decided to terminate the proceedings in respect of the latter charge, but a senior prosecutor subsequently revoked that decision. The defendant was then committed for trial on both charges and convicted at first and second instance. Throughout the proceedings the defendant had argued unsuccessfully that the proceedings against him in respect of the charge of wilful breach of public procurement rules contravened the ne bis in idem principle. He reiterated that argument in his appeal on points of law to the Supreme Court which stayed the proceedings before it and asked for guidance from the Court. The questions asked in the request for an advisory opinion were worded as follows: “1) Can acquittal within the meaning of Article   4 §   1 of Protocol No.   7 to the [Convention] be interpreted as including an order issued by the prosecutor’s office, by which – after assessment on the merits of the facts concerning a suspicion of a criminal offence and the evidence relating thereto – pre-trial criminal proceedings are terminated because the prosecutor’s office believes that the accused has not committed the offence or the act committed by the accused does not correspond to the elements of a criminal offence? 2) If the answer to the above question is affirmative, then is such an acquittal, delivered in the form of an order from the prosecutor’s office, final within the meaning of Article   4 §   1 of Protocol No.   7 to the [Convention] if parties to the proceedings can no longer challenge the order while the law confers on a higher-ranking prosecutor the right – until expiry of the limitation period of the criminal offence – to revoke, on their own initiative, the order on termination of criminal proceedings?” Decision – The Court noted that the request fulfilled the first, third and fourth conditions under Article   1 of Protocol No.   16. The only remaining issue was thus whether the request met the second condition for acceptance, that is, whether it concerned “questions of principle” (Article   1 §   1) which on account of their nature, degree of novelty and/or complexity or otherwise concerned an issue on which the requesting court would need the Court’s guidance. The requesting court essentially asked whether the discontinuance of the criminal proceedings by a district prosecutor had amounted to an acquittal and, if so, whether it should be regarded as final. As could be seen from an overview of the Court’s case-law, the discontinuance of criminal proceedings by a public prosecutor did not amount to either a conviction or an acquittal, and that Article   4 of Protocol No.   7 was therefore not applicable in such a situation. The Court had first taken that position in its decision in Smirnova and Smirnova v.   Russia, and had consistently affirmed it since then, including in the Grand Chamber judgment in Mihalache v.   Romania, in which had laid down some general principles for determining the scope of the concepts of acquittal and conviction for the purposes of Article   4 of Protocol No.   7. The issue was now seen by the Court as being the subject of well-established case-law. The discontinuance at issue in the case pending before the requesting court did not involve any special prosecutorial situation which would call for any further elaboration by the Court of the principles developed in that case-law. The Court concluded that the request did not concern a question of principle within the meaning of Article   1 §   1 of Protocol No.   16, warranting examination by the Court’s Grand Chamber and, accordingly, decided not to accept it. (See also Smirnova and Smirnova v.   Russia (dec.), 46133/99 and 48183/99, 2   October 2002, Legal Summary ; Sundqvist v.   Finland (dec.), 75602/01 , 22   November 2005; Harutyunyan v.   Armenia (dec.), 34334/04 , 7   December 2006; Marguš v.   Croatia [GC], 4455/10, 27   May 2014, Legal Summary ; Mihalache v.   Romania [GC], 54012/10, 8   July 2019, Legal Summary ; Decision on a request for an advisory opinion under Protocol No.   16 concerning the interpretation of Articles 2, 3 and 6 of the Convention , P16-2020-001, Supreme Court of the Slovak Republic, 14   December 2020, Legal Summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click   here . For non-official translations into other languages click   here .