Introduction
The rule against double jeopardy, often referred to as ne bis in idem, broadly protects an individual against the risk of being put in jeopardy of being punished twice in respect of the same matter. In practice this usually means that if he has been acquitted or convicted in respect of a criminal charge, he should not be tried again in respect of the same matter in the absence of new evidence. It can be described as a universal legal principle with an ancient ancestry. Today, it finds expression in the common law and in a range of international legal instruments, most notably: Article 14(7) of the International Covenant on Civil and Political Rights, Article 50 of the EU’s Charter of Fundamental Rights, Article 54 of the Convention on the Implementation of the Schengen Agreement and Article 4 of Protocol No.7 to the European Convention on Human Rights (ECHR).
Although the principle is deceptively easy to state in the abstract, its application in practice can give rise to difficult and confusing distinctions. One of these is the question of whether, or to what extent, it can apply to prosecutorial (as distinct from court or judicial) decisions to discontinue (or not to commence) a prosecution. This question was the subject of a judgment of the Grand Chamber of the European Court of Human Rights (ECtHR) a few weeks ago in the case of Mihalache v Romania Application No.54012/10.
The Facts
The applicant was a motorist who had been stopped and breathalysed in accordance with Romanian law and procedure. As the breath test proved positive for alcohol, he was taken to a police station and requested to provide a biological sample for determining his blood alcohol level. The applicant refused the request. A refusal is a criminal offence punishable by a maximum sentence of between two and seven years imprisonment. The police file on the investigation was submitted to the public prosecutor’s office for consideration of a criminal prosecution.
Having considered the material in the file in accordance with the provisions of the Romanian Code of Criminal Procedure (CCP), the prosecutor decided that the applicant’s actions did not present a sufficiently serious danger to society to warrant criminal proceedings. This was an option under the CCP even though the conduct in question was prohibited by the criminal law. Accordingly, the prosecutor discontinued the criminal proceedings and proceeded to deal with the applicant’s failure to provide a sample by the imposition of an administrative penalty in accordance with the terms of the CCP. Under the CCP, the applicant had 20 days within which to appeal the discontinuance decision and fine, after which they became enforceable. The applicant did not exercise the right of appeal and paid the fine.
The discontinuance decision and fine were subsequently set aside by a higher-ranking prosecutor who considered that the initial decision had been taken in error. Again, this was an option provided for by the CCP. The criminal proceedings were duly re-instituted and the applicant was convicted of failing to provide a sample. He was sentenced to a suspended sentence of imprisonment for one year (and the fine was ordered to be reimbursed).
The applicant challenged the decision to re-institute the criminal proceedings on the ground that it breached the protection against double jeopardy provided by Article 4 of Protocol 7 to the ECHR. Article 4(1) states:
“No one shall 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 is qualified by Article 4(2) which states:
“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.”
The importance of this double jeopardy protection is reflected in the fact that Article 4(3) exempts it from the possibility of a State derogation under Article 15 ECHR; a status reserved for very few of the rights guaranteed by the ECHR.
The Romanian courts held that prosecutor’s initial discontinuance order did not amount to a final judgment for purposes of the CCP. As such, the re-opening of the case by the prosecutor’s office did not breach the double jeopardy principle. The applicant took his case to the ECtHR arguing that the decision was in violation of his rights under Article 4(1) of the Protocol.
Criminal nature of proceedings
The ECtHR proceeded on the basis that for the double jeopardy protection to apply, three components must be satisfied, namely: 1. the two sets of proceedings must be criminal in nature; 2. they must concern the same facts; and 3. there must be duplication of the proceedings. It had no difficulty in finding that the imposition of the administrative fine was criminal in nature. Drawing on its established jurisprudence, it explained that the classification of a prohibition and penalty under national law was not the sole criterion for determining whether proceedings were criminal in nature for the purposes of the ECHR and Protocols. The ECtHR would look also at the substantive nature of the offence and the severity of the penalty that can be imposed for it.
In this case, the failure to give a biological sample was classified as a criminal offence under Romanian law, even though the prosecutor imposed an administrative fine on the basis that the failure was not sufficiently serious to constitute a criminal offence. The ECtHR noted that the substantive nature of the ‘offence’ reflected core values protected by the criminal law. This was not altered by the fact that the infringement of those values was initially considered as insignificant. The Court also noted that the maximum penalty for the offence was imprisonment for two years to seven years which, by any standard, was a severe penalty. Under the CCP, the prosecutor was required to impose an administrative penalty where the infringement was not considered sufficiently serious to constitute a criminal offence. The fine actually imposed was the maximum available under the CCP. The ECtHR concluded that the purpose of the fine was not to repair damage caused by the applicant, but to punish him and to deter him from committing further criminal acts.
Taking all these factors into account, the Court concluded that the imposition of the administrative fine entailed a criminal proceeding. There was also no doubt that the subsequent criminal proceedings leading to the suspended sentence of imprisonment was criminal in nature.
The same facts
There second component (that the two sets of proceedings must concern the same facts) also presented no difficulty. Each of proceedings leading to the administrative fine and to the suspended sentence concerned the applicant’s failure to submit the sample. He was convicted and punished in the second proceedings in respect of the same matter that was dealt with by the administrative penalty in the earlier proceedings. Accordingly, the ECtHR found that the second component was satisfied.
Final determination by a prosecutor
The third component (that there must be duplication of proceedings) was much more difficult and significant. A key issue here was whether the disposal of proceedings by a prosecutor, as distinct from a judge or a court, could be sufficient to bring the double jeopardy protection into play. Could a prosecutor’s decision to discontinue criminal proceedings in favour of an administrative penalty be treated as the equivalent of a conviction which would protect the offender against the risk of being subsequently tried and punished again in the same matter? In its previous case law, the Court had declined to recognise a prosecutor’s decision on discontinuance as sufficient to constitute an acquittal or conviction. In Mihalache, however, it has accepted that there can be circumstances in which a prosecutor’s disposal of criminal proceedings can trigger the double jeopardy protection.
Preferring the English version of Article 4(1) over the equally authentic French version, the ECtHR decided that it was not necessary for the final determination to be made by a judge. It was sufficient that it was made by “an authority participating in the administration of justice in the national legal system concerned, and that the authority is competent under domestic law to establish and, as appropriate, punish the unlawful behaviour of which the person has been accused.” Equally, there was no need for that determination to take the form of a judgment. Accordingly, it was at least possible for a prosecutor’s decision on discontinuance to amount to a final conviction or acquittal for the purposes of double jeopardy.
Determination on the merits
On the issue of whether the prosecutor’s decision amounts to an acquittal or conviction in any given situation, the ECtHR repeated the established position that the decision must involve a determination on the merits of the case. Its explanation of what that entails, however, lacks clarity and precision. Not only must the prosecutor be competent under domestic law to examine the merits of a case, he or she must also “study or evaluate the evidence in the case file and assess the applicant’s involvement [in the events in question] for the purposes of determining whether “criminal” responsibility has been established”. Interestingly, in explaining when the prosecutor’s decision can amount to an acquittal or conviction in this context, the Court did not include a requirement for the prosecutor to have the capacity to impose a penalty or punishment in the matter.
The ECtHR found that the “merits” test had been satisfied on the facts of Mihalache. This was not a simple case of a prosecutor’s decision to discontinue a prosecution. The prosecutor was competent to investigate the applicant’s actions and assess whether they constituted a criminal offence. Having done that, the prosecutor exercised the power to discontinue the prosecution and impose an administrative penalty that had a punitive and deterrent effect. In effect, the prosecutor’s decision amounted to a conviction and punishment following on from an assessment of the evidence.
A “final” determination
The more difficult issue, perhaps, was whether the conviction was “final” within the contemplation of the double jeopardy principle. To have that status, “ordinary” remedies under domestic law must have been exhausted or the time limit for their exercise must have expired. On the facts of Mihalache, it was clear that the time limit for the applicant to appeal against the penalty had expired. The real question was whether the provision in the CCP permitting a more senior prosecutor to review and overturn the discontinuance decision and penalty qualified as an “ordinary” remedy in this context. If it did qualify, then the initial discontinuance decision was not “final” for the purposes of double jeopardy.
Qualifying its established jurisprudence which seemed to suggest that the designation of “final” decisions should be determined by reference to domestic law, the ECtHR explained that the matter is not determined exclusively by the domestic classification. It will conduct its own assessment of the “final” nature of a decision by reference to the exhaustion of “ordinary” remedies. Where domestic law requires a particular remedy to be used for a decision to be designated as final, the Court will draw a distinction between “ordinary” and “extraordinary” remedies. In the interests of legal certainty, it will only consider the exhaustion of “ordinary” remedies when determining whether a decision is “final” for the purposes of double jeopardy. In making the distinction between “ordinary” and “extraordinary”, having regard to the circumstances of an individual case, the Court will consider such factors as the accessibility of a remedy to the parties, and the discretion afforded by law to authorised officials in the use of the remedy. It will also pay attention to the overall foreseeability of the law.
When establishing the “ordinary” remedies available in a particular case, the Court will take domestic law and procedure as the starting point. That law, however, must satisfy the principle of legal certainty which requires that a remedy must operate in a manner which brings clarity to the point in time when a decision becomes final. Moreover, a law conferring unlimited discretion on one of the parties to make use of a specific remedy, or subjecting such a remedy to conditions disclosing a major imbalance between the parties in their ability to use it, would run counter to the principle of legal certainty.
Applying these principles to the facts in Mihalache, the ECtHR found that the “remedy” of review by a more senior prosecutor had a basis in domestic law, and that it was reasonable for senior prosecutors to review the merits of decisions by prosecutors lower down the chain. However, the review facility did not qualify as an “ordinary” remedy for the purposes of double jeopardy, as it did not satisfy the requirements of legal certainty. Its use was not subject to a time limit. This created uncertainty in respect of the applicant’s legal situation. By way of contrast, he had to exercise his remedy against the penalty by an appeal lodged within 20 days of notification of that penalty. This discrepancy in the treatment of the two parties resulted in a major imbalance in their ability to make use of the remedies in question.
Double jeopardy satisfied
As it did not qualify as an “ordinary” remedy, the prosecutor’s review option could not be taken into account in determining whether the decision on discontinuance and the administrative penalty (the applicant’s initial conviction) was a “final” decision for the purposes of double jeopardy. By contrast, the applicant’s right of appeal against that initial conviction satisfied the requirements of legal certainty. As such, it qualified as an “ordinary” remedy that could be taken into account in determining whether the initial conviction was “final”. Since the applicant allowed the 20 day time limit to expire without exercising the right of appeal, and no other “ordinary” remedy was available, the ECtHR concluded that his initial conviction was “final”. It follows that his subsequent trial and punishment, consequent on the senior prosecutor’s decision to overturn the initial conviction, were prohibited by the double jeopardy principle contrary to Article 4(1).
The Article 4(1) breach was not avoided by the terms of Article 4(2). There was no issue of new or newly discovered facts becoming available in Mihalache. The argument that the initial prosecutor’s decision amounted to a fundamental defect in the proceedings was swiftly dismissed by the ECtHR. A mere reassessment of the facts in the light of the applicable law (which is essentially what had happened in Mihalache) cannot amount to a fundamental defect in the proceedings within the contemplation of Article 4(2).
Comment
The ECtHR’s decision in Mihalache is significant insofar as it extends the application of the double jeopardy principle to prosecutorial decisions discontinuing criminal proceedings in certain circumstances. Unfortunately, however, the Court’s reasoning is not as clear and coherent as it might be. So, for example, it leaves considerable uncertainty over the key question of when a decision on discontinuance constitutes an acquittal or conviction sufficient to prohibit a subsequent prosecution in the same matter.
The Court holds that it must be a decision on the merits of the case against the accused. It is by no means clear, however, when a prosecutorial decision to discontinue proceedings can be considered a decision on the merits. The Court said that the presence of certain factors “is likely to lead to a finding that there has been a determination as to the merits of the case”. Those factors are: a criminal investigation has been initiated after an accusation has been made against the accused, the victim has been interviewed, the evidence has been gathered and examined by the competent authority (presumably the prosecutor) and a reasoned decision has been given on the basis of that evidence (presumably by the prosecutor).
There are several weaknesses in this approach. Obviously, it is open to subjective interpretation on the facts of an individual case. Apart from the looseness and uncertainty inherent in the individual elements, they are only “likely to lead to a finding that there has been a determination on the merits.” This amounts to uncertainty heaped on uncertainty. How can it be possible for an objective observer to predict in advance whether a discontinuance decision will or will not satisfy these criteria sufficiently to constitute a decision on the merits?
Apart from the imposition of the administrative penalty (which the Court did not include as an essential element for a decision on the merits), it can be argued that the prosecutorial decision-making process in many cases in Britain and Ireland can satisfy the Mihalache criteria. They entail a thorough police investigation in which the victim is interviewed, evidence is gathered and examined by the prosecutor and the prosecutor makes a reasoned decision on prosecution on the basis of that evidence. In practice, of course, a prosecutorial decision discontinuing criminal proceedings in Britain or Ireland is not considered to be a decision on the merits. It is merely a decision that there is not sufficient admissible evidence to warrant a prosecution (or that it is not in the public interest to take a prosecution). In the light of Mihalache, however, it is at least arguable on the facts of an individual case that a decision to discontinue criminal proceedings could be sufficient to trigger the double jeopardy protection against the initiation of subsequent criminal proceeding in the same matter on the basis of the same evidence.
Further confusion is generated by the fact that the ECtHR appears to draw a distinction between “a simple discontinuance order”, which cannot trigger the double jeopardy protection, and the nature of the prosecutorial decision in Mihalache. It is by no means clear, however, what is meant by a “simple discontinuance order” in this context. The reality is that decisions not to prosecute, or to discontinue criminal proceedings, can be taken in widely varying circumstances even within a single jurisdiction. A preliminary decision that in the current state of the investigation there is insufficient evidence to warrant a prosecution might reasonably be classified as a simple discontinuance order. What is the position where the matter has been fully investigated and there are no realistic prospects of finding any further admissible evidence sufficient to warrant prosecution? What also about discontinuance decisions taken in the context of the rapidly expanding options to divert the accused from the criminal trial process? Surely these cannot be lumped together as simple discontinuance orders that are incapable of triggering the double jeopardy protection.
Applying the established jurisprudence, the ECtHR made it clear that the conviction/acquittal decision must be “final” in order to trigger the double jeopardy protection under Article 4(1). Here again, however, its approach generates more unnecessary uncertainty. Quite reasonably, it links the issue of finality with the exhaustion of remedies. Unfortunately, it goes on to draw an artificial distinction between “ordinary” and “extraordinary” remedies in this context. The picture is further clouded by the unnecessary introduction of broader concepts of legal certainty and foreseeability to the definition of an “ordinary” remedy. The effect is to convey a sense of subjectivity over what will qualify as an “ordinary” remedy on the facts of an individual case.
The clarity of the analysis is not helped by the peculiar presentation of the facility for review of the initial prosecutorial decision as a remedy. Internal review of a decision within the body making the decision would not normally be interpreted as a remedy available to that body. It would seem more appropriate to classify it as part of the internal administrative process through which an initial decision emanating from the body is finalised. If it had a prejudicial effect on the treatment of the accused in a criminal matter, it could always be challenged under the right to a fair trial as guaranteed by Article 6 ECHR. Introducing it to the analysis of what constitutes an ordinary, as distinct from an “extraordinary”, remedy for the purposes of the double jeopardy protection only serves to confuse.
Finally, it is worth noting that while the Grand Chamber of the ECtHR in Mihalache was unanimous in its decision, there was considerable disagreement among the judges in their reasoning. The main judgment was agreed by only seven of the seventeen judges. The other ten judges between them appended four separate opinions departing from aspects of the reasoning in the Court’s judgment. This, together with the lack of clarity on some key elements in the judgment, as outlined above, suggests that the Court will have to return to the application of the double jeopardy principle to prosecutorial decisions in the future.