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

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s34DFC730 { margin-top:0pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s23860FF7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sED360BAA { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; page-break-inside:avoid; font-size:10pt } .s3262E16F { font-family:Arial; color:#2f2f2f } .s1C9585A0 { font-family:Arial; font-style:italic; color:#2f2f2f } .s6E03D265 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sB49773B8 { margin-top:14pt; margin-bottom:3pt; text-indent:17.85pt } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s48FC6C54 { width:23.87pt; display:inline-block } .s446E0F47 { width:141.09pt; display:inline-block } .sA8208715 { width:9.2pt; display:inline-block } .s7BF29C1E { width:139.76pt; display:inline-block }       PANEL OF THE GRAND CHAMBER DECISION on a request for an advisory opinion under Protocol No. 16 concerning the interpretation of Article 4 of Protocol No. 7 to the Convention Request by the Supreme Court of Estonia (Request no. P16-2023-002)           STRASBOURG 19 February 2024       This decision is final. It may be subject to editorial revision   The European Court of Human Rights, sitting as a Panel of the Grand Chamber composed of:   Síofra O’Leary, President ,   Marko Bošnjak,   Arnfinn Bårdsen,   Peeter Roosma,   Davor Derenčinović , judges , and of Søren Prebensen, Deputy Grand Chamber Registrar , Having deliberated in private on 29 January and 12 February 2024, Decides as follows: PROCEDURE 1 .     In a letter of 28 November 2023, received at the European Court of Human Rights (“the Court”) on 7 December 2023, a panel of the Criminal Chamber of the Supreme Court of Estonia (“ Riigikohus ”; “the requesting court”) requested the Court, under Article 1 of Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms (“Protocol No. 16”), to give an advisory opinion on the questions set out in paragraph 2 below. The requesting court provided a translation into English of its request, which was received at the Court on 18 December 2023 (Rule   34   § 7 of the Rules of Court). On 10 January 2024, further materials were received from the requesting court, this supplementary information having been requested by the Court with reference to Rule 92 § 2.2 (see also paragraph 14 of the Guidelines on the Implementation of the Advisory Opinion Procedure Introduced by Protocol No. 16 to the Convention (“the   Guidelines”)). The request was consequently deemed to have been lodged on that latter date. THE QUESTIONS ASKED 2 .     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?” THE BACKGROUND AND DOMESTIC PROCEEDINGS GIVING RISE TO THE REQUEST 3 .     On an unspecified date, the Estonian prosecuting authorities opened pre-trial proceedings in respect of a mayor in relation to the suspected offences of (a) embezzlement and (b) wilful breach of the public procurement rules, regarding events that took place in 2016. 4 .     In August 2019 the district prosecutor in charge of the case decided, under Articles 199 § 1 (1) and 200 of the Estonian Code of Criminal Procedure, to terminate the proceedings in respect of the suspected offence of wilful breach of the public procurement rules. Under the terms of the former of those provisions, criminal proceedings must not be opened if “there are no grounds for criminal proceedings”. According to the latter provision, the competent prosecutor’s office is to terminate criminal proceedings which have already been opened if circumstances which preclude them under the former provision transpire in the course of the pre-trial proceedings. As possible under the relevant provisions of the same Code, the prosecutor gave no reasons for that decision, specifying that reasons would be provided if the victim of the alleged offence – the relevant municipality – so requested with a view to complaining of the termination of the proceedings to the Prosecutor General’s Office. The relevant municipality did not avail itself of that possibility. 5 .     The proceedings in relation to the alleged embezzlement continued. 6 .     Six months later, in February 2020, a senior prosecutor revoked the decision to terminate the pre-trial proceedings in respect of the suspected offence of wilful breach of the public procurement rules. The prosecutor stated, without explaining the basis for that conclusion, that an examination of the case material showed that the partial termination of the proceedings had not been justified. 7 .     Upon the application of the competent district prosecutor’s office, in January 2021 the Tartu County Court committed the defendant for trial on both charges. In doing so, it denied an application by the defendant to terminate the criminal proceedings against him in respect of the second charge on the basis of the principle of ne bis in idem . It found that that charge had not been already finally determined. 8 .     In May 2022 the Tartu County Court convicted the defendant of both charges. It noted, inter alia , that the proceedings in relation to the alleged breach of the public procurement rules were not precluded by the earlier termination of the proceedings with respect to that charge, since that termination had been lawfully revoked. The proceedings were not precluded by Article 4 of Protocol No. 7 either. The first question under that provision was whether it applied at all, and that was only so if the person concerned had already been finally acquitted or convicted. That was not the defendant’s case, since the prosecutor’s decision to terminate the proceedings had not constituted an acquittal or a conviction within the meaning of Article 4 § 1 of Protocol No. 7. The court referred, in that regard, to paragraphs 96 and 106 of this Court’s judgment in Mihalache v. Romania ([GC], no. 54012/10, 8   July 2019). 9 .     In his appeal against conviction, the defendant asked the Tartu Court of Appeal to, inter alia , terminate the proceedings in respect of the alleged breach of the public procurement rules, reiterating that those proceedings contravened the ne bis in idem principle. 10 .     In February 2023 the Tartu Court of Appeal partly varied the lower court’s judgment, but did not terminate the proceedings in respect of the second charge or acquit the defendant of that offence. It held, inter alia , that the partial termination of the proceedings by the district prosecutor had amounted to a fundamental defect within the meaning of Article 4 § 2 of Protocol No 7. The threshold to speak of such a fundamental defect which could affect the outcome of the case was low. A reopening of the proceedings was possible if it was fairly probable that they could result in a conviction. In such cases, it could be said that the termination of the proceedings had been incorrect since this could have improperly prevented a conviction. Reopening was inadmissible only if it was obvious that no conviction could ensue, which was not the case. Indeed, both the lower court and the court of appeal itself had convicted the defendant of breaching the public procurement rules. 11 .     The defendant appealed on points of law to the Supreme Court, reiterating his request that the proceedings in respect of the charge of having breached the public procurement rules be terminated based on the ne bis in idem principle. He argued, inter alia , that the senior prosecutor had failed to give reasons for the decision to revoke the partial termination of the proceedings by the district prosecutor’s office, even though that was required by law. Moreover, no further investigative steps had been taken after that partial termination, nor any fresh evidence obtained. Contrary to what had been held by the Tartu Court of Appeal, the conditions under Article 4 § 2 of Protocol No. 7 for a reopening of the proceedings had not been met, since this could not be justified by a mere reassessment of the available evidence. 12 .     In reply, the prosecution argued that the ne bis in idem principle had not been breached. 13 .     On 27 November 2023 the panel of the Criminal Chamber of the Supreme Court hearing the appeal – the requesting court – decided to stay the proceedings before it and to request an advisory opinion from this Court, posing the two questions set out in paragraph 2 above. 14 .     The requesting court noted, in particular, with reference to paragraphs   99 and 106 of Mihalache (cited above), that “an additional explanation by the [Court] would be needed as to whether termination of criminal proceedings in [the] manner taking place [in accordance with Articles 200 and 199 § 1 (1)] of the Estonian Code of Criminal Procedure can (at least as a rule) be interpreted as acquittal within the meaning of Article 4 § 1 of Protocol No. 7 ..., or whether this constitutes a ‘simple discontinuance’ of criminal proceedings [in which case] Article 4 of Protocol No. 7 ... is not applicable”. THE COURT’S ASSESSMENT 15.     The Court is called upon to examine whether the request fulfils the requirements set out in Article 1 of Protocol No. 16, and to decide whether or not it is to be accepted for examination by the Grand Chamber (Article 2 of Protocol No. 16 and Rule 93 of the Rules of Court). 16.     It is not in doubt that the first, third and fourth conditions under Article   1 of Protocol No. 16 for accepting the request are fulfilled. The request: ( a )     was submitted by a panel of the Supreme Court of Estonia, which has been designated by Estonia under Article 10 of Protocol No. 16 in the declaration contained in its instrument of ratification of that Protocol (Article   1 § 1); ( b )     was made in the context of a case pending before that court (Article   1   § 2); and ( c )     is reasoned and provides the relevant legal and factual background of the pending case (Article 1 § 3). 17.     The salient and only remaining issue is thus whether the request meets the second condition for acceptance: whether it concerns “questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the Protocols thereto” (Article 1 § 1 of Protocol No. 16). 18.     As the Court has previously stated, those “questions of principle” must be considered by the requesting court or tribunal to be necessary for adjudicating the case pending before it (see paragraph 6.2 of the Guidelines, and Decision on a request by the Supreme Court of the Slovak Republic for an advisory opinion under Protocol No. 16 concerning the interpretation of Articles 2, 3 and 6 of the Convention , no. P16-2020-001, § 17, 14 December 2020 ( Decision P16-2020-001 )). 19.     It should be noted in that connection that the aim of the procedure under Protocol No. 16 is not to transfer the dispute to the Court, but rather to give the requesting court guidance on Convention issues when determining the case before it (see, most recently, Advisory opinion as to whether an individual may be denied authorisation to work as a security guard or officer on account of being close to or belonging to a religious movement [GC], request no. P16-2023-001, Conseil d’État of Belgium, § 61, 14 December 2023). 20.     As the Court has also stated, “questions of principle” within the meaning of Article 1 § 1 of Protocol No. 16 are those which on account of their nature, degree of novelty and/or complexity or otherwise concern an issue on which the requesting court would need the Court’s guidance by way of an advisory opinion to be able to ensure respect for Convention rights when determining the case before it (see Decision P16-2020-001 , cited above, § 23; also paragraph 7 of the Guidelines). 21 .     In the instant case, the first question by the requesting court essentially asks whether the discontinuance of criminal proceedings by a public prosecutor, on the basis of his or her having come to the view following a substantive assessment of the case that the accused has not committed a criminal offence or that the act committed by the accused does not correspond to the elements of a criminal offence, can be regarded as an acquittal for the purposes of Article 4 of Protocol No. 7 (see paragraph 2 above). In that connection, the requesting court relied in particular on the reasons set out in the Court’s judgment in Mihalache v. Romania ([GC], no. 54012/10, 8 July 2019). According to the requesting court, “an additional explanation by the [Court] would be needed as to whether termination of criminal proceedings in [the] manner taking place [in accordance with Articles 200 and 199 § 1 (1)] of the Estonian Code of Criminal Procedure [see paragraph 4 above] can (at least as a rule) be interpreted as acquittal within the meaning of Article 4 § 1 of Protocol No. 7 ..., or whether this constitutes a ‘simple discontinuance’ of criminal proceedings [in which case] Article 4 of Protocol No. 7 ... is not applicable”. 22 .     The question concerning the applicability of Article 4 of Protocol   No.   7 to a decision by a public prosecutor to discontinue criminal proceedings first arose before the Court in Smirnova and Smirnova v. Russia ((dec.), nos. 46133/99 and 48183/99, 3 October 2002). In that case, the prosecutor’s office had discontinued the proceedings against the second applicant. However, when it then forwarded the case to the criminal court in relation to the (ongoing) charges against the first applicant, that court, on its own initiative, re-instituted the proceedings against the second applicant, based on its assessment that they had been discontinued without a good reason because there was evidence of her involvement in the alleged offence. The second applicant complained of that re-institution of the proceedings under Article 4 of Protocol No. 7. The Court held that the discontinuance of criminal proceedings by a public prosecutor did not amount to either conviction or acquittal for the purposes of that provision, which therefore found no application in the proceedings concerned. 23 .     The question again arose in Sundqvist v. Finland ((dec.), no.   75602/01, 22 November 2005) but was not addressed there since the Court found the complaint under Article 4 of Protocol No. 7 incompatible ratione materiae with that provision on the basis that a decision not to prosecute by a subordinate prosecutor, which could be reviewed by the Prosecutor General, was not regarded as “final” within the domestic legal system. 24 .     In the subsequent case of Harutyunyan v. Armenia ((dec.), no.   34334/04, 7 December 2006), the proceedings had been discontinued on the basis of the absence of the objective (or external) elements of the offence. The public prosecutor had then quashed that decision and reopened the investigation, and the applicant complained of that under Article 4 of Protocol   No. 7. The Court held, with reference to Smirnova and Smirnova (cited above), that the discontinuance and subsequent resumption of the proceedings could not be seen as double jeopardy for the purposes of that provision. 25 .     The issue came before the Grand Chamber of the Court in   Marguš v.   Croatia ([GC], no. 4455/10, ECHR 2014 (extracts)), although the central question in that case was the prosecution and conviction of a soldier who had previously been granted an amnesty. There, in a first set of criminal proceedings the public prosecutor had indicted the applicant before the competent court for, inter alia , murdering two people, but had then withdrawn those charges. In a subsequent set of criminal proceedings, the applicant was indicted for, inter alia , the same two killings under the war crimes legislation, and complained of that under Article 4 of Protocol No. 7. The Grand Chamber noted, with reference to Smirnova and Smirnova and Harutyunyan (both cited above), that the Court had already held that the discontinuance of criminal proceedings by a public prosecutor did not amount to either a conviction or an acquittal, and that therefore Article 4 of Protocol   No. 7 found no application in that situation (see Marguš , cited above, §§ 120-21). The Grand Chamber accordingly rejected that part of the application as incompatible ratione materiae . 26 .     Quite a special prosecutorial situation was at issue in the more recent case of   Mihalache (cited above). Unlike the above-mentioned cases, it concerned a decision by a public prosecutor to discontinue criminal proceedings and at the same time impose an administrative penalty in respect of the conduct to which those proceedings related (ibid., § 13). As pointed out by the Grand Chamber, “[t]his was therefore not a simple discontinuance order, in which case Article 4 of Protocol No. 7 ... would no doubt have been inapplicable” (ibid., § 99). 27 .     As it commenced its consideration of the meaning of the expression “acquitted or convicted”, the Grand Chamber affirmed, with reference to Smirnova and Smirnova , Harutyunyan and Marguš (all cited above), the position that the discontinuance of criminal proceedings by a public prosecutor does not amount to either a conviction or an acquittal, and that Article 4 of Protocol No. 7 is therefore not applicable in such a situation (see Mihalache , cited above, § 96, and also §§ 99 and 106). On that occasion it 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. It noted, in particular, that the overarching considerations were (a) whether the decision in question had been given by an authority participating in the administration of justice in the national legal system concerned, and   (b)   whether that authority – irrespective of whether it was formally a judicial authority – was competent under domestic law to establish and, as appropriate, punish the unlawful conduct of which the person concerned had been accused (ibid., § 95). The Grand Chamber also explained that the choice of the words “acquitted or convicted” in Article 4 of Protocol No. 7 implied that the accused’s criminal responsibility had been established following an assessment of the circumstances of the case, characterising that exercise as “a determination as to the merits of the case” (ibid., § 97). It then pointed to some factors capable of informing that assessment (ibid., § 98). 28.     In light of these considerations, the Grand Chamber found that in using its powers under Romanian law to discontinue the criminal proceedings but at the same time impose a penalty having a punitive and deterrent purpose, the public prosecutor’s office had established the applicant’s responsibility for the conduct in question and punished him for it. It concluded that this had amounted to a “conviction” within the substantive meaning of this term in Article 4 of Protocol No. 7 (ibid., §§ 100-01). 29 .     The position affirmed in Mihalache (cited above, §§ 96, 99 and 106) that a “discontinuance order” is not tantamount to an acquittal is now seen as well-established case-law within the meaning of Article 28 § 1 (b) of the Convention, to be applied by the Court’s three-judge committees (see Rotaru v. the Republic of Moldova ((dec.) [Committee], no. 56386/10, 17   November 2020, where the Court reiterated, with reference to a discontinuance based on the absence of evidence that the applicant had committed an offence, that the discontinuance of criminal proceedings by a public prosecutor does not amount to either a conviction or an acquittal; see also, mutatis mutandis , Prigală v. the Republic of Moldova [Committee], no. 14426/12, § 13, 13   December 2022). 30.     The overview of the Court’s case-law in paragraphs 22-29 above demonstrates that the first question asked by the requesting court is the subject of well-established case-law of the Court. The Court notes that, based on the information available to it, the discontinuance at issue in the case pending before the requesting court does not involve any special prosecutorial situation which would call for any further elaboration by the Court of the principles developed in that case-law. It will in any event be for the requesting court to determine, on the basis of that existing case-law and with reference to the relevant domestic law and the facts of the case pending before it, whether Article 4 of Protocol No. 7 is engaged. CONCLUSION 31.     In the light of the above, the Court concludes that the request does 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. 32.     Accordingly, it decides not to accept the request. For these reasons, the Court, by a majority, Decides not to accept the request. Done in English and translated into French, and notified in writing on   19   February 2024.     Søren Prebensen   Síofra O’Leary   Deputy to the Registrar   President