European Court of Human Rights

 

 

SECOND SECTION

CASE OF PRIGALĂ v. THE REPUBLIC OF MOLDOVA

(Application no. 14426/12)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

13 December 2022

 

This judgment is final but it may be subject to editorial revision.

In the case of Prigală v. the Republic of Moldova,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

          Jovan Ilievski, President,
          Lorraine Schembri Orland,
          Diana Sârcu, judges,
and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 14426/12) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 3 March 2012 by a Moldovan national, Ms Zinovia Prigală (“the applicant”), born in 1950 and living in Anenii Noi;

the decision to give notice of the complaint concerning Article 4 of Protocol No. 7 to the Convention to the Moldovan Government (“the Government”), represented by their Agent, Mr O. Rotari, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 22 November 2022,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The case concerns the applicant’s allegation that she had been tried twice for the same administrative offence in violation of Article 4 of Protocol No. 7 to the Convention.

2.  Specifically, on 26 March 2010 a building inspector drew up a report finding that the applicant had modified the layout of her apartment without the requisite building permit, in breach of Article 179 of the Code of Administrative Offences. The applicant appealed against the report claiming that she had not committed the offence and that the contested report was null and void for a number of procedural reasons. On 27 April 2010 the Rîșcani District Court upheld the applicant’s appeal and its reasons “in full”, and terminated the administrative proceedings against her. The judgment became final in the absence of an appeal on 13 May 2010.

3.  On 14 May 2010 the same building inspector drew up a second report on the same facts and under the same provision of the Code of Administrative Offences, recommending that the court impose a fine of 150 euros (EUR) and oblige the applicant to demolish the unauthorised modifications to the layout of the apartment. The applicant appealed against this report. On 19 September 2011 the Chișinău Court of Appeal finally found the applicant guilty of the said offence but terminated the proceedings as statute barred because the offence had been committed in 2009.

THE COURT’S ASSESSMENT

      ALLEGED VIOLATION OF ARTICLE 4 of PROTOCOL NO. 7 to THE CONVENTION

4.  The applicant complained that she had been tried twice for the same offence and relied on Article 4 of Protocol No. 7 to the Convention.

5.  The Government submitted that Article 4 of Protocol No. 7 to the Convention was not applicable to the applicant’s situation because the offence under Article 179 of the Code of Administrative Offences was a continuous one. They also argued that the first set of proceedings had been terminated on purely procedural grounds without an examination on the merits and, therefore, did not amount to an “acquittal” within the meaning of Article 4 of Protocol No. 7 to the Convention.

6.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

7.  The relevant principles concerning the protection against duplication of criminal proceedings were summarised in Sergey Zolotukhin v. Russia ([GC], no. 14939/03, §§ 79-84, ECHR 2009); A and B v. Norway ([GC], nos. 24130/11 and 29758/11, §§ 105-34, 15 November 2016); and Mihalache v. Romania ([GC], no. 54012/10, §§ 47-49, 53-54, 67 and 88-116, 8 July 2019).

8.  Under Article 4 of Protocol No. 7 to the Convention, which enshrines the ne bis in idem rule, the Court has to determine whether the two sets of proceedings were criminal in nature, whether they concerned the same facts and offence (in idem), and whether there was duplication of the proceedings (bis).

9.  The Court finds - and it was not contested by the parties - that both sets of proceedings in the present case concerned a “criminal” offence within the autonomous meaning of Article 4 § 1 of Protocol No. 7 (see Ziliberberg v. Moldova, no. 61821/00, §§ 29-35, 1 February 2005, regarding administrative offences in Moldovan law).

10.  While it is not in dispute that the proceedings concerned the same offence, the Government contended that the offence was a continuous one which made repeated sanctions possible. The Court is not convinced by this argument in the light of the findings of the domestic courts, which terminated the proceedings as statute-barred because the impugned facts dated back to 2009 (see paragraph 3 above), thus contradicting the Government’s interpretation.

11.  The parties disputed whether or not the judgment from 27 April 2010 represented a final “acquittal” within the meaning of Article 4 of Protocol No. 7 to the Convention.

12.  The Court firstly notes that the text of the 27 April 2010 judgment upholds the applicant’s arguments in full, including those on the merits. Secondly, it observes that the Moldovan Code of Administrative Offences provides for only two possible outcomes of administrative proceedings: conviction or termination of administrative proceedings; the latter produces the same legal effects, irrespective of the reasons on which it relies - absence of an offence, expiry of statutory time-limits, or other procedural breaches. Pursuant to Article 380 of the Code of Administrative Offences, the termination of administrative proceedings precluded the repetition of such proceedings. Finally, in the applicant’s case, the second set of proceedings cannot be said to be a reopening of the same proceedings but were rather a separate process on the same facts and legal grounds.

13.  For those reasons, the Court distinguishes the final termination of proceedings in the present instance from a “simple discontinuance order”, in which case Article 4 of Protocol No. 7 to the Convention would no doubt have been inapplicable (see, to that effect, Marguš v. Croatia [GC], no. 4455/10, § 120, ECHR 2014 (extracts); Smirnova and Smirnova v. Russia (dec.), nos. 46133/99 and 48183/99, 3 October 2002; and Harutyunyan v. Armenia (dec.), no. 34334/04, 7 December 2006).

14.  Article 4 § 1 of Protocol No. 7 does not preclude the conduct of dual sets of proceedings, provided that certain conditions are fulfilled (see A and B v. Norway, cited above, §§ 130-32). It is incumbent on the respondent Government to convincingly demonstrate that those conditions were fulfilled (ibid.). In their observations the Government did not argue that the dual sets of proceedings in question were “sufficiently closely connected in substance and in time” so as to form a coherent whole, or that the other conditions mentioned above had been complied with (compare Bajčić v. Croatia, no. 67334/13, §§ 39-46, 8 October 2020).

15.  There has accordingly been a violation of Article 4 of Protocol No. 7 to the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

16.  The applicant claimed 5,000 euros (EUR) in respect of non-pecuniary damage and 8,000 Moldovan lei (equivalent to EUR 505) in respect of costs and expenses incurred before the domestic courts and before the Court. She submitted a copy of the contract with her representative and a payment receipt.

17.  The Government argued that no award should be made because the applicant had not resubmitted the claims for just satisfaction made in her initial application form at the appropriate stage of proceedings.

18.  The Court notes that the applicant made a claim for compensation in her submissions, referring back to the amounts specified in her initial application.

19.  Taking into account the effects of the violation, the Court awards the applicant EUR 1,200 in respect of non-pecuniary damage, plus any tax that may be chargeable. Having regard to the documents in its possession, the Court considers it reasonable to grant in full the applicant’s claims, amounting to EUR 505, for costs and expenses.

20.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the application admissible;

2.      Holds that there has been a violation of Article 4 of Protocol No. 7 to the Convention;

3.      Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 1,200 (one thousand two hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 505 (five hundred and five euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 13 December 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

                       

       Dorothee von Arnim                                                Jovan Ilievski
          Deputy Registrar                                                      President