EIT: Hallinnollinen sanktio esti syytteen verikokeesta kieltäytymisestä

In Grand Chamber judgment in the case of Mihalache v. Romania (application no. 54012/10) the European Court of Human Rights held, unanimously, that there had been:

• a violation of Article 4 of Protocol No. 7 (right not to be tried or punished twice) to the European Convention on Human Rights.

In this case, Mr Mihalache submitted that he had been prosecuted twice for having refused to undergo a blood test in the framework of a police control with a view to determining his alcohol blood level.
The Court found that Mr Mihalache had been prosecuted twice for the same offence, in breach of the ne bis in idem principle, and that the reopening of the proceedings had not been justified. Mr Mihalache had been the subject of an initial set of criminal proceedings, during which the  public prosecutor’s office had imposed an administrative fine on him, which became final on expiry of the time-limit set out in Article 2491 of the Code of Criminal Procedure (CCP). Subsequently, the higherranking prosecutor’s office set aside the lower prosecutor’s decision and committed Mr Mihalache for trial. He was sentenced to one year’s imprisonment, suspended.

Judges Raimondi, Nussberger, Sicilianos, Spano, Yudkivska, Motoc and Ravarani expressed a joint concurring opinion. Judges Pinto de Albuquerque and Serghides each expressed a concurring opinion. Judge Bošnjak expressed a concurring opinion, joined by Judge Serghides. These opinions are annexed to the judgment.

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