Communicated on 11 July 2014
THIRD SECTION
Application no. 2071/14
Sergiu Dan FRUJA against Romania
lodged on 31 December 2013
STATEMENT OF FACTS
The applicant, Mr Sergiu Dan Fruja, is a Romanian national, who was born in 1988 and lives in Deva. He is represented before the Court by Mr A.F. Stoica, a lawyer practising in Timișoara.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 30 June 2012, at approximately 3.25 a.m., while the applicant was driving his car, a police patrol stopped the car for control. The applicant was invited to undergo a drug test. As he had tested positive for cannabis, the police officers accompanied him to the hospital for an examination of his blood and urine. A content of 5 ng/ml of cannabis was detected in his blood.
A criminal investigation was initiated against the applicant for driving under the influence of illicit drugs.
On 30 October 2012 the prosecutor’s office attached to Timișoara District Court decided to discontinue the criminal proceedings against the applicant. It held that the acts committed by the applicant did not attain the gravity of a criminal offence and sentenced him to a fine of 400 Romanian lei (ROL) (the equivalent of approximately 100 euros). The applicant alleged that he had paid the fine imposed by the prosecutor on 16 November 2012.
The prosecutor’s decision was not challenged within twenty days as provided for by the Criminal Code of Procedure.
On 14 June 2013 the applicant was informed that on 30 January 2013 the decision of 30 October 2012 had been invalidated and the criminal proceedings against him in connection with the offence of driving a vehicle under the influence of illicit drugs, had been re-opened. The chief prosecutor of the prosecutor’s office attached to the Timișoara District Court considered that an administrative fine was a too lenient sanction for the gravity of the offence allegedly committed by the applicant.
A bill of indictment was issued on 28 June 2013 and the applicant’s file was registered with the Timișoara District Court.
The applicant claimed that the principle non bis in idem was infringed as he had already been prosecuted and punished for the same facts. On 26 September 2013 the first-instance court found the applicant guilty as charged and sentenced him to eight month’ imprisonment, with a stay of execution. As regards the infringement of the principle non bis in idem, the court held that the prosecutor’s decision of 30 October 2012 could not be considered as a final decision because it had not been subjected to judicial review.
The applicant appealed asking to be acquitted, reiterating the infringement of the principle non bis in idem. On 21 November 2013 the Timișoara Court of Appeal dismissed the applicant’s appeal on points of law upholding the judgment of the first-instance court.
B. Relevant domestic law
The relevant part of the Romanian Code of Criminal Procedure, as in force at the material time, reads as follows:
Article 2491
“(3) The prosecutor’s decision to discontinue the criminal investigation on the basis of Article 10 letter b1 could be challenged within twenty days from the day of its notification (...).
(4) The execution of the prosecutor’s decision by which an administrative fine has been imposed is carried out after the expiry of the period stipulated in paragraph 3, and if a complaint has been filed and dismissed, after its dismissal.”
Article 273
“(1) The re-opening of the criminal investigation in case the discontinuance of the criminal investigation has been ordered, occurs only if one finds that the situation that determined the enforcement of this measure did not actually exist or the circumstance on which the discontinuance was based has disappeared (...).”
COMPLAINT
The applicant complains under Article 4 of Protocol No. 7 that he was prosecuted and convicted twice for the same offence.
QUESTIONs TO THE PARTIES
1. Did the decision of the prosecutor’s office attached to the Timisoara District Court of 30 October 2012 constitute a final decision for the purpose of Article 4 of Protocol No. 7?
2. Has the applicant been prosecuted and convicted twice for the same offence, as prohibited by Article 4 § 1 of Protocol No. 7? If so, did the proceedings fall within the exceptions envisaged by Article 4 § 2 of Protocol No. 7?
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