The European Court of Human Rights (ECHR) rejected the Supreme Court of Estonia’s request for an advisory statement in relation to the avoidance of double jeopardy on Monday.
The ECHR maintained that the question presented by Estonia is a matter of well-grounded case law. Therefore, the court concluded that it would be the duty of the requesting court to decide if the article in question was invoked, with reference to the case law of the ECHR, applicable domestic law, and the case facts.
The Supreme Court of Estonia requested the ECHR to provide an advisory statement on the right not to be tried or punished again, which is granted by Article 4 of Protocol No.7 to the Convention for the Protection of Human Rights and Fundamental Freedoms. The citing court asked ECHR to clarify if the decision of the prosecutor’s office to discontinue criminal procedures, based on the conclusion that the accused is innocent of a criminal offense, amounts to an acquittal under Article 4. They also asked if the prosecutor’s office could revoke its termination decision within the prescription period.
In its conclusion, the ECHR reviewed precedents relating to the reinstatement of criminal proceedures by the prosecutor, and held that discontinuation of criminal proceedings by a public prosecutor does not equate to an acquittal – a principle that is well established.
The case at hand involves the Supreme Court of Estonia handling an appeal by former Tartu mayor, Aivar Soop, who is fighting convictions of embezzlement and deliberate breach of public procurement rules. In 2019, the district prosecutor discontinued the criminal proceedings for the latter charge without any provided justification. A senior prosecutor revoked the dismissal six months later, and restarted the case, again, without any given justification. The defendant challenged that this action by the prosecution breached the principle of ne bis in idem (double jeopardy).
Protocol 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms was written by the Council of Europe to address the difference between the European Convention on Human Rights and the International Covenant on Civil and Political Rights. The explanatory report illuminated the content of Article 4, which includes the necessity of a final verdict on conviction or acquittal, and the allowance to reopen criminal proceedings when a vital fault exists.
To ensure the Convention is uniformly applied, Protocol 16 stipulates that member states can request advisory opinions from the ECHR on principle questions relevant to the interpretation or application of the rights and freedoms identified in the Convention or the protocols.