The European Court of Human Rights (ECHR) declined a request made by the Supreme Court of Estonia to give an advisory opinion in relation to the prohibition of double jeopardy on Monday.

The ECHR held that the question submitted by Estonia is the subject of well-established case law. Therefore, the ECHR concluded that it is the requesting court’s task to decide whether the article in question was engaged, with reference to the case law of the ECHR, relevant domestic law and the facts of the case.

The Supreme Court of Estonia requested the ECHR issue an advisory opinion on the right not to be tried or punished twice, provided by Article 4 of Protocol No.7 to the Convention for the Protection of Human Rights and Fundamental Freedoms. Article 4(1) states that no one shall be liable to be tried or punished again in criminal proceedings for an offense for which the person has already been finally acquitted or convicted. The requesting court asked the ECHR to clarify if the prosecution’s office decision to discontinue criminal proceedings, based on the prosecutor’s conclusion that the accused has not committed a criminal offense, amounts to an acquittal for the purpose of Article 4. The requesting court further asked whether the prosecutor’s office could revoke the termination decision within the limitation period.

In arriving at the conclusion, the ECHR reviewed a few precedents that concerned the prosecutor’s re-institution of criminal proceedings. The ECHR held that a public prosecutor’s discontinuance of criminal proceedings is not tantamount to an acquittal, and it is a well-established principle.

The Supreme Court of Estonia is handling an appeal lodged by the former Tartu mayor, Aivar Soop, challenging his convictions of embezzlement and wilful breach of the public procurement rules. In 2019, the district prosecutor terminated the criminal proceedings for the latter charge without any given justification. Half a year later, a senior prosecutor revoked the termination and re-initiated the case, also without justification provided. The defendant challenged that the prosecution breached the ne bis in idem principle (double jeopardy).

The Council of Europe drew up Protocol 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms to address the difference between the European Convention on Human Rights (Convention) and the International Covenant on Civil and Political Rights. The explanatory report outlined the content of Article 4, including the requirement of a final decision on conviction or acquittal and the permissibility to reopen criminal proceedings when there is a fundamental defect.

To ensure a uniform application of the Convention, Protocol 16 provides that member-states could request an advisory opinion from the ECHR on questions of principle relating to the interpretation or application of the rights and freedoms in the Convention or the protocols.