CASE OF MIHAI TOMA v. ROMANIA
Remainder inadmissible;Violation of Article 7 - No punishment without law (Article 7-1 - Retroactivity);Non-pecuniary damage - award
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi
6. The applicant was born in 1948 and lives in Târgu-Jiu. 7. On 2 December 1995 the applicant was stopped by police for drinkdriving. The police informed him on the spot that his right to drive on the public roads was suspended for ninety days. The driving licence was not physically removed from the applicant’s possession. 8. On 13 February 1996 the applicant was stopped by police while driving a car and was committed to trial for the offence of driving on public roads while his driving licence was suspended under Article 36 § 2 of Decree no. 328/1966 on driving on public roads (“Decree no. 328/1966”). 9. In a decision of 5 June 1997 the Târgu-Jiu District Court convicted the applicant of that offence and imposed on him a criminal fine of 80,000 Romanian lei (ROL) and ordered him to pay ROL 40,000 in costs. It also informed the applicant that if he did not comply with the payment order the fine could be converted into a prison sentence (Article 63 of the Criminal Code). The decision became final, as the parties did not appeal against it. 10. On 15 December 2004 the applicant went to Gorj Road police station to ask for his old driving licence to be replaced with the new model, in accordance with the new requirements in the matter. On this occasion, the police withdrew his driving licence and informed him that it would be annulled, as the applicant had been stopped for drink-driving in 1995. 11. On the same day the police informed the applicant that under Article 101 § 1 (b) of Emergency Ordinance no. 195/2002 his driving licence had been annulled with effect from 9 December 2004. His objection to the annulment was dismissed by Gorj County Police on 25 January 2005. 12. On 10 March 2005 the applicant appealed before the Gorj County Court, seeking the revocation of the annulment order. 13. In a decision of 15 April 2005 the County Court (Administrative Law Section) allowed the action for the following reasons: “Indeed, in the judgment of 5 June 1997 of the Târgu-Jiu County Court ... the [applicant] was sentenced to pay a fine of ROL 80,000 ... and under Emergency Ordinance no. 195/2002, the driving licence stood to be annulled if the driver was convicted of a traffic offence ... Under Article 126 (c) of the Code of Criminal Procedure, the enforcement of the criminal fine becomes statute-barred after three years; therefore the annulment of the driving licence, being a subsidiary penalty (pedeapsa accesorie), becomes statutebarred at the same time as the main penalty. The time-limits are counted from the date when the events occurred, therefore ... the penalty is at present statute-barred.” 14. The Gorj County Police appealed, and in a final decision of 12 July 2005 the Craiova Court of Appeal (Administrative Law Section) reversed the judgment and dismissed the applicant’s initial action, giving the following grounds: “The annulment of the driving licence is not a subsidiary penalty, as the firstinstance court wrongly considered; it represents an administrative measure with distinct rules applicable to it that can only be imposed by the police. Decree no. 328/1966 and Emergency Ordinance no. 195/2002 do not provide a timelimit for the application of this measure; moreover, in the applicant’s case the measure is applied automatically, as he was criminally convicted for a traffic offence.” 15. Article 36 § 2 of Decree no. 328/1966 on driving on public roads criminalises the offence of driving on public roads with a suspended driving licence. The same Act provides that a driving licence may be annulled if its owner has been convicted of a criminal offence under the regulations on driving on public roads (Article 42 § 2). The annulment is decided by the Head of the County Police once the criminal decision is final (Articles 42 § 3 and 43). 16. Decree no. 328/1966 was abolished by Emergency Ordinance no. 195/2002, which entered into force on 1 February 2003, and which in its Article 101 § 1 (b) made the annulment of the driving licence automatic. This Act was amended on several occasions, but the relevant provision was in place on the date when the final decision was rendered in the case at hand.