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FIRST
SECTION
CASE OF SERGEY ZOLOTUKHIN v. RUSSIA
(Application
no. 14939/03)
JUDGMENT
STRASBOURG
7 June
2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Sergey Zolotukhin v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs N. Vajić,
Mr A.
Kovler,
Mr K. Hajiyev,
Mr D.
Spielmann,
Mr S.E. Jebens, judges,
and Mr S.
Nielsen, Section Registrar,
Having
deliberated in private on 15 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 14939/03) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Sergey
Aleksandrovich Zolotukhin (“the applicant”), on 22
April 2003.
- The
applicant was represented before the Court by Mr K. Koroteyev, Ms D.
Vedernikova, Mr W. Bowring and Mr P. Leach, lawyers with the European
Human Rights Advocacy Centre (EHRAC). The Russian Government (“the
Government”) were represented by Mr P. Laptev,
Representative of the Russian Federation at the European Court of
Human Rights.
- The
applicant alleged, in particular, that he had been tried again for an
offence of which he had previously been convicted.
- By
a decision of 8 September 2005 the Court declared the application
partly admissible.
- The
applicant and the Government each filed observations on the merits
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1966 and lives in Voronezh.
A. Administrative proceedings against the applicant
- On
4 January 2002 the applicant was arrested for having brought his
girlfriend into the military compound without authorisation. At 9.45
a.m. he was taken to police station no. 9 of the Department of the
Interior of the Leninskiy District of Voronezh-45 (the “police
station”).
- According
to reports by Captain S. and Lieutenant-Colonel N., the applicant was
drunk, behaved insolently and verbally abused police officers using
obscene language. He ignored the rebukes and warnings issued to him.
After he attempted to escape, the officers handcuffed him.
- Major
K., the officer in charge of the police station, drew up an
administrative offences report, noting that the applicant had
committed offences under Articles 158 (“Minor disorderly acts”)
and 165 (“Persistent refusal to comply with lawful police
orders”) of the RSFSR Code of Administrative Offences. The
report was then submitted to the court.
- On
the same day the Gribanovskiy District Court found the applicant
guilty of an offence under Article 158 of the Code of Administrative
Offences and sentenced him to three days' administrative detention.
The judgment was not amenable to appeal and took immediate effect.
B. Criminal proceedings against the applicant
- On
23 January 2002 criminal case no. 81 was opened against the applicant
on suspicion of his having committed disorderly acts, an offence
under Article 213 § 2 (b) of the Criminal Code, on 4 January
2002 at the police station. The investigation was assigned to Major
V.
- On
24 January 2002 Major K. ordered the applicant's detention on remand
for “disorderly acts, including resisting a public official
dealing with a breach of public order”.
- On
1 February 2002 two further cases (nos. 82 and 83) were opened
against the applicant. In case no. 82 he was suspected of a violent
sexual assault against minors. In case no. 83 the applicant was
charged with the theft of a tape recorder.
- On
6 February 2002 all three cases were joined under the number 81 and
assigned to Major V.
- On
26 February 2002 the joined case file was transferred to an
investigator with the Voronezh town prosecutor's office.
- On
5 April 2002 the applicant was formally indicted on all the above
charges. His actions on 4 January 2002 were additionally
characterised as threatening violence against a public official
(Article 318 § 1 of the Criminal Code) and insulting a public
official (Article 319).
- On
2 December 2002 the Gribanovskiy District Court delivered its
judgment. It found the applicant guilty of aggravated rape of minors,
relying on statements by two victims, the victims' mother (the
victims were sisters), the applicant's wife and the applicant's
girlfriend, and on the results of a forensic examination of the
victims.
- The District Court acquitted the applicant of the
offence under Article 213 § 2 for the following reasons:
“On the morning of 4 January 2002 in ... police
station no. 9 [the applicant], in an inebriated state, swore at ...
Ms Y. and Mr S., threatening to kill the latter. He refused to comply
with a lawful request by Captain S. ..., behaved aggressively, pushed
S. away and attempted to leave. Having examined the evidence produced
at the trial, the court considers that [the applicant's] guilt has
not been established. On 4 January 2002 [the applicant] was subjected
to three days' administrative detention for the same actions
[characterised] under Articles 158 and 165 of the Code of
Administrative Offences. No appeal was lodged against the judicial
decision, nor was it quashed. The court considers that there is no
indication of a criminal offence under Article 213 § 2 (c) in
the defendant's actions and acquits him of this charge.”
- The
District Court further found the applicant guilty of insulting a
State official under Article 319 of the Criminal Code. It established
that the applicant had sworn at Major K. and threatened him while the
latter had been drafting the report on the administrative offence
under Articles 158 and 165 in his office at the police station. Major
K.'s statements to that effect were corroborated by depositions from
Captain S., Lieutenant Colonel N. and Ms Y., who had also been
present in K.'s office.
- Finally,
the District Court pronounced the applicant guilty of threatening
violence against a public official under Article 318 § 1 of the
Criminal Code. On the basis of the statements by Major K.,
Lieutenant Colonel N. and the applicant's girlfriend it found
that, after the administrative offence report had been finalised, the
applicant and his girlfriend had been taken by car to the
Gribanovskiy district police station. In the car the applicant had
continued to swear at Major K. He had also spat at him and said that,
once released, he would kill him and abscond. Major K. had perceived
the threat as a real one because the applicant had a history of
abusive and violent behaviour.
- The
applicant was sentenced to five years and six months' imprisonment in
a correctional colony and to mandatory treatment for alcohol
addiction.
- On
15 April 2003 the Voronezh Regional Court upheld the judgment in its
entirety on the applicant's appeal.
II. RELEVANT DOMESTIC LAW
- The
relevant provisions of the RSFSR Code of Administrative Offences of
20 June 1984 (in force at the material time) read as follows:
Article 158 Minor disorderly acts
“Minor disorderly acts, that is, utterance of
obscenities in public places, offensive behaviour towards others and
other similar acts that breach the public order and peace, shall be
punishable by a fine of between ten and fifteen months' minimum wages
or by one to two months' correctional work combined with the
withholding of twenty percent of the offender's wages, or – if,
in the circumstances of the case and having regard to the offender's
character, these measures are not deemed to be adequate – by up
to fifteen days' administrative detention.”
Article 165 Persistent refusal to comply with a
lawful order or a request by a police officer...
“Persistent refusal to comply with a lawful order
or a request by a police officer ... shall be punishable by a fine of
between ten and fifteen months' minimum wages ... or by one to two
months' correctional work combined with the withholding of twenty
percent of the offender's wages, or – if, in the circumstances
of the case and having regard to the offender's character, these
measures are not deemed to be adequate – by up to fifteen days'
administrative detention.”
- The
relevant provisions of the Criminal Code of the Russian Federation
(version in force at the material time) read as follows:
Article 213 Disorderly acts
“1. Disorderly acts, that is, serious
breaches of the public order or flagrant displays of disrespect to
the community, combined with the use of violence towards individuals
or a threat to use violence or to destroy or damage the property of
others, shall be punishable ... by up to two years' deprivation of
liberty.
2. The same acts, if committed:
...
(b) [“б”
in the original] while resisting a public official or another person
fulfilling his or her duty to maintain the public order or dealing
with a breach of the public order;
(c) [“в”
in the original] by a person with a previous conviction for
disorderly acts,
– shall be punishable by between 180 and 240
hours' mandatory work or by one to two years' correctional work or up
to five years' deprivation of liberty.”
Article 318 Use of violence against a public official
“1. The use of violence not endangering life or
health, or a threat to use such violence, against a public official
or his relatives in connection with the performance of his or her
duties shall be punishable by a fine of between 200 to 500 months'
minimum wages ... or by three to six months' detention or up to five
years' deprivation of liberty...”
Article 319 Insulting a public official
“Publicly insulting a public official in the
performance of his or her duties or in connection with the
performance thereof shall be punishable by a fine of between 50 and
100 months' minimum wages, ... 120 to 180 hours' mandatory work or
six months to a year's correctional work.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7
- The
applicant complained under Article 4 of Protocol No. 7 that, after he
had already served three days' detention for disorderly acts
committed on 4 January 2002, he had been re-detained and tried
again for the same offence. The relevant part of Article 4 of
Protocol No. 7 provides as follows:
“1. No one shall be liable to be tried
or punished again in criminal proceedings under the jurisdiction of
the same State for an offence for which he has already been finally
acquitted or convicted in accordance with the law and penal procedure
of that State...”
- The
applicant acknowledged that he had not been convicted or punished
twice, but maintained that he had been tried twice before the
District Court in respect of the same offences. His first conviction
had been “criminal” in nature, having regard to the
nature and severity of the penalty (deprivation of liberty). The
second set of proceedings had been based on the same facts, as the
offences of “disorderly acts” (Article 158 and
Article 213) and “refusal to comply with or resistance to
a lawful order” (Article 165 and Articles 318 and 319) had the
same essential elements. The applicant pointed out that the
authorities had opened and carried on a new set of proceedings
against him in full knowledge of his previous conviction.
- The
Government submitted that the District Court had acquitted the
applicant of the charge of disorderly acts under Article 213 § 2
of the Criminal Code and thereby remedied an earlier violation of the
applicant's rights committed by the investigation. The applicant's
conviction under Articles 318 and 319 of the Criminal Code related to
the events that occurred after the report on an administrative
offence had been drawn up. Thus, the applicant had not been
previously tried for either insulting a public official or
threatening to use violence.
- The
Court reiterates that the aim of Article 4 of Protocol No. 7 is to
prohibit the repetition of criminal proceedings that have been
concluded by a final decision (see Franz Fischer v. Austria,
no. 37950/97, § 22, 29 May 2001, and Gradinger v.
Austria, judgment of 23 October 1995, Series A no. 328 C,
§ 53). In the present case the applicant was first found
guilty of disorderly acts in administrative proceedings and served
three days' detention; a charge of disorderly acts was subsequently
levelled against him in criminal proceedings. Although the
applicability of Article 4 of Protocol No. 7 was not in dispute
between the parties, the Court has to ascertain whether the
applicant's initial administrative detention followed on from a
conviction “in accordance with the law and penal procedure”.
- The
Court notes that the words “in criminal proceedings” and
“penal procedure” used in the text of Article 4 of
Protocol No. 7 – rendered in the French text as “pénalement”
and “procédure pénale” – must be
interpreted in the light of the general principles concerning the
corresponding words “criminal charge” (“infraction
pénale”) and “penalty” respectively in
Articles 6 and 7 of the Convention. Hence, the Court will have regard
to such factors as the legal classification of the offence
under national law; the nature of the offence; the national legal
characterisation of the measure; its purpose, nature and
degree of severity; whether the measure was imposed following
conviction for a criminal offence, and the procedures involved in the
making and implementation of the measure (see Storbråten v.
Norway (dec.), no. 12277/04, ECHR
2007 ... (extracts), and Nilsson v. Sweden
(dec.), no. 73661/01, ECHR 2005 ..., with further
references).
- As to the domestic legal classification, the Court has
previously found that the sphere defined in the Russian and some
other legal systems as “administrative” embraces some
offences that are criminal in nature but too trivial to be governed
by criminal law and procedure (see Menesheva v. Russia,
no. 59261/00, § 96, ECHR 2006 ...). Loss of
liberty imposed as punishment for an offence belongs in general to
the criminal sphere, unless by its nature, duration or manner of
execution it is not appreciably detrimental (see Ezeh and Connors
v. the United Kingdom [GC], nos. 39665/98 and 40086/98,
§§ 69-130, ECHR 2003 X). The offence of minor
disorderly acts under Article 158 of the Code of Administrative
Offences was punishable by up to fifteen days' deprivation of
liberty. The administrative proceedings against the applicant
resulted in a three day period of detention which he served in
the detention unit of the police station. These factors enable the
Court to conclude that the offence of disorderly acts of which the
applicant was found guilty on 4 January 2002 amounted to a “criminal”
conviction for the purposes of Article 4 of Protocol No. 7.
- The
Court further recalls that Article 4 of Protocol No. 7 prohibits,
among other things, repeated convictions based on the same conduct of
the accused. However, this provision cannot be interpreted so as to
exclude repeated convictions based on conduct shown on a number of
distinct occasions, even if in essence the conduct was substantially
similar to that previously shown (see Smolickis v. Latvia (dec.),
no. 73453/01, 27 January 2005, and Raninen v. Finland,
no. 20972/92, Commission decision of 7 March 1996, Decisions and
Reports 84, p. 17).
- The
Government maintained that the applicant's conviction for insulting
and threatening violence against public officials had been based on a
set of facts different from that on which his conviction for
disorderly acts had been founded. The Court accepts the Government's
submission. It observes that the disorderly acts imputed to the
applicant had been committed on the morning of 4 January 2002, before
the administrative offence report was drafted. It further transpires
from the District Court's judgment that the applicant had insulted
and threatened police officers with violence during the time when
the administrative report concerning his disorderly acts was being
prepared. He had been verbally abusive after his arrival at
the police station and in the car on the way to it. It follows that
the offences at issue were separate and subsequent in time (cf. Asci
v. Austria (dec.), no. 4483/02, 19 October 2006).
Accordingly, there was no repetition of criminal proceedings as
regards the applicant's conviction under Articles 318 and 319 of the
Criminal Code.
- Nonetheless,
the Government did not dispute that the applicant's punishment in the
administrative proceedings and his subsequent prosecution under
Article 213 of the Criminal Code had been connected with the same
facts, that is, his disorderly conduct before his arrival at the
police station on the morning of 4 January 2002. The Court
observes that the offence of “minor disorderly acts” as
defined in Article 158 of the Code of Administrative Offence and that
of “disorderly acts” under Article 213 of the Criminal
Code had the same essential elements, namely disturbance of the
public order (see, by contrast, Ponsetti and Chesnel v. France
(dec.), nos. 36855/97 and 41731/98, 14 September 1999,
ECHR-1999-VI, Oliveira v. Switzerland, judgment of 30
July 1998, Reports of Judgments and Decisions 1998 V,
§ 27, Isaksen v. Norway (dec.), no. 13596/02,
2 October 2003, and Franz Fischer, cited above, §
22). It follows that, as regards the proceedings instituted on the
charge of disorderly acts under Article 213 of the Criminal Code, the
applicant was prosecuted for the same offences of which he had
previously been convicted under Article 158 of the Code of
Administrative Offences.
- The
Court is not persuaded by the Government's contention that there had
been no violation of Article 4 of Protocol No. 7 because the
applicant had been acquitted of the charge under Article 213 of the
Criminal Code. It recalls that Article 4 of Protocol No. 7 is not
confined to the right not to be punished twice but extends to the
right not to be prosecuted or tried twice (see Franz
Fischer, cited above, § 29, and Zigarella v. Italy
(dec.), no. 48154/99, 3 December 2002). Were this not the case,
it would not have been necessary to add the word “punished”
to the word “tried” since this would be mere duplication.
Article 4 of Protocol No. 7 finds application even where the
individual has merely been prosecuted in proceedings that have not
resulted in a conviction (see Zigarella, cited above). The
Court has emphasised that Article 4 of Protocol No. 7 contains three
distinct guarantees and provides that no one shall be (i) liable to
be tried, or (ii) tried, or (iii) punished for the same offence (see
Nikitin v. Russia, no. 50178/99, § 36, ECHR
2004 ...).
- Thus,
the fact that the applicant was eventually acquitted of the charge of
disorderly acts has no bearing on his claim that he had been
prosecuted and tried on that charge for a second time. After the
applicant had served three days' detention for the disorderly acts
committed on the morning of 4 January 2002, he was charged with
essentially the same offence on 23 January 2002 and remanded in
custody. Until 1 February 2002 that charge remained the only charge
against him. It was not subsequently dismissed; instead, the
prosecution continued for a further ten months until the trial court
delivered its judgment on 2 December 2002. The present case is
therefore distinguishable from the Nikitin case (cited above)
in which the Court found no violation of Article 4 of Protocol No. 7
because the criminal proceedings against the applicant had not been
re-opened despite the prosecution's request to that effect.
- The
Court further reiterates that Article 4 of Protocol No. 7 does not
necessarily extend to all proceedings instituted in respect of the
same offence (see Falkner v. Austria (dec.), no. 6072/02, 30
September 2004). Its object and purpose imply that, in the absence of
any damage proved by the applicant, only new proceedings brought in
the knowledge that the defendant has already been tried in the
previous proceedings would violate this provision (see Zigarella,
cited above). For that reason in the Zigarella case the Court
rejected the applicant's complaint under Article 4 of Protocol No. 7,
because the domestic courts had terminated the proceedings as soon as
they had been informed that there had been a breach of the non bis
in idem principle.
- The
situation obtaining in the present case is different from that in the
Zigarella case. The Court observes that the criminal
proceedings against the applicant on the charge of disorderly acts
were instituted and conducted by the same police department which had
obtained the applicant's administrative conviction by the District
Court on 4 January 2002. The same police officer, Mr K., took part in
both sets of proceedings within a short period of time – only
nineteen days elapsed between the first conviction and the
institution of new criminal proceedings. The same District Court and
the same judge tried both cases. In these circumstances, the Court
finds that the domestic authorities permitted duplication of criminal
proceedings in full knowledge of the applicant's previous conviction
of the same offence.
- Finally,
the Court observes that the violation of the non bis in idem
principle was not the reason for the applicant's acquittal. It
clearly follows from the District Court's judgment that the acquittal
was founded on a substantive ground, namely the fact that the
prosecution had not proved the applicant's guilt to the standard of
proof required in criminal, rather than administrative, proceedings
(see paragraph 18 above). The judgment contained no acknowledgement
of the duplication of proceedings (see, by contrast, Zigarella,
cited above).
- The
Court finds that the applicant was prosecuted and tried for a second
time for an offence of which he had already been convicted and for
which he had served a term of detention. There has accordingly been a
violation of Article 4 of Protocol No. 7.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed compensation for the non-pecuniary damage sustained
as a result of his having been tried a second time for the same
offence. He left the determination of the amount to the Court's
discretion.
- The
Government submitted that the finding of a violation would constitute
sufficient just satisfaction in the present case.
- The
Court observes that the repeated criminal proceedings against the
applicant were pending for some ten months and that for some time his
prosecution for the same offence was the sole ground for his
detention. In these circumstances, the finding of a violation cannot
be said to constitute sufficient just satisfaction for the sense of
injustice and frustration the applicant must have felt. Making its
assessment on an equitable basis, the Court awards the applicant
1,500 euros (EUR) in respect of non-pecuniary damage, plus any tax
that may be chargeable on that amount.
B. Costs and expenses
- The
applicant claimed 12,700 Russian roubles for the work of two lawyers
in the domestic proceedings, EUR 500 for ten hours' work by his
representative Mr Koroteyev, 300 pounds sterling (GBP) for three
hours' work by Mr Leach and GBP 138.10 for translation costs.
- The
Government submitted that the applicant had failed to produce
invoices in support of his claims.
- The
Court observes that the applicant submitted documents in support of
his claims. Having regard to the material in its possession, the
Court awards the applicant EUR 1,000 in respect of costs and
expenses, plus any tax that may be chargeable on that amount, and
dismisses the remainder of his claim.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been a violation of Article
4 of Protocol No. 7;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into Russian roubles at the rate applicable
at the date of settlement:
(i) EUR
1,500 (one thousand five hundred euros) in respect of non-pecuniary
damage;
(ii) EUR
1,000 (one thousand euros) in respect of costs and expenses;
(iii)
any tax that may be chargeable on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 7 June 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
