CASE OF BASHIN AND CHEKUNOV v. RUSSIA

THIRD SECTION

CASE OF BASHIN AND CHEKUNOV v. RUSSIA

(Application no. 44015/07)

JUDGMENT
 

STRASBOURG

14 January 2020

This judgment is final but it may be subject to editorial revision.

In the case of Bashin and Chekunov v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

Georgios A. Serghides, President,
Erik Wennerström,
Lorraine Schembri Orland, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 3 December 2019,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 44015/07) 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 two Russian nationals, Mr Mikhail Aleksandrovich Bashin (“the first applicant”) and Mr Sergey Viktorovich Chekunov (“the second applicant”), on 15 September 2007.

2.  The applicants were represented by Ms O. Tseytlina, a lawyer practising in St Petersburg. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3.  On 3 September 2015 notice was given to the Government of the complaints under Article 5 § 4 of the Convention and Article 4 § 1 of Protocol No. 7 to the Convention and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

4.  The Russian Government objected to the examination of the application by a Committee. Having considered the Government’s objection, the Court rejects it.

THE FACTSTHE CIRCUMSTANCES OF THE CASE

5.  The applicants were born in 1972 and 1986 respectively and live in St Petersburg.

6.  On 22 November 2006 the first applicant was accused of committing an administrative offence under Article 19.3 (resisting a lawful order from a public official or impeding his work) of the Code of Administrative Offences (“the CAO”). The second applicant was accused of an offence under Article 20.17 of the CAO (violating the entry regime for a secured facility).

7.  An administrative-offence record was compiled in respect of each applicant. The cases were then submitted to a justice of the peace.

8.  At the first applicant’s trial Officer G. stated that on 22 November 2006 he had seen the first applicant push Officer M. away from the doors of the meeting room in St Petersburg Legislative Assembly. Officer M. was also interviewed and stated that while a young man was asking G. about the way to the meeting room “four young men had irrupted into the meeting room, having pushed him [M.] away from its doors”.

9.  At the second applicant’s trial Officer G. made a similar statement relating to that applicant’s involvement in the events on 22 November 2006 except for any act of violence toward any public official.

10.  By two judgments of 27 November 2006 the justice of the peace convicted each applicant under Article 19.3 § 1 of the CAO and sentenced them to a period of ten days’ detention each.

11.  The trial court described the factual circumstances held against the first applicant as follows:

“The court has established that:

[The applicant] ... showed clear disobedience (неповиновение) as regards a lawful order from a police officer ... Specifically, after entering the St Petersburg Legislative Assembly without a valid document (an entry pass) and disregarding the orders from the police officer, when entering the meeting room he showed disobedience to the police by not presenting a valid document for his presence there, he pushed a police officer away from the door, entered the meeting room, was running around, shouting various slogans and throwing leaflets ... In response to a lawful order to leave the meeting room, he refused to comply. Physical force had to be used against him.”

12.  The trial court described the factual circumstances held against the second applicant in a similar manner, except for the part relating to pushing an officer. It held as follows:

“The court has established that:

[The applicant] ... showed clear disobedience (неповиновение) as regards a lawful order from a police officer ... Specifically, after entering the St Petersburg Legislative Assembly without a valid document (an entry pass) and disregarding the orders from the police officer, when entering the meeting room he showed disobedience to the police by not presenting a valid document for his presence there, he entered the meeting room, was running around, shouting various slogans and throwing leaflets ... In response to a lawful order to leave the meeting room, he refused to comply. Physical force had to be used against him.”

13.  It appears that the above judgments became final ten days later, in the absence of any appeal.

14.  In the meantime, on 24 November 2006, the authorities opened a criminal investigation against the applicants for offences falling within the scope of Article 318 § 1 (recourse to violence against a public official, without endangering his or her health or life; применение насилия не опасного для жизни или здоровья) and Article 319 (insulting a public official) of the Criminal Code. The decision to initiate criminal proceedings (постановление о возбуждении уголовного дела) reads as follows:

“[The applicants] and some others acted as a group and, with the intention of insulting public officials and using violence which did not endanger life or limb, pushed two officers, thereby causing them physical pain ... In the presence of other people [the applicants] were running around in the meeting room and were distributing leaflets ...

They are also accused of publicly insulting a public official: ... they were throwing out leaflets containing insulting remarks in respect of the President of the Legislative Assembly and other members of the Assembly ...”

15.  On 27 November and 12 December 2006 the first and second applicants respectively were formally given the status of an “accused” party in the criminal case. The related decision (постановление о привлечении в качестве обвиняемого) in respect of the first applicant reads as follows:

“[The first applicant] is accused of using violence, which did not endanger life or limb, against a law enforcement officer ... namely: ... acting with intent [the first applicant] pushed the officer in the chest using both hands, thereby causing physical pain ...”

It appears that a decision was issued in the same terms in respect of the second applicant.

16.  It seems that the subsequent bill of indictment (обвинительное заключение) in respect of the applicants contained the same description of the factual circumstances of the case.

17.  On 7 December 2006 the Oktyabrskiy District Court of St Petersburg authorised holding the applicants in detention on remand for the purposes of the criminal investigation. Thus, having served their ten-day terms of detention, the applicants were not released.

18.  On 2 February 2007 the District Court examined the authorities’ request for an extension of the detention on remand and granted it, authorising the authorities to hold the applicants in detention until 27 February 2007. It appears that the applicants did raise the fact that they had already been convicted of an administrative offence in relation to the same events, but the court did not address that matter. The detention order was amenable to appeal within ten days. The applicants each lodged an appeal, seemingly on 5 February 2007. They argued, inter alia, that they had already been convicted for the same facts in the administrative-offence proceedings. On 16 March 2007 the appeal court reasoned that the order of 2 February 2007 had been unlawful on procedural grounds and ordered a re‑examination of the matter by the District Court. Eventually, on 19 April 2007 the District Court dismissed the above request for an extension of the detention on remand in respect of the first applicant, and on 14 May 2007 the same decision was reached in respect of the second applicant.

19.  In the meantime (that is, before their appeal against the order of 2 February 2007 could be examined), on 22 February 2007 the District Court granted a further extension of their detention on remand, until 24 March 2007. The applicants appealed.

20.  On 23 March 2007 the District Court refused to issue any further extensions and ordered the applicants’ release. Thereafter, they remained under an undertaking not to leave their areas of residence (подписка о невыезде) until 28 November 2007.

21.  On an unspecified date, the criminal case was submitted for trial before the District Court. The court held five hearings.

22.  Eventually, the parties reached a friendly settlement.

23.  By a decision of 30 October 2007 the District Court upheld the settlement and discontinued the criminal case as it related to Article 318 § 1 of the Criminal Code. That decision reads as follows:

“According to the wording of the accusation against [the applicants], ... [the first applicant] intentionally used his left shoulder and forearm to push Officer M. in the chest and his left forearm, causing physical pain to the latter. [The second applicant] intentionally used his left shoulder and forearm to push Officer M. in the chest, causing physical pain to the latter ...

At the trial hearing Officer M. asked the court to discontinue the criminal case against the defendants in this part on account of the friendly settlement between them. The defendants did not object to the discontinuation for that reason.

Having heard the parties, the court grants the request for discontinuation ... It is the first time that the defendants are being accused of committing a criminal offence under Article 318 of the Criminal Code; that offence is of moderate gravity; they reached a friendly settlement with the victim; they apologised to him publicly; the victim had sustained no damage or harm on account of the defendants’ actions; the defendants did not object to the discontinuation on that legal ground.”

24.  On 28 November 2007 the District Court upheld a further settlement and discontinued the case as it related to Article 319 of the Criminal Code. That court decision reads as follows:

“According to the wording of the accusation against [the applicants], ... [the applicants] acted publicly and in the presence of members of the Legislative Assembly ... and journalists when they started distributing leaflets that contained insulting remarks in respect of the President of the Legislative Assembly and other members of the Assembly ...”

25.  The applicants did not appeal.RELEVANT DOMESTIC LAWDuplication of proceedings

26.  Article 50 of the Russian Constitution provides that no one should be convicted more than once of the same “crime” (преступление).

27.  Article 6 of the Criminal Code provides that no one can be held criminally liable twice for the same “crime” (преступление). Article 27 of the Code of Criminal Procedure (“the CCrP”) contained, at the relevant time, various grounds for the discontinuation of criminal prosecutions, including the existence of an earlier final criminal judgment on the same charges against the defendant or the existence of a final court decision to discontinue a criminal case brought on the same charges.

28.  Article 4.1 of the CAO provides that no one should be subject to administrative liability twice for the same “administrative offence”.

29.  Article 24.5 of the CAO provided, at the relevant time, that administrative-offence proceedings could not be opened or pursued if, on the basis of the same unlawful act or omission by the same person, there had already been a decision to open criminal proceedings (постановление о возбуждении уголовного дела).Detention in criminal cases

30.  A judge’s decision on detention was amenable to appeal before a higher court within three days after its delivery date (Article 108 § 11 of the CCrP). A statement of appeal was to be submitted to the first-instance court (Article 355 of the CCrP). The first-instance court was then to submit the detention file to the higher court. Having received this file, the second‑instance court was to examine, within three days, appeals lodged against the judge’s decisions on detention (Article 108 § 11).Other relevant provisions

31.  Article 19.3 § 1 of the CAO punished the following behaviour with a fine or administrative detention: disobeying the lawful order of a police officer, a military officer or a detention facility staff member in relation to the fulfilment of their official duties aimed at securing public order and public safety; and resisting the fulfilment of such duties by these public officials.

32.  Article 318 § 1 of the Criminal Code entitled “Use of violence against a public official” punished the use of violence not endangering life or health, or the threat to use such violence against a public official or his relatives in connection with the performance of his or her duties.

33.  Article 319 of the Criminal Code entitled “Insulting a public official” punished acts of publicly insulting a public official in the performance of his or her duties or in connection with the performance thereof.

THE LAWALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

34.  The applicants complained that the delays between February and May 2007 in the proceedings relating to their detention on remand had been in breach of Article 5 § 4 of the Convention, which reads as follows:

“4.  Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”Admissibility

35.  The Court notes that on 15 September 2007 the applicants lodged a complaint before the Court about the length of the appeal proceedings against the detention orders of 2 February 2007 resulting in the appeal decision of 16 March 2007, and about the related proceedings before the first-instance court thereafter (see paragraph 18 above). The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

36.  The Court also notes that in April 2008 the applicants first raised before the Court another complaint that the appeal against the detention orders of 22 February 2007 had not been examined speedily (see paragraph 19 above). Even accepting that at the time there was an issue with the time-limits for examining such appeals (see the Government’s submissions in paragraph 37 below), the applicants have not specified when that appeal was actually examined (which appears to be the case) and, if not, why they waited for over a year, until April 2008, before raising the related complaint before the Court. Accordingly, this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.Merits

37.  The Government acknowledged a violation of the speediness requirement under Article 5 § 4 of the Convention as regards the appeal proceedings in respect of the detention orders of 2 February 2007. The Government indicated that at the time the domestic courts had wrongly interpreted the Code of Criminal Procedure as setting a specific time-limit only for examining appeals against an initial detention order (see paragraph 30 above).

38.  The applicants’ appeals against their detention orders (extending their detention for twenty-five days) were examined by the appeal courts after some forty days – even after a lower court had already issued a new order extending their period of detention on remand (see paragraphs 18 and 19 above). This was in breach of the “speediness” requirement under Article 5 § 4 of the Convention (see, among many others, Starokadomskiy v. Russia, no. 42239/02, § 86, 31 July 2008, and Rodionov v. Russia, no. 9106/09, § 136, 11 December 2018). It is also noted in this connection that the applicants’ access to an appeal court was rendered devoid of its main useful purpose in terms of Article 5 § 4, that is, the possibility of release.

39.  There has accordingly been a violation of Article 5 § 4 of the Convention in respect of each applicant on that account.

40.  Lastly, the Court notes that when the parties were given notice of this part of the application they were invited to answer specific questions raised by the Court regarding, inter alia, the proceedings after 16 March 2007 resulting in the decisions of 19 April and 14 May 2007. Neither party has made any submissions or enter any plea in relation to that matter. The Court finds it unnecessary to examine separately that aspect of the complaint.ALLEGED VIOLATION OF ARTICLE 4 of protocol no. 7 to the convention

41.  The applicants complained that their prosecution for criminal offences had offended the requirements of Article 4 § 1 of Protocol No. 7 to the Convention, which reads 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 parties’ submissions

42.  The Government argued that the applicants had not alerted the authorities to the violation of the ne bis in idem principle in their cases. They could have appealed against the judgments against them under the CAO or against the decisions to discontinue the criminal proceedings on account of the friendly settlement between the parties. As to the merits of the complaints, the Government argued that, under Russian law, a person could not be found liable for the same offence under both the CAO and the Criminal Code. Under the CAO the applicants had been convicted of disobeying a lawful order from a public official whereas under the Criminal Code they had been prosecuted in relation to the use of violence against a public official. The criminal case files contained copies of the judgments issued against the applicants under the CAO and so the criminal-court judges had been aware of their prosecution for administrative offences and had examined the related judgments in the course of the criminal trials. At the same time, the applicants had not put forward any specific arguments in that respect. Moreover, when accepting a friendly settlement and the discontinuation of the criminal proceedings, the applicants had acknowledged their guilt and had agreed to make good the damage caused to the victims. Thus, their complaint to the Court amounted to an abuse of the right of petition.

43.  The applicants argued that Russian law did not make provision for the application of the ne bis in idem principle to bar criminal prosecution on account of a final judgment in administrative-offence proceedings. The absence of such provisions in Russian law had prevented the criminal courts from applying this principle in respect of the applicants. The Government had not referred to any domestic legal provision or jurisprudence for their non-exhaustion argument which suggested that Russian law prohibited the institution of criminal proceedings after a final judgment had been delivered under the CAO. The applicants could have tried to obtain the discontinuation of the CAO case under Article 24.5 of the CAO (see paragraph 29 above). However, they had chosen not to do so, as that course of action would have automatically given way to criminal proceedings being instituted on the basis of the same facts, which would have had more serious consequences for them. Moreover, the domestic case-law was not settled as regards the possibility of annulling a final administrative conviction under Article 24.5 of the CAO. The Government had not made any submissions on that point. In any event, the thrust of the issue under Article 4 § 1 of Protocol No. 7 had arisen because of the criminal proceedings, and the annulment of the CAO conviction would not constitute adequate redress. Similarly, in view of the Court’s findings in Sergey Zolotukhin v. Russia ([GC], no. 14939/03, § 118, ECHR 2009), an appeal against the court decision upholding the friendly settlement in the criminal case offered no prospect of success for the issue under Article 4 § 1 of Protocol No. 7.The Court’s assessmentAdmissibility

(a)   As regards the charge under Article 319 of the Criminal Code

44.  The Court notes that the prosecution under Article 319 of the Criminal Code concerned the content of the leaflets distributed by the applicants (see paragraphs 23 and 33 above). The applicants were accused of publicly insulting the President of the Legislative Assembly and other members of the Assembly. The factual basis for that accusation was not substantially the same as the facts underlying the conviction under Article 19.3 of the CAO on account of disobedience to a police officer, namely Officer M. (see paragraphs 11, 12 and 31 above). Accordingly, the applicants’ complaint under Article 4 § 1 of Protocol No. 7 to the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

(b)   As regards the charge under Article 318 of the Criminal Code

(i)  Second applicant

45.  The Court observes that in the criminal proceedings the authorities focused on the violence used by each applicant against Officer M., namely using “his left shoulder and forearm to push Officer M. in the chest and his left forearm, causing physical pain to the latter” (see paragraphs 11, 12 and 32 above). Unlike for the first applicant, the judgment in the CAO case against the second applicant omitted that particular factual circumstance. The Court does not find it established that the facts underlying the charge against the second applicant under Article 318 of the Criminal Code were substantially the same as in his CAO case. Accordingly, the second applicant’s complaint under Article 4 § 1 of Protocol No. 7 to the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

(ii)  First applicant

46.  As the Government have acknowledged, and as follows from the case file, both the prosecuting authority and the criminal court were aware that the applicants had final convictions in respect of related administrative offences. Thus it cannot be said that the domestic authorities were not made aware of the possible duplication of proceedings and were not afforded an opportunity to remedy it. It is also noted that the applicants raised the matter when appealing against one of the detention orders (see paragraph 18 above).

47.  The situation complained of under Article 4 § 1 of Protocol No. 7 arose once the CAO judgments had become final, when the applicants were “liable to be tried” again on account of the pending criminal investigation against them. An appeal against the CAO judgments would not have been directly relevant to that state of affairs. In any event, the Government have not specified any legal provision or jurisprudence indicating that the applicants would have had any reasonable prospect of success in seeking, by way of an appeal under the CAO, the discontinuation of the criminal proceedings on account of the ne bis in idem principle. Similarly, it is unclear how appeals against the decisions upholding the friendly settlements might have dealt with and afforded redress for the substance of the complaint under Article 4 § 1 of Protocol No. 7.

48.  The Court calls attention to the fact that in 2009 it stated in Sergey Zolotukhin (cited above, § 118), in relation to the facts of that case which dated back to 2002 and 2003, as follows:

“In the Russian legal system, however, the prohibition on repetition of proceedings is restricted to the criminal justice sphere. Under the Code of Criminal Procedure, a previous conviction for an essentially similar administrative offence does not constitute a ground for discontinuing the criminal proceedings ... Similarly, the Russian Constitution only protects an individual against a second conviction for the same “crime” ... [T]he Russian courts do not have at their disposal legal provisions which would allow them to avoid a repetition of proceedings in a situation where the defendant is on trial for an offence of which he or she has already been finally convicted or acquitted under the Code of Administrative Offences.”

49.  The above statement about the state of national law and judicial practice remained true throughout the period of time in 2006 and 2007 when the criminal case against the applicants was being determined.

50.  Thus the Court is not satisfied that the first applicant has failed to comply with the exhaustion requirement (compare Lucky Dev v. Sweden, no. 7356/10, § 40, 27 November 2014). The Government’s objection is therefore dismissed.

51.  Lastly, Article 4 § 1 of Protocol No. 7 is not confined to the right not to be punished twice but extends to the right not to be tried twice for the same offence, or even to be liable to have a second trial in that regard. It applies even where the individual has merely been prosecuted in proceedings that have not resulted in a conviction (see Sergey Zolotukhin, cited above, § 83). Thus, the first applicant’s complaint that such a situation had arisen does not constitute, per se, an abuse of the right of petition.

52.  The Court notes that the first applicant’s complaint in relation to the charge under Article 318 of the Criminal Code is complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.Merits

53.  The applicable principles are summarised in the case of Sergey Zolotukhin (cited above, §§ 78-84). The present case is similar to that case, Khmel v. Russia (no. 20383/04, §§ 57-70, 12 December 2013) and Šimkus v. Lithuania (no. 41788/11, §§ 41-52, 13 June 2017).

54.  Article 4 § 1 of Protocol No. 7 sets out the three components of the ne bis in idem principle: the two sets of proceedings must be “criminal” in nature; they must concern the same facts; and there must be duplication of the proceedings.

(a)   Whether the two sets of proceedings were “criminal” in nature

55.  It has not been contested, and the Court considers, that both sets of proceedings were “criminal” in the meaning of Article 4 § 1 of Protocol No. 7 (see, among others, Mikhaylova v. Russia, no. 46998/08, §§ 57-74, 19 November 2015 as regards the Russian CAO).

(b)   Whether the two sets of proceedings concerned the same facts

56.  Article 4 § 1 of Protocol No. 7 prohibits the prosecution or trial of a second “offence” in so far as it arises from identical facts, or facts which are substantially the same (see Sergey Zolotukhin, cited above, § 82), that is, having the same material object, or relating to the same conduct over the same period of time (see Kapetanios and Others v. Greece, nos. 3453/12 and 2 others, § 68, 30 April 2015, and Grande Stevens and Others v. Italy, nos. 18640/10 and 4 others, § 224, 4 March 2014). For the prohibition to apply, the facts concerned should be inextricably linked together in time and space, and be among those whose existence had to be demonstrated in order to institute proceedings or secure a conviction (see Boman v. Finland, no. 41604/11, § 33, 17 February 2015, and Sergey Zolotukhin, cited above, § 84).

57.  Turning to the present case, in so far as Article 4 § 1 of Protocol No. 7 is concerned, it is not the Court’s task to determine whether it was appropriate to prosecute the first applicant under the CAO or the Criminal Code or to determine which elements, including any factual elements, were the necessary ingredients of an offence under domestic law, that is those that have to “be demonstrated in order to institute proceedings or secure a conviction” for either “disobeying a lawful order from a public official” or “the use of violence against a public official without endangering [his or her] health or life” (compare Stepan Zimin v. Russia, nos. 63686/13 and 60894/14, §§ 74-76, 30 January 2018 in the context of Article 11 of the Convention).

58.  In this connection the Court relies on the statements of facts used to describe the administrative offence in the final judgment convicting the first applicant on the one hand (see paragraphs 11-12 above), and the prosecuting documents in the criminal proceedings against them on the other (see paragraphs 14, 15 and 23 above).

59.  The Court observes that in the criminal proceedings relating to Article 318 of the Criminal Code the authorities focused on the violence used by each applicant against Officer M., namely using “his left shoulder and forearm to push Officer M. in the chest and his left forearm, causing physical pain to the latter” (see paragraphs 11, 12 and 32 above). Recourse to violence (not causing health damage) was an essential element in the criminal offence under Article 318 § 1 of the Criminal Code.

60.  Recourse to violence was not an indispensable element for instituting prosecution under Article 19.3 § 1 of the CAO. However, the trial court found it pertinent to list his recourse to violence against a public official when describing the factual circumstances of the “disobedience” held against the first applicant and when finding him guilty. The court specified that it consisted in that the applicant had not complied with an order to present a valid document, “[had] pushed [the] police officer away from the door”, had entered the meeting room and had refused to leave it. So it is reasonable to conclude that in the administrative-offence proceedings against the first applicant the act of pushing a police officer could be and was actually classified on the facts of the case as a specific manifestation of the “disobedience” to that official that was held against the applicant.

61.  Accordingly, the factual elements held against the first applicant in the second (criminal) set of proceedings “embraced” an essential part of the facts that had been held against him in the CAO case (compare Sergey Zolotukhin, § 97; Khmel, § 65; and Šimkus, § 51, all cited above). Having said this, it appears that each of the elements held against the applicant in the CAO case, including the pushing of a police officer following an order to present a valid document, was in itself sufficient for prosecuting under Article 19.3 of the CAO (as “disobedience” or “resisting the fulfilment of [his or her] official duties by a public official”) (see paragraph 31 above). Indeed, the Government have not argued otherwise. In the Court’s view, the issue under Article 4 § 1 of Protocol No. 7 is not resolved on account on the fact that the criminal charge contained only one aspect of the facts held against the applicant in the CAO case, in which the conviction had also been based on his disobedience by way of continuing to be present in the meeting room of the legislative assembly despite Officer’s M.’s order to leave it. The fact remains that the applicant had already been convicted in the CAO case for pushing Officer M. The Court concludes that the facts held against the first applicant in the criminal case were “substantially the same” as in the CAO case.

62.  Thus, it remains to be ascertained whether there was duplication of the proceedings on account of the first applicant’s conviction under Article 19.3 of the CAO and his prosecution under Article 318 of the Criminal Code.

(c)   Whether there was duplication of the proceedings in respect of the first applicant

63.  The first applicant was convicted by a final judgment and served the term of detention ordered for the administrative offence. Prior to that conviction, he also became subject of criminal proceedings. Later on, he was remanded in custody in that connection. Those proceedings continued for months, during which time the applicant participated in the investigation and stood trial.

64.  The way in which the domestic authorities dealt with two sets of proceedings may be relevant for the determination of an applicant’s status as a “victim” of an alleged violation of Article 4 § 1 of Protocol No. 7 in accordance with the consistent criteria established in its case-law (as set out in Sergey Zolotukhin, cited above, §§ 113-17). As the Government have acknowledged (see paragraph 42 above), the domestic authorities permitted the duplication of proceedings against the applicant up to the stage of the trial proceedings, in the full knowledge of their previous administrative penalties (compare Šimkus, cited above, §§ 18 and 47, in which a second set of proceedings was terminated as time-barred, and Zigarella v. Italy (dec.), no. 48154/99, ECHR 2002‑IX (extracts), in which the second set of proceedings had been quickly terminated when it had become clear that the applicant’s actions had already been the subject of a final judgment in an earlier set of proceedings, even before the applicant had been made aware of the institution of the second set of proceedings).

65.  As already indicated, Article 4 § 1 of Protocol No. 7 applies where the individual is “liable to be tried” a second time, regardless of whether there have been a second set of proceedings that resulted in a conviction. Accordingly, the fact that the proceedings were eventually resolved by means of a friendly settlement has no bearing on the complaint under that provision (see Sergey Zolotukhin, § 83; Kapetanios and Others, § 68; and Grande Stevens and Others, § 220, all cited above).

66.  Lastly, the Court reiterates that Article 4 § 1 of Protocol No. 7 does not exclude the conduct of dual proceedings, even to their term, provided that certain conditions are fulfilled. In particular, for the Court to be satisfied that there is no duplication of trial or punishment as proscribed by Article 4 § 1 of Protocol No. 7, the respondent State must demonstrate convincingly that the dual proceedings in question have been “sufficiently closely connected in substance and in time” (see A and B v. Norway [GC], nos. 24130/11 and 29758/11, §§ 130-32, 15 November 2016). The Court has been given no reason to consider that the “integrated approach” was applicable and that the above requirements were complied with in the present case. The parallel nature of the two sets of proceedings in late November and early December 2006 (see paragraphs 10-14 above) did not prevent the applicability of Article 4 § 1 of Protocol No. 7.

67.  The Court concludes that there was duplication of proceedings in that after the judgment convicting the first applicant in the CAO case had become final, he was prosecuted under Article 318 § 1 of the Criminal Code for the facts that were substantially the same.

(d)   Conclusion

68.  As regards the first applicant, there has accordingly been a violation of Article 4 § 1 of Protocol No. 7 to the Convention in relation to his prosecution under Article 318 § 1 of the Criminal Code.APPLICATION OF ARTICLE 41 OF THE CONVENTION

69.  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.”Damage

70.  The applicants claimed compensation in respect of non-pecuniary damage, leaving the amount to the Court’s discretion.

71.  The Government made no specific comment.

72.  Having regard to the nature and scope of the violations, the Court awards 9,750 and 5,000 euros (EUR) to the first and second applicants respectively in respect of non-pecuniary damage, plus any tax that may be chargeable.Costs and expenses

73.  The applicants claimed EUR 570 for the expenses incurred by a non‑governmental organisation under a contract, entered into with the applicants’ representative before the Court, to represent them following notice of the case being given to the respondent Government.

74.  The Government made no specific comment.

75.  The applicants have incurred no costs personally and thus cannot claim their reimbursement to them under Article 41 of the Convention. Regard being had to the documents in its possession and to its case-law, the Court rejects the claim.Default interest

76.  The Court considers it appropriate that the default interest rate 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,Declares the applicants’ complaint under Article 5 § 4 of the Convention (as regards the appeal against the orders of 2 February 2007) and the first applicant’s complaint under Article 4 § 1 of Protocol No. 7 to the Convention admissible (as regards his prosecution under Article 318 § 1 of the Criminal Code);Holds that there is no need to examine the remaining aspect of the complaint under Article 5 § 4 of the Convention;Declares the remainder inadmissible;Holds that there has been a violation of Article 5 § 4 of the Convention in respect of each applicant on account of the appeal proceedings against the detention orders of 2 February 2007;Holds that there has been a violation of Article 4 § 1 of Protocol No. 7 to the Convention in respect of the first applicant on account of his prosecution under Article 318 of the Criminal Code;Holds

(a)  that the respondent State is to pay the following amounts, within three months, plus any tax that may be chargeable, in respect of non‑pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)        EUR 9,750 (nine thousand seven hundred and fifty euros) to the first applicant;

(ii)      EUR 5,000 (five thousand euros) to the second applicant;

(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 applicants’ claim for just satisfaction.

Done in English, and notified in writing on 14 January 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stephen Phillips Georgios A. Serghides
RegistrarPresident

 

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