Communicated on 9 July 2019
THIRD SECTION
Applications nos. 58112/18 and 8672/19
Nikita Valeryevich SHEVCHENKO against Russia
and Denis Aleksandrovich MIKHAYLOV against Russia
lodged on 17 November 2018 and 29 January 2019 respectively
SUBJECT MATTER OF THE CASES
Application no. 58112/18
The applicant was convicted under Article 20.2 § 1 of the Code of Administrative Offences (CAO) because, as the organiser of a rally, he should have informed potential demonstrators that this rally had not been approved by the local authority, and should have ceased his pre-rally campaigning. In separate proceedings the applicant was also convicted under Article 20.2 § 8[1] of the CAO (which concerns “repeated commission” of an offence relating to the regulations on public rallies) with reference to the above facts and also an earlier similar offence relating to another public event. The appeal court dismissed as misconceived the applicant’s argument relating to the ne bis in idem principle.
Application no. 8672/19
In June 2018 the applicant was sentenced to 25-day detention in relation to his participation in a protest rally from 2 p.m. to 5 p.m. on 5 May 2018. In a separate case, on 2 July 2018 he was sentenced to a fine of 300,000 Russian roubles (4,000 euros) on account of acting as the rally organiser (because between noon and 2 p.m. on 5 May 2018 he had made reposts on the Navalnyy Team/St Petersburg webpage from another Internet page) and failing – in such capacity – to lodge a prior notice about the rally. The court dismissed the ne bis in idem argument, relying on the difference of timing and type of actions (participation and organisation). Moreover, noting his conviction in 2017 for a similar offence, the court reclassified the case from paragraph 5 of Article 20.2 of the CAO to its paragraph 8. On 6 September 2018 the St Petersburg City Court upheld the judgment of 2 July 2018.
COMMON QUESTIONS tO THE PARTIES
1. Was there a violation of Article 4 § 1 of Protocol No. 7 to the Convention? In particular:
- Does the “repeated commission” (повторное совершение) in Article 20.2 § 8 of the CAO constitute – in Russian law – a proper element of corpus delicti or, rather, a circumstance qualifying an offence (квалифицирующий признак) or, instead, an aggravating circumstance (отягчающее обстоятельство) such as an act of recidivism (Article 4.3 (1) and (2) of the CAO) (compare Achour v. France [GC], no. 67335/01, § 46, ECHR 2006‑IV)? Does the unlawfulness of each applicant’s conduct/omission in relation to another public event or, a fortiori, the very same event (where that conduct or omission was already the subject-matter of a separate final conviction) constitute – in Russian law – an element of corpus delicti under Article 20.2 § 8 of the CAO?
- If yes, was each applicant tried and punished again for (with reference to) the facts that were substantially the same, overlapping at least in part with the facts relating to an earlier final conviction?
2. Were there violations of Articles 10 and 11 of the Convention?
ADDITIONAL CASE-SPECIFIC QUESTIONS
Application no. 8672/19:
3. As to the CAO case (judgments of 2 July and 6 September 2018), was there a violation of Article 6 § 1 of the Convention on account of the lack of a prosecuting party at the trial and appeal hearing? Was there a violation of Article 6 §§ 1 and 3 (d) of the Convention on account of the refusal to examine public officials?
4. Was it foreseeable that the applicant would be held liable under Article 20.2 of the CAO read together with the PEA for non-compliance with the prior notification requirement incumbent on public events’ organisers, following the courts’ choice to classify him as the gathering’s “organiser” because of his use of such tool as a “repost” from an Internet page (compare Magyar Jeti Zrt v. Hungary, no. 11257/16, §§ 69-84, 4 December 2018)? If not, was there a violation of Article 7 of the Convention?
[1] “8. A repeated commission of the offence prescribed under paragraphs 1 to 6.1 of this Article, if the impugned action does not constitute a criminal offence, are punishable by an administrative fine ... up to 300,000 Russian roubles or an administrative detention up to thirty days ...”
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