Article 50 - Right not to be tried or punished twice in criminal proceedings for the same criminal offence
Key facts of the case:
1) 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.
3) The applicant complained under Article 4 of Protocol No. 7 that he had been prosecuted twice in connection with the same offence.
A. The events of 4 January 2002
12) The events, as described by the parties and related in the relevant documents, unfolded on that day in the following manner.
13) On the morning of 4 January 2002 the applicant was taken to police station no. 9 of the Department of the Interior in the Leninskiy district of Voronezh (“the police station”) for the purpose of establishing how he had managed to take his girlfriend Ms P. into a restricted military compound.
14) At the police station the applicant was firstly taken to the office of the passport service. He was drunk and verbally abusive towards the passport desk employee Ms Y. and the head of the road traffic department Captain S. The applicant ignored the reprimands and warnings issued to him. After pushing Captain S. and attempting to leave, he was handcuffed. The police officers considered that the applicant’s conduct amounted to the administrative offence of minor disorderly acts.
15) The applicant was taken to the office of Major K., the head of the police station. Major K. drafted a report on the applicant’s disorderly conduct which read as follows:
“This report has been drawn up by Major K., head of police station no. 9, Voronezh‑45, to record the fact that on 4 January 2002 at 9.45 a.m. Mr Zolotukhin, who had been brought to police station no. 9 with Ms P., whom he had taken into the closed military compound unlawfully, uttered obscenities at police officers and the head of [unreadable], did not respond to reprimands, ignored requests by police officers to end the breach of public order, attempted to escape from police premises and was handcuffed, that is to say, he committed the administrative offences set out in Articles 158 and 165 of the RSFSR Code of Administrative Offences.”
16) Captain S. and Lieutenant-Colonel N. were also present in the office while Major K. was drafting the report. The applicant became verbally abusive towards Major K. and threatened him with physical violence. He again attempted to leave and kicked over a chair.
17) After the report was completed the applicant was placed in a car to be taken to the Gribanovskiy district police station (ROVD). The driver Mr L., Major K., Lieutenant-Colonel N. and Ms P. rode in the same car. On the way, the applicant continued to swear at Major K. and threatened to kill him for bringing administrative proceedings against him.
B. Administrative conviction of the applicant
18) On 4 January 2002 the Gribanovskiy District Court found the applicant guilty of an offence under Article 158 of the Code of Administrative Offences of the Russian Soviet Federative Republic (RSFSR), on the following grounds:
“Zolotukhin swore in a public place and did not respond to reprimands.”
19) The applicant was sentenced to three days’ administrative detention. The judgment indicated that the sentence was not amenable to appeal and was immediately effective.
C. Criminal prosecution of the applicant
20) On 23 January 2002 a criminal case was opened against the applicant on suspicion of his having committed “disorderly acts, including resisting a public official dealing with a breach of public order” – an offence under Article 213 § 2 (b) of the Criminal Code of the Russian Federation – on 4 January 2002 at the police station. On the following day, the applicant was taken into custody. On 1 February 2002 two further sets of proceedings were instituted against the applicant on other charges.
21) On 5 April 2002 the applicant was formally indicted. The relevant parts of the charge sheet read as follows:
“(...) Hence, through his intentional actions Mr Zolotukhin engaged in disorderly acts, that is to say, a flagrant breach of public order expressing clear disrespect towards the community, combined with a threat to use violence, and resisting a public official dealing with a breach of public order; the above amounts to the offence set out in Article 213 § 2 (b) of the Criminal Code. (...) Hence, Mr Zolotukhin intentionally and publicly insulted a public official in the course of his official duties, that is to say, he committed the offence set out in Article 319 of the Criminal Code. (...) Hence, by his intentional actions, Mr Zolotukhin threatened to use violence against a public official in connection with the latter’s performance of his official duties, that is to say, he committed the crime set out in Article 318 § 1 of the Criminal Code."
22) On 2 December 2002 the Gribanovskiy District Court delivered its judgment. As regards the offence under Article 213 § 2 of the Criminal Code, the District Court acquitted the applicant 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 Captain S., threatening to kill the latter. He refused to comply with a lawful request by Captain S., ... behaved aggressively, pushed [Captain] S. 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 (b) in the defendant’s actions and acquits him of this charge.”
23) 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 offences under Articles 158 and 165 of the RSFSR Code of Administrative Offences 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 Major K.’s office.
24) Finally, the District Court found 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 real because the applicant had a history of abusive and violent behaviour.
25) On 15 April 2003 the Voronezh Regional Court, in summary fashion, upheld the judgment on appeal.
Outcome of the case:
For these reasons, the Court unanimously
1. Dismisses the Government’s preliminary objection;
2. Holds that there has been a violation of Article 4 of Protocol No. 7;
(a) that the respondent State is to pay the applicant, within three months, 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), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 9,000 (nine thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid into the representatives’ bank account in the United Kingdom;
(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.
79. An analysis of the international instruments incorporating the non bis in idem principle in one or another form reveals the variety of terms in which it is couched. Thus, Article 4 of Protocol No. 7 to the Convention, Article 14 § 7 of the United Nations Covenant on Civil and Political Rights and Article 50 of the Charter of Fundamental Rights of the European Union refer to the “[same] offence” (“[même] infraction”), the American Convention on Human Rights speaks of the “same cause” (“mêmes faits”), the Convention Implementing the Schengen Agreement prohibits prosecution for the “same acts” (“mêmes faits”), and the Statute of the International Criminal Court employs the term “[same] conduct” (“[mêmes] actes constitutifs”) . The difference between the terms “same acts” or “same cause” (“mêmes faits”) on the one hand and the term “[same] offence” (“[même] infraction”) on the other was held by the Court of Justice of the European Union and the Inter-American Court of Human Rights to be an important element in favour of adopting the approach based strictly on the identity of the material acts and rejecting the legal classification of such acts as irrelevant. In so finding, both tribunals emphasised that such an approach would favour the perpetrator, who would know that, once he had been found guilty and served his sentence or had been acquitted, he need not fear further prosecution for the same act (see paragraphs 37 and 40 above).