CASE OF SERGEY ZOLOTUKHIN v. RUSSIA
Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of P7-4;Non-pecuniary damage - award
Anatoly Kovler;Christos Rozakis;Corneliu Bîrsan;Dean Spielmann;Egbert Myjer;Elisabeth Steiner;Françoise Tulkens;Giorgio Malinverni;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Khanlar Hajiyev;Ledi Bianku;Loukis Loucaides;Luis López Guerra;Mirjana Lazarova Trajkovska;Nicolas Bratza;Päivi Hirvelä;Peer Lorenzen;Snejana Botoucharova;Stanislav Pavlovschi;Sverre Erik Jebens
11. The applicant was born in 1966 and lives in Voronezh. 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, Voronezh45, 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. 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. 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: “On the morning of 4 January 2002 Mr Zolotukhin was taken to police station no. 9 in the Leninskiy district of Voronezh, for elucidation of the circumstances in which his acquaintance Ms P. had entered the territory of the closed military compound Voronezh-45. In the passport office at police station no. 9 Mr Zolotukhin, who was inebriated, flagrantly breached public order, expressing a clear lack of respect for the community, and began loudly uttering obscenities at those present in the passport office, namely Ms Y., a passport official in the housing department of military unit 25852, and Captain S., head of the road traffic department in police station no. 9; in particular, he threatened the latter, in his capacity as a police officer performing official duties, with physical reprisals. Mr Zolotukhin did not respond to Captain S.’s lawful requests to end the breach of public order; he attempted to leave the premises of the passport office, actively resisted attempts to prevent his disorderly conduct, provided resistance to Captain S., pushing him and pulling out of his reach, and prevented the passport office from operating normally. 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. As a result of his disorderly behaviour, Mr Zolotukhin was taken to the office of Major K., head of police station no. 9, Leninskiy district, Voronezh, who was present in his official capacity, so that an administrative offence report could be drawn up. [Major] K., in performance of his official duties, began drafting an administrative offence report concerning Mr Zolotukhin, under Articles 158 and 165 of the RSFSR Code of Administrative Offences. Mr Zolotukhin, seeing that an administrative offence report was being drawn up concerning him, began publicly to insult [Major] K., uttering obscenities at him in his capacity as a police officer, in the presence of Lieutenant-Colonel N., assistant commander of military unit 14254, and Captain S., head of the road traffic department in police station no. 9, thus intentionally attacking the honour and dignity of a police officer. Mr Zolotukhin deliberately ignored Major K.’s repeated requests to end the breach of public order and insulting behaviour. Mr Zolotukhin then attempted to leave the office of the head of the police station without permission and kicked over a chair, while continuing to direct obscenities at Major K. and to threaten him with physical reprisals. 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. After the administrative offence report had been drawn up in respect of Mr Zolotukhin, he and Ms P. were placed in a vehicle to be taken to the Gribanovskiy district police station in the Voronezh region. In the car, in the presence of Ms P., LieutenantColonel N., assistant commander of military unit 14254, and the driver [Mr] L., Mr Zolotukhin continued intentionally to attack the honour and dignity of Major K., who was performing his official duties, uttering obscenities at him in his capacity as a police officer and thus publicly insulting him; he then publicly threatened to kill Major K., the head of police station no. 9, for bringing administrative proceedings against him. 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., LieutenantColonel 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. 26. The Russian Constitution provides that “no one may be convicted twice for the same offence” (Article 50 § 1). 27. The Code of Criminal Procedure establishes that criminal proceedings should be discontinued if there exists a final judgment against the suspect or defendant concerning the same charges or a decision by a court, investigator or examiner to discontinue the criminal case concerning the same charges or not to institute criminal proceedings (Article 27 §§ 4 and 5). 28. Article 158 of the RSFSR Code of Administrative Offences (in force at the material time) read as follows: “Minor disorderly acts, that is, utterance of obscenities in public places, offensive behaviour towards others and other similar acts that breach 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 per cent of the offender’s wages, or – if, inoffender’s character, these measures are not deemed to be adequate – by up to fifteen days’ administrative detention.” 29. The Criminal Code of the Russian Federation (version in force at the material time), in so far as relevant, read as follows: “1. Disorderly acts, that is, serious breaches of public order or flagrant displays of disrespect towards the community, combined with the use of violence towards individuals or the threat to use violence or 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) while resisting a public official or another person fulfilling his or her duty to maintain public order or dealing with a breach of public order ... – 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.” “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 shall be punishable by a fine of between 200 and 500 months’ minimum wages ... or by three to six months’ detention or up to five years’ deprivation of liberty ...” “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.” 30. In Resolution no. 4 of 27 June 1978 (with subsequent amendments), the Plenary Supreme Court ruled that in cases where an administrative charge of minor disorderly acts had been brought against a defendant, but his or her actions were socially dangerous enough to be considered a crime, criminal proceedings should be brought against him or her under Article 206 of the RSFSR Criminal Code (replaced by Article 213 of the Russian Criminal Code after 1 January 1997) (§ 5). In Resolution no. 5 of 24 December 1991 (with subsequent amendments), the Plenary Supreme Court held that the lower courts should not interpret the criminal prohibition of disorderly acts extensively, in order to exclude the criminal conviction of defendants charged only with the administrative offence of minor disorderly acts (§ 20). 31. Article 14 § 7 of the United Nations Covenant on Civil and Political Rights provides as follows: “No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.” 32. Article 20 of the Statute of the International Criminal Court provides as follows: “1. Except as provided in this Statute, no person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court. 2. No person shall be tried by another court for a crime referred to in Article 5 for which that person has already been convicted or acquitted by the Court. 3. No person who has been tried by another court for conduct also proscribed under Article 6, 7 or 8 shall be tried by the Court with respect to the same conduct unless the proceedings in the other court: (a) were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or (b) otherwise were not conducted independently or impartially in accordance with the norms of due process recognised by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.” 33. Article 50 of the Charter of Fundamental Rights of the European Union, which was solemnly proclaimed by the European Parliament, the Council and the Commission in Strasbourg on 12 December 2007 (OJ 14.12.2007, C 303/1), reads as follows: “No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.” 34. Article 54 of the Convention Implementing the Schengen Agreement of 14 June 1985 (“the CISA”) provides as follows: “A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party.” 35. The Court of Justice of the European Union (“the CJEU”) has recognised the non bis in idem principle as a fundamental principle of Community law (Limburgse Vinyl Maatschappij NV (LVM) and Others v. Commission of the European Communities, Joined Cases C-238/99 P, C244/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P and C254/99 P, § 59, 15 October 2002): “... the principle of non bis in idem, which is a fundamental principle of Community law also enshrined in Article 4 § 1 of Protocol No. 7 to the ECHR [the Convention], precludes, in competition matters, an undertaking from being found guilty or proceedings from being brought against it a second time on the grounds of anti-competitive conduct in respect of which it has been penalised or declared not liable by a previous unappealable decision.” 36. In the area of competition law the CJEU applied the following approach to testing compliance with the non bis in idem principle (Aalborg Portland A/S and Others v. Commission of the European Communities, Joined Cases C-204/00 P, C-205/00 P, C-211/00 P, C213/00 P, C-217/00 P and C-219/00 P, § 338, 7 January 2004): “As regards observance of the principle ne bis in idem, the application of that principle is subject to the threefold condition of identity of the facts, unity of offender and unity of the legal interest protected. Under that principle, therefore, the same person cannot be sanctioned more than once for a single unlawful course of conduct designed to protect the same legal asset.” 37. The CJEU’s case-law on police and judicial cooperation in criminal matters is based on a different interpretation of “idem” (Leopold Henri Van Esbroeck, Case C-436/04, 9 March 2006): “27. In the first place, however, the wording of Article 54 of the CISA, ‘the same acts’, shows that that provision refers only to the nature of the acts in dispute and not to their legal classification. 28. It must also be noted that the terms used in that Article differ from those used in other international treaties which enshrine the ne bis in idem principle. Unlike Article 54 of the CISA, Article 14 § 7 of the International Covenant on Civil and Political Rights and Article 4 of Protocol No. 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms use the term ‘offence’, which implies that the criterion of the legal classification of the acts is relevant as a prerequisite for the applicability of the ne bis in idem principle which is enshrined in those treaties. ... 30. There is a necessary implication in the ne bis in idem principle, enshrined in that Article, that the Contracting States have mutual trust in their criminal justice systems and that each of them recognises the criminal law in force in the other Contracting States even when the outcome would be different if its own national law were applied ([Case C-385/01] Gözütok and Brügge [[2003] ECR I-1345], paragraph 33). 31. It follows that the possibility of divergent legal classifications of the same acts in two different Contracting States is no obstacle to the application of Article 54 of the CISA. 32. For the same reasons, the criterion of the identity of the protected legal interest cannot be applicable since that criterion is likely to vary from one Contracting State to another. 33. The above findings are further reinforced by the objective of Article 54 of the CISA, which is to ensure that no one is prosecuted for the same acts in several Contracting States on account of his having exercised his right to freedom of movement (Gözütok and Brügge, paragraph 38, and Case C-469/03 Miraglia [2005] ECR I-2009, paragraph 32). 34. As pointed out by the Advocate General in point 45 of his Opinion, that right to freedom of movement is effectively guaranteed only if the perpetrator of an act knows that, once he has been found guilty and served his sentence, or, where applicable, been acquitted by a final judgment in a member State, he may travel within the Schengen territory without fear of prosecution in another member State on the basis that the legal system of that member State treats the act concerned as a separate offence. 35. Because there is no harmonisation of national criminal laws, a criterion based on the legal classification of the acts or on the protected legal interest might create as many barriers to freedom of movement within the Schengen territory as there are penal systems in the Contracting States. 36. In those circumstances, the only relevant criterion for the application of Article 54 of the CISA is identity of the material acts, understood in the sense of the existence of a set of concrete circumstances which are inextricably linked together. ... 38. ... the definitive assessment in that regard belongs ... to the competent national courts which are charged with the task of determining whether the material acts at issue constitute a set of facts which are inextricably linked together in time, in space and by their subject matter.” 38. The CJEU confirmed and developed this approach in the most recent case concerning the application of the non bis in idem principle (Norma Kraaijenbrink, Case C-367/05, 18 July 2007): “26. ... it should be noted that the Court has already held that the only relevant criterion for the application of Article 54 of the CISA is identity of the material acts, understood as the existence of a set of concrete circumstances which are inextricably linked together (see Van Esbroeck, paragraph 36; Case C-467/04 Gasparini and Others [2006] ECR I-9199, paragraph 54; and Case C-150/05 Van Straaten [2006] ECR I-9327, paragraph 48). 27. In order to assess whether such a set of concrete circumstances exists, the competent national courts must determine whether the material acts in the two proceedings constitute a set of facts which are inextricably linked together in time, in space and by their subject matter (see, to that effect, Van Esbroeck, paragraph 38; Gasparini and Others, paragraph 56; and Van Straaten, paragraph 52). 28. It follows that the starting-point for assessing the notion of ‘same acts’ within the meaning of Article 54 of the CISA is to consider the specific unlawful conduct which gave rise to the criminal proceedings before the courts of the two Contracting States as a whole. Thus, Article 54 of the CISA can become applicable only where the court dealing with the second criminal prosecution finds that the material acts, by being linked in time, in space and by their subject matter, make up an inseparable whole. 29. On the other hand, if the material acts do not make up such an inseparable whole, the mere fact that the court before which the second prosecution is brought finds that the alleged perpetrator of those acts acted with the same criminal intention does not suffice to indicate that there is a set of concrete circumstances which are inextricably linked together covered by the notion of ‘same acts’ within the meaning of Article 54 of the CISA. 30. As the Commission of the European Communities in particular pointed out, a subjective link between acts which gave rise to criminal proceedings in two different Contracting States does not necessarily mean that there is an objective link between the material acts in question which, consequently, could be distinguished in time and space and by their nature. ... 32. ... it is for the competent national courts to assess whether the degree of identity and connection between all the factual circumstances that gave rise to those criminal proceedings against the same person in the two Contracting States is such that it is possible to find that they are ‘the same acts’ within the meaning of Article 54 of the CISA. ... 36. In the light of the foregoing, the answer to the first question must therefore be that Article 54 of the CISA is to be interpreted as meaning that: – the relevant criterion for the purposes of the application of that Article is identity of the material acts, understood as the existence of a set of facts which are inextricably linked together, irrespective of the legal classification given to them or the legal interest protected; – different acts consisting, in particular, first, in holding in one Contracting State the proceeds of drug trafficking and, second, in the exchanging at exchange bureaux in another Contracting State of sums of money also originating from such trafficking should not be regarded as ‘the same acts’ within the meaning of Article 54 of the CISA merely because the competent national court finds that those acts are linked together by the same criminal intention; – it is for that national court to assess whether the degree of identity and connection between all the facts to be compared is such that it is possible, in the light of the said relevant criterion, to find that they are ‘the same acts’ within the meaning of Article 54 of the CISA.” 39. Article 8 § 4 of the American Convention on Human Rights reads as follows: “An accused person acquitted by a non-appealable judgment shall not be subjected to a new trial for the same cause.” 40. The Inter-American Court of Human Rights gave the following interpretation of that provision (Loayza-Tamayo v. Peru, 17 September 1997, Series C No. 33, § 66): “This principle is intended to protect the rights of individuals who have been tried for specific facts from being subjected to a new trial for the same cause. Unlike the formula used by other international human rights protection instruments (for example, the United Nations International Covenant on Civil and Political Rights, Article 14 § 7), which refers to the same ‘crime’), the American Convention uses the expression ‘the same cause’, which is a much broader term in the victim’s favour.” 41. In the United States the double-jeopardy rule arises out of the Fifth Amendment to the Constitution, the relevant clause of which reads: “... nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb ...” 42. In the case of Blockburger v. United States, 284 U.S. 299 (1932), in which the defendant had sold drugs not in the original package and without a written order of the purchaser, and where the sale had been characterised as two statutory offences, the Supreme Court adopted the following interpretation: “Section 1 of the Narcotic Act creates the offense of selling any of the forbidden drugs except in or from the original stamped package; and section 2 creates the offense of selling any of such drugs not in pursuance of a written order of the person to whom the drug is sold. Thus, upon the face of the statute, two distinct offenses are created. Here there was but one sale, and the question is whether, both sections being violated by the same act, the accused committed two offenses or only one. ... Each of the offenses created requires proof of a different element. The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not ... [T]his court quoted from and adopted the language of the Supreme Court of Massachusetts in Morey v. Commonwealth, 108 Mass. 433: ‘A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other’.” 43. In the case of Grady v. Corbin, 495 U.S. 508 (1990), which concerned “vehicular homicide” by the defendant Mr Corbin, the Supreme Court developed a different approach: “... [A] technical comparison of the elements of the two offenses as required by Blockburger does not protect defendants sufficiently from the burdens of multiple trials. This case similarly demonstrates the limitations of the Blockburger analysis. If Blockburger constituted the entire double-jeopardy inquiry in the context of successive prosecutions, the State could try Corbin in four consecutive trials: for failure to keep right of the median, for driving while intoxicated, for assault, and for homicide. The State could improve its presentation of proof with each trial, assessing which witnesses gave the most persuasive testimony, which documents had the greatest impact, which opening and closing arguments most persuaded the jurors. Corbin would be forced either to contest each of these trials or to plead guilty to avoid the harassment and expense. Thus, a subsequent prosecution must do more than merely survive the Blockburger test. As we suggested in Vitale, the double-jeopardy clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted. ... The critical inquiry is what conduct the State will prove, not the evidence the State will use to prove that conduct ... [A] State cannot avoid the dictates of the double-jeopardy clause merely by altering in successive prosecutions the evidence offered to prove the same conduct ...” 44. Nevertheless, in the case of United States v. Dixon, 509 U.S. 688 (1993), the Supreme Court returned to the Blockburger test: “The double-jeopardy clause’s protection attaches in non-summary criminal contempt prosecutions just as it does in other criminal prosecutions. In the contexts of both multiple punishments and successive prosecution, the double-jeopardy bar applies if the two offenses for which the defendant is punished or tried cannot survive the ‘same elements’ or ‘Blockburger’ test. ... That test inquires whether each offense contains an element not contained in the other; if not, they are the ‘same offense’ within the clause’s meaning, and double jeopardy bars subsequent punishment or prosecution. ... Although prosecution [in the present case] would undoubtedly be barred by the Grady ‘same-conduct’ test, Grady must be overruled because it contradicted an unbroken line of decisions ... and has produced confusion. ... Moreover, the Grady rule has already proved unstable in application, see United States v. Felix, 503 U.S. ... Although the Court does not lightly reconsider precedent, it has never felt constrained to follow prior decisions that are unworkable or badly reasoned.”