CASE OF KARELIN v. RUSSIA
Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Impartial tribunal);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Johannes Silvis;Luis López Guerra
5. The applicant was born in 1970 and lives in Naberezhnyye Chelny. 6. On 4 March 2012 the applicant was arrested by a police officer, Z., and accused of disorderly behaviour in a public place, an offence under Article 20.1 of the Federal Code of Administrative Offences (“the CAO”), punishable by a fine or up to fifteen days’ detention. It appears that the applicant was then taken to the police station and remained there for some time. 7. In the police station, Z. compiled an administrative offence record, thereby instituting administrative offence proceedings against the applicant. The record read as follows: “4 March 2012 I have made the following findings under Article 28.3 of the Code of Administrative Offences: [The applicant] was drunk and used foul language against passers-by, waving his arms in the air; he was trying to start a fight, and did not rectify his behaviour despite remarks from passers-by. Thus, he gravely offended public order and committed an administrative offence under Article 20.1 of the CAO. The fact of the offence has been confirmed by: witness K. [The applicant] has been informed of his rights and obligations under Articles 48 and 51 of the Constitution, and Articles 1.5, 24.2 and 25.1 of the CAO: that the person who is being prosecuted for an administrative offence has the right, inter alia, to have access to all the material in the file, to testify, to adduce evidence, to lodge interlocutory applications and challenges, and to have legal assistance. ... Decision: to submit to a court Signature: deputy chief officer, 5 March 2012” 8. Officer Z. also issued a written report stating that the applicant had used foul language against passers-by. 9. It appears that one of the passers-by, N., accepted a request to make a written statement attesting to the fact that the applicant had been drunk and had used foul language. 10. On 5 March 2012 the police officer submitted the record to his superior, who decided that the case should be transferred to a court for examination. 11. On an unspecified date, the administrative offence file was submitted to a justice of the peace for adjudication. It appears that the file contained the offence record, Z.’s report and N.’s statement. It is unclear whether there was any written statement from K. at that time. 12. On 29 March 2012 the justice of the peace held a hearing. It is unclear whether it was a public one. 13. The applicant made a written statement that he had been apprised of his procedural rights. 14. As can be seen from the judgment in this case (see below), the applicant was accused at the trial of using foul language in the presence of other people, while being drunk, thus breaching public order. 15. The applicant, who is himself a lawyer, did not appoint a legal representative. He pleaded not guilty and made oral submissions on the charge against him. 16. After a request, Officer Z. was present at the hearing and made an oral statement. The court also heard N. and K.. It appears that the justice of the peace asked Z. and N. a couple of questions. 17. By judgment of 29 March 2012 the justice of the peace found the applicant guilty and imposed a fine of 500 Russian roubles (the equivalent of 13 euros at the time) on him. The judgment read as follows: “The court holds that, while drunk, the defendant used foul language in the presence of other people and thus breached public order ... The defendant’s guilt is confirmed by Z.’s report and N.’s testimony ... The use of foul language in a public place is unacceptable and discloses a form of disorderly behaviour ... In the court’s view, the use of aberrant language in a public place in the presence of at least one person constitutes an offence under Article 20.1 of the CAO. Moreover, the defendant continued to use foul language during his arrest and while being taken to the police station ...” 18. The applicant appealed to the Naberezhniye Chelny Town Court. He argued, inter alia, that although the offence record referred to his using foul language “against passers-by”, the justice of the peace had phrased the charge as using foul language “in the presence of other people”; the judge had not retained the phrase from the offence record, which stated that the applicant “[had not rectified] his behaviour despite remarks from passersby”. 19. On 16 April 2012 the Town Court held a hearing. It is unclear whether it was a public hearing. The appeal court examined the applicant and upheld the judgment of 29 March 2012. On that date, the appeal decision and the trial judgment became final. The appeal court held as follows: “The justice of the peace convicted [the applicant] of using foul language in the presence of others, thus breaching public order ... The appeal court dismisses the argument that the mere use of aberrant language in respect of one person does not disclose an offence. The offence of disorderly conduct is constituted by actions breaching public order and peace. Such actions include using foul language in a public place, insulting people, destruction of or damage to others’ property ... Each of these actions may amount to disorderly behaviour if it breaches public order and discloses a manifest disregard to society ... Certain factual contradictions between the information in the administrative offence record, Z.’s report and N.’s testimony (as regards use of foul language on account of low culture rather than in respect of passers-by) were dispelled during the trial following the interview of the witnesses ...” 20. The applicant applied to the Deputy President of the Supreme Court of the Tatarstan Republic for judicial review under Article 30.12 of the CAO. Having examined the file, by decision of 15 June 2012 the Deputy President upheld the court decisions of 29 March and 16 April 2012. 21. The applicant did not seek further review before the Supreme Court of Russia.