European Court of Human Rights

 

 

 

THIRD SECTION

CASE OF LAYTSAN v. RUSSIA

(Application no. 28882/14)

 

 

 

 

 

JUDGMENT

 

 

 

STRASBOURG

14 June 2022

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

In the case of Laytsan v. Russia,

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

          Darian Pavli, President,
          Andreas Zünd,
          Mikhail Lobov, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 28882/14) 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”) on 3 April 2014 by a Russian national, Mr Vyacheslav Petrovich Laytsan, born in 1967 and living in Yessentuki (“the applicant”), who was represented by Mr D. Gravin, a lawyer practising in Moscow;

the decision to give notice of the complaint concerning duplication of proceedings to the Russian Government (“the Government”), initially represented by Mr G. Matyushkin, former Representative of the Russian Federation to the European Court of Human Rights and later by his successor in this office, Mr M. Vinogradov, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 24 May 2022,

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

SUBJECT MATTER OF THE CASE

1.  The police compiled an offence report in respect of the applicant under Article 20.1 § 2 of the Code of Administrative Offences (CAO) punishing minor hooliganism, that is a breach of the public order consisting in manifest disrespect to the society together with the use of rude language in a public place or insulting others, where those actions were linked (сопряжены с) to disobedience to a lawful order from a public official on duty or when putting an end to a breach of public order. On 30 May 2012 a justice of the peace convicted the applicant and sentenced him to a fine of 1,000 Russian roubles (RUB). As to the facts of the case, the court only stated as follows:

“Pursuant to the offence report, at 10.10 pm. on 29 May 2012 [the applicant] ... loudly used rude language, thereby breaching the public order and committing an offence under Article 20.1 § 2 of the CAO; he did not react to the repeated orders from [the] police officers to cease his hooliganism and continued to use rude language.”

No appeal was lodged. The judgment became final on 9 June 2012.

2.  On 7 June 2012 the applicant was charged under Articles 318 and 319 of the Criminal Code (CC) punishing violence against a public official in relation to his or her official duties and a public insult of a public official in relation to or during the exercise of his or her official duties, respectively.

3.  On 13 August 2013 the Yessentuki Town Court of the Stavropol Region convicted the applicant as charged and sentenced him to a fine of RUB 60,000 and community work of 160 hours. The court considered, as regards the charge under Article 319 of the CC, as follows:

“Around 10 p.m. on 29 May 2012 [the applicant] ... used rude language, did not react to [the] officers’ orders to cease his unlawful actions thereby breaching the public order connected with disobedience to a lawful order from a public official and thereby committing an offence under Article 20.1 § 2 of the CAO. Having identified that offence, between 9 and 10 p.m. [officer Ya.] and [officer Z.] sought to put an end to defendant’s hooliganism and ordered him to cease using rude language ... In the presence of another person, P., the defendant started to use rude language against Ya., thereby diminishing his dignity and honour.”

As to the charge under Article 318 of the CC, the court stated as follows:

“Around 10 p.m. the defendant committed the offence under Article 20.1 § 2 of the CAO, which officers Ya. and S. tried to put an end to. The defendant used violence against Ya. by way of grabbing his uniform causing damage to the right epaulette, then giving one slap with a hand to the officer’s face, causing physical pain.”

4.  On 10 October 2013 the Stavropol Regional Court upheld the judgment. The applicant served the sentences.

5.  After the communication of the application to the Government, on 29 February 2016 the Presidium of the Regional Court examined a prosecutor’s request, quashed the conviction under Article 319 of the CC and upheld the one under Article 318 of the CC with the fine of RUB 60,000. The court considered that the rude language against the officer had been “connected” to the applicant’s conduct against the same officer at the same time and at the same place as well as in relation to the same officer’s exercise of his duty to put an end to a breach of the public order; thus, the classification of the applicant’s actions under Article 319 of the CC, in addition to Article 318, had been “excessive”.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7 to THE CONVENTION

A.    Admissibility

6.  The Government argued that the applicant had not appealed against his administrative conviction and had not raised the ne bis in idem argument during the criminal investigation or on appeal against the criminal conviction in 2013. The applicant submitted that the prosecution and the criminal courts had been aware of the administrative conviction, and the unlawful duplication of proceedings had been obvious.

7.  The Court considers that an appeal in 2012 against the administrative conviction was irrelevant for the present complaint, which only arose subsequently in relation to the subsequent criminal proceedings rather than that conviction. The Government have not specified what remedy had to be exhausted during the criminal investigation.

8.  The applicant did not contest that a point of appeal against a criminal conviction based on the ne bis in idem principle might be a remedy to be exhausted. However, the Government have not substantiated that at the time the raising of the complaint on appeal against the criminal conviction had a prospect of success where the final conviction giving rise to an alleged violation of ne bis in idem had been a conviction for an administrative offence (правонарушение) under the CAO (see, in the same vein, Sergey Zolotukhin v. Russia [GC], no. 14939/03, § 118, ECHR 2009). The Court has already found that the Russian courts did not have at their disposal legal provisions which would allow them to avoid a duplication of proceedings in a situation where the defendant was on criminal trial for an offence of which he or she had already been finally convicted or acquitted under the CAO (ibid.). The Government’s objection is dismissed.

9.  The complaint under Article 4 of Protocol No. 7 to the Convention is related to being liable to be “tried” or/and “punished” again. That punishment was imposed on 13 August 2013 and became enforceable when it was upheld on 10 October 2013 (see paragraph 4 above). The applicant was “liable ... to be punished” on the latter date. He has complied with the six-month rule under Article 35 § 1 of the Convention, by lodging the complaint before the Court on 3 April 2014.

10.  The Government have not argued that the applicant lost his victim status in the part relating to the proceedings under Article 319 of the CC. The quashing of the related conviction did not amount to acknowledging, at least in substance, the violation of the ne bis in idem principle vis-à-vis the CAO case. The applicant had already served the sentence (the “punishment”) and received no compensation for that alleged violation (see Sergey Zolotukhin, cited above, §§ 115-17).

11.  The complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

B.    Merits

12.  The relevant principles were formulated in Sergey Zolotukhin, cited above, §§ 79-84; A and B v. Norway [GC], nos. 24130/11 and 29758/11, §§ 105-34, 15 November 2016; see also Mihalache v. Romania [GC], no. 54012/10, §§ 47-49, 8 July 2019, and Bajćić v. Croatia, no. 67334/13, §§ 25-26, 8 October 2020.

1.     Whether the proceedings were “criminal” and whether the applicant was tried and punished under the Criminal Code for the “same offence” (idem)

13.  The offence under paragraph 2 of Article 20.1 of the CAO was punishable by detention. The proceedings were “criminal” in nature for the purpose of Article 4 of Protocol No. 7 to the Convention (see Sergey Zolotukhin, cited above, §§ 52-57; Khmel v. Russia, no. 20383/04, §§ 58-63, 12 December 2013; and Korneyeva v. Russia, no. 72051/17, § 53, 8 October 2019).

14.  A lawful conviction necessarily required that the use of rude language be linked to - that is, accompanied or followed by - disobedience to a lawful order from a public official on duty or when putting an end to a breach of public order. The administrative court described the charge, noting that the applicant had not reacted to the repeated orders from the police officers to cease his hooliganism and “[had] continued to use rude language” (see paragraph 1 above). This included the rude language used by the applicant against officer Ya. on 29 May 2012. The conviction under Article 319 of the CC concerned that aspect, too.

15.  The criminal conviction under Article 318 of the CC concerned the applicant’s physical assault against officer Ya. It is not the Court’s role to speculate whether the CAO conviction only concerned “disobedience” by way of merely continuing to behave unlawfully as he did before the police order - that is, the use of rude language - whereas the criminal conviction concerned a distinct action, namely his resistance by way of physically assaulting that officer.

16.  It was not disputed that already in May 2012 the authorities had been aware of the essential factual circumstances that could give rise to liability under the CAO or the Criminal Code. It was open to them to take an informed decision as to the course of action to be pursued for prosecuting the applicant, in compliance with the ne bis in idem principle as formulated in Sergey Zolotukhin. Given the requirements for prosecution under paragraph 2 of Article 20.1 of the CAO and lacking a precise description of the facts held against him, it is reasonable to assume that the administrative conviction encompassed the entire incident on 29 May 2012, that is the applicant’s conduct both before and during the intervention of the police. Thus, he was tried and punished under Articles 318 and 319 of the CC on account of the facts that were “substantially the same” (see Sergey Zolotukhin, cited above, §§ 79-84).

2.     Whether the applicant was liable to be tried or punished again (bis)

17.  The conviction under the CAO became “final” for the purpose of Article 4 § 1 of Protocol No. 7 on 9 June 2012 (see Mihalache, cited above, §§ 109 and 115). The applicant was then convicted and sentenced in the criminal case. Thus, he was tried and punished “again” after 9 June 2012.

18.  Article 4 § 1 of Protocol No. 7 does not preclude the conduct of dual proceedings, provided that certain conditions are fulfilled (see A and B v. Norway, cited above, §§ 130-32). It is incumbent on the Government to convincingly demonstrate that those conditions were fulfilled (ibid.). They have not argued that the administrative and criminal proceedings were “sufficiently closely connected in substance and in time” so as to form a coherent whole, nor that the other conditions mentioned above were complied with (compare Bajćić, cited above, §§ 39-46; and see as similar examples Bashin and Chekunov v. Russia [Committee], no. 44015/07, § 66, 14 January 2020; Gushchin and Gaskarov v. Russia [Committee], nos. 22581/15 and 28251/15, §§ 87-89, 25 February 2020; Duplenko v. Russia [Committee], no. 71475/11, § 21, 11 January 2022; and Uspenskiy v. Russia [Committee], no. 50734/12, § 18, 8 March 2022). The criminal courts’ decisions, including in 2016, did not delve into those factors either.

3.     Conclusion

19.  There has been a violation of Article 4 of Protocol No. 7 to the Convention on account of the applicant’s trial and punishment under the Criminal Code.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

20.  The applicant claimed 50,000 euros (EUR) in respect of non‑pecuniary damage, the amount of fine he had paid in the criminal proceedings and 100,000 Russian roubles for the lawyer’s fees before the Court. He also submitted claims relating to the CAO case.

21.  The Government made no specific comment.

22.  Taking into account the nature and scope of the violation found, the Court awards the applicant EUR 780 in respect of pecuniary damage, EUR 3,000 in respect of non-pecuniary damage and EUR 1,000 in costs and expenses, plus any tax that may be chargeable to the applicant.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the complaint under Article 4 of Protocol No. 7 to the Convention admissible;

2.      Holds that there has been a violation of Article 4 of Protocol No. 7;

 

3.      Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 780 (seven hundred eighty euros euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(ii) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(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;

4.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 14 June 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

                       

          Olga Chernishova                                                   Darian Pavli
          Deputy Registrar                                                      President