Communicated on 16 June 2020 Published on 6 July 2020

THIRD SECTION

Application no. 36921/19 Vladimir Valeryevich KHARTOV against Russia lodged on 8 July 2019

STATEMENT OF FACTS

1 . The applicant, Mr Vladimir Valeryevich Khartov , is a Russian national, who was born in 1981 and lives in Roslavl , Smolensk Region.

2 . In 2013 the applicant was charged with four counts of illicit sale of drugs. In the course of the preliminary investigation the applicant underwent an in-patient forensic psychiatric assessment. On 3 September 2013 the panel of psychiatrists issued a report, which concluded that the applicant suffered from a temporary mental disorder (reactive depressive-paranoid psychosis) and required involuntary psychiatric treatment. The report stated that due to the applicant ’ s mental state at the time of assessment it was impossible to establish whether the above sale of drugs had been committed by the applicant in a state of insanity. It was recommended to conduct further assessment after recovery.

3 . In December 2013 the investigation was completed and the case transferred to the Promyshlennyy District Court of Smolensk. The District Court held hearings on the case and examined the available evidence, including witness statements, documentary evidence, police records and forensic examination reports.

4 . On 8 October 2014 the District Court adopted a decision ( постановление ), which established all factual and objective elements of relevant events and concluded that the impugned acts were committed by the applicant. At the same time the decision stated with reference to the above psychiatric assessment report that it had not been possible to establish whether the applicant had acted in a state of insanity. Accordingly, the District Court ordered the applicant ’ s involuntary treatment in a psychiatric facility and further forensic psychiatric assessment after recovery.

5 . On 28 April 2015 the involuntary treatment was terminated and on 4 June 2015 the criminal case was transferred to the investigation authorities for further inquiry.

6 . On 11 December 2015 the applicant was indicted with illicit sale of drugs and his criminal case was transferred to court for trial.

7 . During the hearing of 23 March 2017 the applicant requested the court to dismiss his case, because the proceedings violated his right not to be tried twice for the same offence. In the applicant ’ s opinion he had already been convicted by the final decision of 8 October 2014 and in his opinion the involuntary treatment had constituted the sentence for the alleged offence. The prosecutor disagreed and characterised the decision of 8 October 2014 as an intermediary decision suspending the proceedings due to the applicant ’ s temporary mental disorder.

8 . The District Court dismissed the applicant ’ s request, since these claims could be addressed only by a final judgment, and continued the examination of the available evidence.

9 . On 7 February 2019 the District Court adopted a judgment ( приговор ), which convicted the applicant of two counts of illicit sale of drugs and sentenced him to twelve years and six months ’ imprisonment. The applicant appealed.

10 . On the same date the District Court adopted a decision ( постановление ), which terminated the criminal proceedings on the remaining two counts, because the prosecution had refused to pursue the charges in this regard.

11 . On 11 June 2019 the Smolensk Regional Court annulled the lower court ’ s judgment due to violation of the applicant ’ s defense rights and ordered reconsideration.

12 . The Court has not been informed about the further steps in the proceedings.

COMPLAINT

13 . The applicant complains under Article 4 § 1 of Protocol No. 7 that he has been tried twice for the same offence.

QUESTIONS TO THE PARTIES

1. Did the applicant exhaust the available and effective domestic remedies in respect of his complaint under Article 4 of Protocol No. 7?

2. Does Article 4 of Protocol No. 7 apply to the proceedings leading to the decisions of 8 October 2014 and 7 February 2019? In particular:

(a) Should the proceedings leading to the adoption of the decision of 8 October 2014 be considered as trial for an offence within the meaning of Article 4 § 1 of Protocol No. 7? Should the applicant ’ s involuntary treatment in a psychiatric facility ordered by the above decision be considered as punishment for an offence (compare Antoine v. the United Kingdom ( d ec. ), no. 62960/00, 13 May 2003; Vasenin v. Russia no. 48023/06, § 130, 21 June 2016 ; and Hodžić v. Croatia , no. 28932/14, §§ 36-54, 4 April 2019)?

(b) Should the decision ( постановление ) of 8 October 2014 by the Promyshlennyy District Court of Smolensk be considered as a final acquittal or conviction in accordance with the law and penal procedure in Russia?

3. If the answer to question 1 is positive, h as the applicant been tried and/or punished twice for the same offence in the territory of the respondent State, as prohibited by Article 4 § 1 of Protocol No. 7?

In this respect what was the relationship between the proceedings leading to the adoption of the decision of 8 October 2014 and the proceedings leading to the adoption of the judgment and the decision on 7 February 2019?

The parties are invited to provide specific references to the applicable provisions of the national law and examples from the national courts ’ practice.

4. If the answer to question 2 is positive , did the proceedings fall within the exceptions envisaged by Article 4 § 2 of Protocol No. 7?