Communicated on 3 September 2015

FIRST SECTION

Application no 44015/07 Mikhail Aleksandrovich BASHIN and Sergey Viktorovich CHEKUNOV against Russia and 2 other applications

STATEMENT OF FACTS

The applicants are Russian nationals.

A. The circumstances of the cases

The facts of the cases, as submitted by the applicants, may be summarised as follows.

On 22 November 2006 the first applicant was accused of the administrative offence under Article 19.3 (resistance to a lawful order from a public official or impediment to his work) of the Federal Code of Administrative Offences (CAO). The second applicant was accused under Article 20.17 of the CAO (violation of the entry regime to a secured facility).

The relevant facts held against Mr Bashin were presented by the police in the administrative offence record as follows:

“Being present in the building of St Petersburg Legislative Council, Mr Bashin showed clear resistance to the lawful order by a police officer, in the following manner. Entering the building without a valid entry document, he disregarded the lawful requirement to show such document and pushed the officer away from the door. He was then running around in the meeting room, shouting various slogans and throwing leaflets. When asked to leave the room, he refused. Physical force had to be used against him.”

The administrative offence record in similar terms was drafted in respect of the second applicant.

By judgments of 27 November 2006 a peace justice convicted the applicants under Article 19.3 of the CAO and sentenced them to ten-day detention. Allegedly, the description of the factual circumstances held against the applicants resembled the description made in the administrative offence record.

It appears that the above judgments became final ten days later, in the absence of any appeal.

In the meantime, on 24 November 2006 the authorities opened a criminal investigation against the applicants, suspecting them of the offences falling within the scope of Article 318 (violence against a public officer) and Article 319 (insult against a public officer) of the Criminal Code. The bill of prosecution ( постановление о возбуждении уголовного дела ) reads as follows:

“[The applicants] and some others acted as a group and, having intent to insult public officials and using violence, pushed two officers ... In the presence of other people [the applicants] were running around in the meeting room and were distributing leaflets ...”

It is unclear whether the applicants could and did seek judicial review of the bill of prosecution.

It is unclear when the investigating or prosecuting authority learnt or was made aware of the existence of the final administrative convictions in respect of the applicants.

On 27 November and 12 December 2006 the first and second applicants were formally given the “accused” status in the criminal case. Apparently, the factual elements of the case remained the same as specified in the bill of prosecution. It is unclear whether the applicants could and did seek judicial review of the decisions attributing the accused status. Arguably, the bill of indictment in respect of the applicants was based on the same description of the factual circumstances.

Having served the term of ten-day detention, the applicants were not released because on 7 December 2006 the Oktyabrskiy District Court of St Petersburg had authorised their detention for the purposes of the criminal case. The applicants did not appeal.

On 2 February 2007 the District Court examined the authorities ’ request for extension and granted it by keeping the applicants in detention until 27 February 2007. It appears that the applicants mentioned that they had been convicted of the administrative offence in relation to the same events. The court did not address this matter. The applicants appealed. On 16 March 2007 the appeal court considered that the order of 2 February 2007 was unlawful on procedural grounds and ordered a re-examination by the District Court. Eventually, on 19 April 2007 the District Court dismissed the above request for detention in respect of the first applicant; the same decision was reached on 14 May 2007 in respect of the second applicant.

In the meantime (that is before their appeal against the order of 2 February 2007 could be examined), on 22 February 2007 the District Court issued a new extension until 24 March 2007. The applicants appealed.

On 23 March 2007 the District Court refused to issue further extensions and ordered the applicants ’ release. Thereafter, they remained under an undertaking not to leave the area of residence ( подписка о невыезде ) until 28 November 2007.

It is unclear whether the applicants raised the non bis in idem arguments at the pre-trial stage of the criminal proceedings, including in the ancillary detention proceedings.

On an unspecified date, the criminal case was submitted for trial before the District Court. The court held five hearings. It is unclear whether the applicants raised the non bis in idem arguments at the trial stage of the criminal proceedings.

Eventually, the parties reached a friendly settlement.

By decisions of 30 October and 28 November 2007 the District Court upheld the settlement and discontinued the criminal case.

The applicants did not appeal.

The applicant tried to shoplift a bottle of alcohol. He was accused of the administrative offence under Article 7.27 (petty theft) of the CAO. Officials of the Cheboksary police station no. 3 compiled the administrative offence record and submitted it for adjudication to a peace justice. By judgment of 17 February 2011 the peace justice convicted the applicant of the offence and sentenced him to a fine of 1,000 Russian roubles (RUB).

No public prosecutor took part in the proceedings. No appeals were lodged and the judgment became final.

On 17 May 2011 officials of the same police station opened a criminal case against the applicant, accusing him of the criminal offence under Article 161 § 2(g) (robbery, coupled with use of violence not harming limb or life) of the Criminal Code. Allegedly, the applicant had pushed the shop security officer away when trying to leave the shop with the bottle of alcohol.

On 26 August 2011 the applicant was arrested and detained pending the criminal investigation and trial.

By judgment of 7 October 2011 the Kalininskiy District Court of Cheboksary convicted the applicant of the criminal offence and sentenced him to two years and six months ’ imprisonment, to be served in a strict regime colony. On 1 December 2011 the Supreme Court of the Chuvashiya Republic upheld the judgment. Both courts dismissed the applicant ’ s ne bis in idem arguments as having no basis in domestic law.

On 29 May 2012 officers Ya . and Z. arrested the applicant because, as mentioned in the administrative offence record, he had been using (unspecified) coarse language in public at 10.10 p.m near Univermag shop at Kislovodskaya Street 1. The police compiled the administrative offence record under Article 20.1 § 2 of the CAO (hooliganism, coupled with disobedience to a lawful order from a public official on duty or when putting an end to a breach of public order).

By judgment of 30 May 2012 a peace justice convicted the applicant of the offence and sentenced him to a fine of RUB 1,000. No appeal was lodged and the judgment became final.

On 7 June 2012 the authorities also charged the applicant under Articles 318 and 319 of the Criminal Code.

Officer Ya . stated that they had spotted the applicant sleeping on the bench; he had woken him up and started to talk to him; the applicant had started to use coarse language and to shout; Ya . had ordered him to calm down but the applicant had continued his swearing, this time, against the officer and had been swinging his arms, touching the officer ’ s face and taking off his uniform ’ s shoulder strap.

By judgment of 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 service work of 160 hours. The court considered as follows:

- Around 10 p.m. on 29 May 2012 the applicant had used coarse language in public and had not responded to the police officers ’ orders to stop his unlawful actions thus committing the administrative offence (see above).

- “Between 9 p.m. and 10 p.m.” the officers had ordered the applicant to stop his swearing in public but the applicant had made (unspecified) insulting statements in respect of officer Ya . and then, around 10 p.m., grabbed his uniform and hit him on his face.

On 10 October 2013 the Stavropol Regional Court upheld the judgment.

B. Relevant domestic law and practice

1. Duplication of proceedings

Article 50 of the Russian Constitution provides that no one should be convicted again of the same “crime” ( преступление ) .

Article 6 of the Criminal Code provides that no one can be held criminally liable twice for the same “crime” ( преступление ) . Article 27 of the Code of Criminal Procedure ( CCrP ) contained, at the relevant periods of time, various grounds for discontinuation of criminal prosecution such as the existence of a final criminal judgment on the same charges against the defendant or the existence of a final court decision to discontinue a criminal case on the same charges.

Article 4.1 of the CAO provides that no one should be subject to administrative liability twice for the same “administrative offence”.

Article 24.5 of the CAO provided, at the relevant time, that the administrative offence proceedings could not be opened or pursued if for the same fact of unlawful (in)action by the same person there was already a decision to open criminal proceedings ( постановление о возбуждении уголовного дела ).

The application of Article 24.5 of the CAO depends on whether the substantial elements of the unlawful action were taken into consideration when classifying it under the specific Article of the Criminal Code, as recorded in the decision to open criminal proceedings; whether any of these elements are identical to those that had been used to classify the same person ’ s actions when opening an administrative offence case (Jurisprudential Review of the Supreme Court, as approved by its Presidium on 3 July 2013).

It is unclear whether, at the relevant periods of time, Article 24.5 could be properly applied to annul a final court decision on an administrative offence to give way to the pending criminal investigation, which was opened before or after the administrative offence decision became final or even before institution of administrative offence proceedings ( see, decision no. 4-"a"-289/2013 of 26 August 2013 by the Smolensk Regional Court; decision no. 4a-143/2014 of 5 February 2014 by the Sverdlovsk Regional Court; (decision of 21 July 2014 by the Orlov Regional Court; see, by contrast, decision no. 44a-1021-2011 of 28 November 2011 by the Perm Regional Court; decision no. 4A-37/2013 of 15 July 2013 by the Supreme Court of the Kalmykiya Republic). Some of the above cases concerned the relevant similarity between prosecution under Article 19.3 of the CAO and Articles 318 and/or 319 of the Criminal Code.

2. Another relevant legislation

A judge ’ s decision on detention was amenable to appeal before a higher court within three days after its delivery date (Article 108 § 11 of the CCrP ). A statement of appeal was to be submitted to the first-instance co urt (Article 355 of the CCrP ). T he first-instance court was then to submit the detention file to the higher court. Having received this file, second-instance courts was to examine , within three days , the appeals lodged against the judge ’ s decisions on detention (Article 108 § 11).

At the relevant time, following discontinuation of criminal prosecution on account of a friendly settlement a defendant did not have a right to compensation on account of wrongful prosecution (a “non-rehabilitating” ground (Articles 79 and 133 of the CCrP ) but the person concerned did not have a criminal record.

COMPLAINTS

1. The applicants in application no. 44015/07 complain under Article 5 § 4 of the Convention about the delays in the proceedings relating to their detention. They also allege that their prosecution under Articles 318 and 319 of the Criminal Code offended the requirements of Article 4 § 1 of Protocol No.7 and that Russian law contained no requirement to discontinue criminal proceedings on account of a final decision concerning an administrative offence relating to the same events.

2. The applicant in application no. 36462/12 argues that his criminal prosecution under robbery offended the requirements of Article 4 of Protocol No. 7.

3. The applicant in application no. 28882/14 alleges under Article 4 of Protocol No. 7 that he was convicted twice for the same events, in particular as regards his swearing in public and insulting officer Ya .

COMMON QUESTIONS

1 . 1. Did Russian law, at the relevant periods of time, make provision for the application of the ne bis in idem principle to bar criminal prosecution on account of a final judgment in a CAO case? If not, did it dispense/prevent the criminal courts from applying the ne bis in idem principle?

1.2. Was there a violation of Article 4 § 1 of Protocol No. 7 in the applicants ’ cases? Did the courts give a proper assessment of the related arguments?

CASE SPECIFIC QUESTIONS

44015/07:

1. 1. Was an appellate court dealing with an appeal against a court order extending detention empowered to order release? Did national law or regulations contain specific time-limits for processing and examining such appeals or for re-examination of the detention issue where an appeal court quashed the detention-related court decision (cf. Shakurov v. Russia , no. 55822/10 , § 75 , 5 June 2012 )? If not on both accounts, did this remedy lack effectiveness for the purpose of Article 5 § 4 of the Convention?

1.2. If the appeal procedure had the requisite effectiveness, was there a violation of Article 5 § 4 of the Convention on account of the delays in the court proceedings relating to the applicants ’ detention (namely, the appeal proceedings and the proceedings resulting in the decisions of 19 April and 14 May 2007)?