Communicated on 27 August 2015

FIRST SECTION

Application no. 34646/06 Aybek Khabdulmutalapovich ZHAKIYANOV against Russia lodged on 21 May 2006

STATEMENT OF FACTS

The applicant, Mr Aybek Khabdulmutalapovich Zhakiyanov , is a Russian national, who was born in 1969 and is serving a prison sentence in colony no. 25 in the Kirov Region.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Administrative offence proceedings

Following a complaint from Ms G., Uspenskiy police station drew an administrative offence record under the Code of Administrative Offences (CAO) in relation to its Article 20.1 (minor hooliganism) and submitted it to the peace justice. The applicant pleaded guilty. The case not being instituted by a prosecutor, the latter did not take part in the proceedings. No other public official was present at the hearing. By judgment of 5 August 2005 the peace justice convicted the applicant and sentenced him to ten-day detention. The court described the relevant factual circumstances as follows:

“ [The applicant] is guilty of minor hooliganism on account of the following facts:

Around 5 a.m. on 4 August 2005 being drunk he rushed into Ms G. ’ s residence and started to coarse language against her, did not cease his behaviour despite her requests, thus manifestly breaching public order and quietness.”

No appeal was lodged and the judgment became final ten days later. The applicant served the term and was released on 15 August 2005.

In the meantime, following the complaint from Mr R. (G. ’ s boyfriend) on 7 August 2005, on 12 August 2005 Uspenskiy police station opened a criminal case against the applicant in relation to the events on 4 August 2005 (see section 2 below).

On 23 November 2005 the district prosecutor sought restoration of the time-limit for appeal against the judgment of 5 August 2005 and discontinuation of the administrative offence case. The prosecutor argued that Article 24.5 of the CAO required that the administrative case be annulled on account of the pending criminal trial.

On 24 November 2005 the Uspenskiy District Court, apparently, restored the time-limit for appeal and examined the prosecutor ’ s appeal. The court held as follows:

“It follows from the judgment of the peace justice that [the applicant] entered Ms G. ’ s home without her consent. Thus, the peace justice initially considered that [the applicant ’ s] actions disclosed elements of a crime punishable under Article 139 of the Criminal Code, that is unlawful entry of one ’ s home without that person ’ s consent and with use of violence.

It follows from the decision to give [the applicant] the accused status that he was also charged under Articles 139, 213 and 117 of the Criminal Code.

All actions held against [the applicant] in the framework of the administrative offence case and within the criminal case took place on 4 August 2005 in G. ’ s residence.

Therefore, the peace justice should have discontinued the administrative offence case on the ground that there was no corpus delicti of an administrative offence but were elements of a crime.”

Subsequently, the applicant sought supervisory review, as it appears arguing, inter alia , that a district prosecutor had had no power to bring an appeal, that it was unjustified to quash the judgment of 5 August 2005.

On 7 December 2006 and 3 March 2007 the Krasnodar Regional Court upheld the appeal decision of 24 November 2005 on supervisory review. On 9 June 2007 the Supreme Court of Russia also confirmed the appeal decision, noting that in the circumstances the only lawful course of action with due regard to Article 24.5 of the CAO was to discontinue the administrative offence case.

2. Criminal proceedings

As already mentioned, following R. ’ s complaint dated 7 August 2005, on 12 August 2005 Uspenskiy police station opened a criminal case against the applicant in relation to the events on 4 August 2005. First, the facts were classified under Article 119 (threat of murder or threat of grave bodily harm) of the Criminal Code. In September 2005 the district prosecutor assigned the case to an investigator. The latter then discontinued the case. On 22 September 2005 he opened a new case, classifying the same facts under Articles 139 (violation of inviolability of home) and 213 (hooliganism) of the Criminal Code.

The applicant was placed in detention in relation to the pending criminal case.

On an unspecified date, the facts were also classified under Article 117 (torture) of the Criminal Code and the case was submitted for trial.

At the trial, in November 2005 the applicant vainly argued that he had already been convicted by the final judgment in the administrative offence case and that it should stand, irrespective of the criminal proceedings. The District Court refused to discontinue the criminal case.

By judgment of 5 December 2005 the District Court convicted the applicant under Articles 117, 139 and 213 of the Criminal Code. The factual circumstances of the criminal judgments were as follows:

“[The applicant] is guilty of hooliganism, that is serious violation of public order, which consists of manifest disrespect to the society ... The circumstances of the crime are as follows:

Around 5 a.m. on 4 August 2005 being drunk and having a brought a fork without the intention to use it as a weapon, he came to R. ’ s house where the latter was residing with G. who was pregnant ... [The applicant] disrupted the quiet of citizens, kicked to the door with his hands and legs, used coarse language ... G. opened the door and told him to go away but he did not comply. He grabbed G. and put the fork close to G. ’ s stomach and started to insult G. and to threaten her with violence ... [The applicant] then pushed G. into the flat and rushed into it, thus breaching the inviolability of one ’ s home ... He then started to beat R., using the fork. Causing more than 500 wounds ...”

By its judgment of 5 December 2005 the court sentenced the applicant to nine years ’ imprisonment for the above offences. Having regard to his conviction in other proceedings under the judgment of 16 September 2005 (see section 3 below), the court ordered a cumulative sentence of ten years ’ imprisonment to be served in a strict regime detention facility.

On 29 March 2006 the Krasnodar Regional Court upheld the judgment.

Thereafter, the applicant was transferred to a strict detention facility to serve the prison terms imposed under the judgment of 5 December 2005, as well as under the judgment of 16 September 2005 (see section 3 below).

Thereafter, the Regional Court refused, on procedural grounds, to examine the applicant ’ s application for supervisory review.

However, on 28 April 2008 the Regional Court examined his renewed supervisory request and confirmed the judgments of the lower courts. The court dismissed the ne bis in idem argument (i n particular as regards Article 213 of the Criminal Code) with reference to the fact that the administrative offence case had been discontinued on account of the absence of corpus delicti of the administrative offence under Article 20.1 of the CAO. On 26 September 2008 the acting President of the Regional Court agreed with this assessment. On 17 March 2009 the Supreme Court of Russia dismissed a further application for supervisory review. On 8 June 2009 the deputy President of the Supreme Court agreed with the above, indicating that the applicant could use another procedure for bringing the criminal judgments against him in line with new (more favourable) legislation.

On 22 December 2010 the Regional Court examined the renewed supervisory-review applications in relation to the judgment of 5 December 2005. The court ordered that the applicant be transferred to a normal regime prison and reduced the sentence (see below). The court made no findings concerning the ne bis in idem requirement.

3. Other relevant proceedings

In 1998 the applicant was convicted of causing bodily injuries to another person and was sentenced to a suspended prison term.

In separate proceedings, on 12 May 2000 the applicant was convicted of another crime. Regard being had to the presence of recidivism (wrongly, as confirmed by the courts in 2009, see below), he was sentenced to four years ’ imprisonment. He was allowed early release in 2003.

Also, in 2003 there were some favourable changes in the legislation, which should have entailed modification of these sentences. However, these modifications were only done in 2009 (see below). Moreover, the applicant was entitled to the application of the 2000 Amnesty Act. It was only applied to him in 2009 in respect of the above convictions (see below).

Later on, in another criminal case, on 16 September 2005 the District Court convicted the applicant of attempted theft and sentenced him to four years ’ imprisonment. At this trial (and also in December 2005, see section 1 above) the court referred to the presence of a “grave recidivism” on account of the earlier criminal record. Noting the presence of “grave recidivism” the court determined, under Article 58 of the Code of Criminal Procedure ( CCrP ), that the applicant was to serve the prison term of four years in a strict regime detention facility.

As no appeal had been lodged, the judgment became final and the applicant started to serve his sentence. Since the earlier convictions had not been timely amended, the courts in 2005 (wrongly, as confirmed in 2009) determined the presence of a “grave recidivism” and ordered the applicant to serve new prison terms in the strict regime detention facility.

Thereafter, the applicant sought to modify his earlier convictions on a variety of grounds. On 22 July 2009 the Supreme Court of the Mordoviya Republic took the following decisions:

- As regards the 1998 conviction, the court absolved the applicant from the sentence with reference to the 2000 Amnesty Act.

- As regards the 2000 conviction, the court removed the reference to recidivism as inappropriate and absolved the applicant from the sentence with reference to the 2000 Amnesty Act.

- As regards the 2005 criminal convictions, the court stated that the applicant should challenge them by way of supervisory review.

On 1 December 2010 the Krasnodar Regional Court examined supervisory-review applications by the applicant and the regional prosecutor in relation to the judgment of 16 September 2005. The court considered that the decision of 22 July 2009 entailed the conclusion that there was no “grave recidivism” in the applicant ’ s actions since the person who had been absolved of the sentence could not be considered as having a criminal record. By implication, this conclusion meant that the applicant could not be kept in the strict regime detention facility. So, by judgment of 1 December 2010 the Krasnodar Regional Court reduced the applicant ’ s sentence but also ordered that the applicant be transferred to the normal regime prison.

On an unspecified date, the applicant was transferred to the appropriate detention facility.

The applicant brought further proceedings seeking compensation on account of his long detention in the strict regime conditions. He relied on Article 133 of the Code of Criminal Procedure concerning compensation on account of a wrongful conviction. On 25 October 2011 the District Court refused to examine his claim as not falling within the scope of Article 133. On 14 December 2011 the Regional Court upheld this decision.

4. The applicant ’ s correspondence with the Court

The applicant ’ s first letter to the Court was dated 21 May 2006 and was dispatched by the prison staff, through the Postal Service, on 3 August 2006.

The applicant ’ s correspondence to the Court between 2008 and 2011 was accompanied by cover notes from the prison staff of various detention facilities, summarising the number of enclosed pages. The cover letters were placed inside the envelopes sent to the Court.

B. Relevant domestic law and practice

1. Duplication of proceedings

Article 50 of the Russian Constitution provides that none 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”. Article 27 of the Code of Criminal Procedure contained various grounds for discontinuation of criminal prosecution such as the existence of the final criminal judgment on the same criminal charges against the defendant or the existence of a final court decision to discontinue a case on the same criminal charges.

Article 4.1 of the CAO provides that none 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 provision 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 time, Article 24.5 could be applied to annul the final court decision on an administrative offence to give way to a 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).

2. Another relevant legislation

Article 58 of the CCrP provided that male defendants convicted on account of recidivism and who had previously already served a prison term or terms, were to serve the prison term in strict regime detention facilities; male defendants convicted on account of “particularly grave recidivism” were also to serve the prison term in such facilities.

COMPLAINTS

The applicant complains in substance under Article 5 of the Convention that he was unlawfully kept in the strict regime detention facilities for several years and that no compensation was available for this violation at the domestic level.

The applicant complains under Article 4 of Protocol No. 7 and, in substance, under Article 6 of the Convention about the criminal prosecution despite the final judgment under the CAO on the same events; the unlawful examination of the belated appeal from the prosecutor having no authority for that; the unjustified quashing of the final judgment of 5 August 2005; and the ensuing criminal conviction.

QUESTIONS TO THE PARTIES

1. Was there a violation of Article 6 of the Convention on account of the examination of the belated appeal from the district prosecutor and the quashing of the final judgment of 5 August 2005 (see Bezrukovy v. Russia , no. 34616/02 , §§ 35-44 , 10 May 2012 , and Eduard Chistyakov v. Russia , no. 15336/02, §§ 22-28 , 9 April 2009 )? In particular:

- Did a district prosecutor have authority to lodge an appeal in the circumstances of the case?

- Did the appeal court give reasons for accepting to deal with it?

- Did the CAO, in particular its Article 24.5, allow the quashing of a final judgment? If it did, did the courts refer to any fundamental defect to justify the quashing of the judgment of 5 August 2005?

2 . Was there a violation of Article 4 of Protocol No. 7 on account of the criminal prosecution, despite the final judgment under the CAO; subsequent quashing of this judgment and the ensuing criminal trial?

3 . 1. Was there a violation of Article 5 § 1 of the Convention on account of the belated correction of the prison regime (see Somogyi v. Hungary , no. 5770/05 , §§ 22-28 , 11 January 2011 , and Dmitriy Rozhin v. Russia , no. 4265/06, § 61 , 23 October 2012 )?

3.2. Did the applicant have an enforceable right to compensation, as required under Article 5 § 5 of the Convention, on account of the allegedly unlawful period of detention for the reasons stated above? If the Court finds a violation of Article 5 of the Convention in the present case, will such judgment entitle the applicant to claim compensation under Russian law (see Stanev v. Bulgaria [GC], no. 36760/06 , §§ 189-190, ECHR 2012 )?