PARTLY DISSENTING OPINION OF JUDGE LOBOV

1. While agreeing, albeit for slightly different reasons, with the Chamber’s finding regarding the inadmissibility of the complaint of a violation of the applicant’s right to freedom of expression, I am unable to endorse the majority’s position on the violation of Article 7 on account of the allegedly retroactive application of the criminal law.

2. The Chamber unambiguously accepted that the applicant had engaged in “ criminally reprehensible conduct by making false representations to the authorities ” (see paragraph 44 of the judgment). As a result, she was convicted in November 2015 under Articles 322.2 and 322.3 of the Criminal Code, both of which had been enacted in January 2014, on account of a “continuous offence” resulting from a mass infringement of the immigration rules in 2013 and 2014 (section 2(1)(7) and (10), section 14 and section 15 of Law no. 109-FZ of 18 July 2006 on the migration registration of foreigners and stateless persons, and section 2(3) of Government Decree no. 9 of 15 January 2007 on migration registration procedures).

3. The concept of “continuous offence” has already been examined at length by the Court in Rohlena v. the Czech Republic (no. 59552/08, § 56, ECHR 2015) . The Grand Chamber unanimously found that there was no violation of Article 7 in that case. The majority’s attempt to distinguish the present case from Rohlena does not sit well, in my view, with either the Grand Chamber’s approach to continuous offences or the consonant interpretation by the Russian courts of the applicability of the domestic criminal legislation to the applicant’s case.

4. The similarities between Rohlena and the present case are most striking indeed. In both cases, the domestic courts relied on the concept of a continuous criminal offence, which was well established in both respondent States in line with deep-rooted legal traditions. The Court’s comparative legal analysis demonstrated that “ the notion of a continuous criminal offence [was] not only a commonly used legislative and judicial approach to penalising a particular type of conduct, but [was] also specifically aimed at applying more lenient sentencing rules ” (ibid., §§ 30-37).

5. The Czech courts in Rohlena applied a more recent criminal-law provision to a continuous criminal offence of domestic violence (Article 215a of the Czech Criminal Code), while clearly asserting that the offence had also been punishable under the previous criminal legislation (Article 197a or Article 221 § 1 of the Czech Criminal Code). Likewise, the Russian courts in the present case applied the new Articles 322.2 and 322.3 of the Russian Criminal Code to a continuous criminal offence consisting of a mass breach of the immigration rules, while clearly asserting that the applicant’s conduct had also been punishable under the previous law, namely Article 322.1 of the Criminal Code, as that Article included “fictitious residence registration” as a way of organising the “illegal stay” of migrants in the country. The Russian court further specified that the new Articles 322.2 and 322.3 constituted leges speciales that regulated specific aspects of what had been previously one general offence and provided for lower penalties in respect of each (see paragraph 13 of the judgment).

6. Contrary to the Grand Chamber’s unanimous position in Rohlena , the majority surprisingly remained deaf to the above findings of the domestic court in the present case. Indeed, the majority failed to respond to the domestic court’s assessment of the three relevant Articles (322.1, 322.2 and 322.3) as an ensemble of interconnected criminal-law provisions. Instead, the judgment has blatantly overruled what appears on its face to be a reasonable and straightforward interpretation of Article 322.1 by the domestic court (“illegal stay” as comprising “fictitious residence registration”).

7. The central argument in the majority’s reasoning consists of adverse inferences drawn from the Government’s failure to provide domestic case-law on the prosecution of other persons in the applicant’s position under Article 322.1 prior to 3 January 2014 (see paragraph 32 of the judgment). Yet the existence of such case-law had never been considered by the Grand Chamber in Rohlena to be a decisive precondition for the Court to find that the applicant’s conduct had amounted to a criminal offence prior to the amendment of the legislation. On the contrary, paragraph 59 of the Grand Chamber’s judgment, which is quoted by the majority to distinguish Rohlena from the present case, strictly stuck to the interpretation by the Czech domestic courts of the interconnection between the old and new provisions. As a result, the Grand Chamber’s conclusion in paragraph 62 of Rohlena cannot be contrasted with the present case but should have been followed in the present circumstances too. The Chamber could accordingly have concluded in virtually identical terms as follows: “Since the applicant’s conduct before 3 January 2014 amounted to a punishable criminal offence under Article 322.1 of the Criminal Code and comprised the constituent elements of the Articles 322.2 and 322.3 offence, the Court accepts that the fact of holding the applicant liable under the said provisions also in respect of acts committed before that date did not constitute retroactive application of more detrimental criminal law as prohibited by the Convention” (see Rohlena , cited above, §§ 59 and 62).

8. Admittedly, the alleged absence of domestic case-law relating to Article 322.1 may have demonstrated a high degree of official tolerance in respect of fictitious registration practices before 3 January 2014. The majority are no doubt aware that the challenges in migration management are far too complex and there are seldom easy answers. Prosecutions in respect of unlawful migration accordingly involve tough policy choices at the domestic level. The Court is not best placed to engage in second-guessing the evolution of criminal policies in this sensitive area (see the majority’s reasoning in paragraph 33 of the judgment), let alone in reassessing the domestic courts’ interpretation of the criminal legislation unless it appears arbitrary or manifestly unreasonable. At any rate, the alleged absence of examples of prosecution, which had been neither requested from the parties in the proceedings nor verified by the Court of its own motion, is not sufficient to challenge the applicability of a particular criminal-law provision to the applicant’s conduct at a given point in time. Nor does the high degree of official tolerance towards a particular offence make it automatically unpunishable under the Criminal Code.

9. Lastly, the majority should not have lost sight of the conspicuous fact that the domestic court gave the applicant the most lenient sentence possible, ordering an exemption from payment of the fine and relieving her from acquiring a criminal record. The outcome of the proceedings genuinely demonstrates that the domestic courts’ application of the concept of continuous offence under the new Articles 322.2 and 322.3 as leges speciales in relation to Article 322.1 was by no means arbitrary or unreasonable. On the contrary, the applicant benefited from the most favourable outcome. Both the purpose and the spirit of Article 7 of the Convention were therefore fully respected in line with the Court’s case-law.

Appendix

List of applications

1. 38825/16 Kotlyar v. Russia

2. 29722/18 Kotlyar v. Russia

3. 12920/20 Kotlyar v. Russia