Illegal protest demonstration. Demonstrator convicted twice for the same demonstration. Violation of the fundamental principle ne bis in idem.

JUDGMENT

Korneyeva v. Russia 08.10.2019 ( no. 72051/17)

see here

SUMMARY

The case concerned the applicant being convicted of two separate offences originating in the similar
circumstances of an unauthorised rally.

The Court in particular rejected the Government’s argument that the duplication of the proceedings
against the applicant had been justified by the distinct areas covered by two different charges.

The Court found there was an overlap of the facts which were at the basis of each prosecution.
Taking account of its own case-law and a ruling of the Plenary of the Supreme Court of Russia in
similar circumstances, the Court found that the applicant had been tried and convicted twice for the
same offence, in violation of her rights.

PROVISIONS

Article 5 par. 1,

Article 6 par. 1,

Article 4 par. 1 of protocol  7,

Article 46

PRINCIPAL FACTS

The applicant, Katerina Olegovna Korneyeva, is a Russian national who was born in 1996 and lives in
St Petersburg (Russia).

In June 2017 Ms Korneyeva was present in a park in St Petersburg where a protest rally was taking
place, although she states that she did not take part in the event.

The police rounded up the demonstrators, including the applicant, and she was taken under escort
to a police station. She was charged under two different Articles of the Code of Administrative
Offences (CAO) in relation to the rally. She was released the following day.

Three days later a District Court judge examined two cases against the applicant in turn in separate
hearings, one for each Article. She was present at the hearings with her lawyer.

In each case the judge refused a defence request for a public prosecutor to be present to support
the charges and issued two separate judgments against the applicant.

One found her guilty of an offence under Article 19.3 § 1 of the CAO for failure to comply with a
lawful police order to cease her participation in an unlawful rally, fining her 500 Russian roubles
(RUB) (approximately seven euros (EUR) at the time).

The other found her guilty of an offence under Article 20.2 § 5 for failing to comply with her
statutory obligation under the Public Events Act to comply with a police order, in this case to stop
taking part in the event, fining her RUB 10,000 (approximately EUR 140) .

Ms Korneyeva appealed, alleging that she had been tried twice for the same offence and asking that
the police officers who had given the pre-trial written testimony be summoned for questioning. The
judge first examined one appeal, upholding the first-instance ruling, which then became final. At a
separate hearing he then continued by examining the second appeal. The appeal court rejected her
double jeopardy plea and declined to require the presence of the police officers on the grounds of
there being enough evidence to uphold the first-instance decisions.

THE DECISION OF THE COURT

Article 5 § 1

The Court noted that under Russian law it was lawful to escort a suspect to a police station if it was
not possible to draw up an administrative offence report at the place where an offence had been
committed. However, none of the documents in the case had shown why the police officers had not
been able to write the report at the time of her arrest and the Government had not shed any light
on that question in its submissions.

As to the administrative arrest order issued against her, the Court found nothing in the case file to
justify the applicant being deprived of her liberty from 10 pm on the day of her arrest to 8 pm the
following day. In particular, such a measure could only be justified under the law by “exceptional
circumstances”, however, there was no indication that the police had made any consideration of
such a factor to justify keeping her detained.

The Court found that there had been a violation of Article 5 § 1 from at least 2.50 pm on the day of
her arrest to 8 pm the following day, when she had been released.

Article 6

The Court noted that it had found violations of this Article in previous cases against Russia owing to
the lack of a prosecuting party during oral hearings on administrative charges. It found that the legal
and factual elements of this case were similar and saw no reason to depart from its findings in those
judgments. There had therefore been a violation of the applicant’s right to a trial by an impartial
tribunal in the hearings.

Article 4 of Protocol No. 7

The applicant argued that she had been prosecuted and sentenced twice over the same facts, noting
that the offence record for each instance and the police officers’ statements had been identical.

The Government submitted that the Articles of the CAO under which she had been prosecuted
referred to two different offences: Article 19.3 punished disobedience to a lawful police order while
Article 20.2 penalised a breach of the established order for public events. Moreover, the two Articles
were found in different chapters of the CAO.

The Court did not accept that the duplication of the proceedings in Ms Korneyeva’s case was
justified by the different types or areas of protection covered by each offence. What mattered was
that there was an overlap of the facts which had formed the basis for both prosecutions.

Indeed, both accusations had been based on her participating in an unlawful rally: the first had been
for her refusing to comply with a police officer’s order to leave the rally under Article 19.3 § 1 of the
CAO. The second, under Article 20.2 § 5 of the CAO read with section 6(3) of the Public Events Act,
had been for her failure to comply with her obligation under the Public Events Act to comply with
police orders, in this case, to end her participation in the event.

The Court noted that the Plenary of the Supreme Court had in substance found in a June 2018
decision that accusations of the kind made against Ms Korneyeva were intertwined, but that they
should be examined under Article 20.2 § 5 of the CAO alone.

On the basis of its case-law, the Court thus found that Ms Korneyeva had become liable to be tried
or punished again once the first appeal judgment had been issued. She had therefore been punished
twice for the same offence and there had been a violation of Article 4 § 1 of Protocol No. 7 to the
Convention.

Article 46

The Court noted that it had more than 100 applications dealing with issues that were similar to those
in Ms Korneyeva’s case. Unlike other procedural codes of the Russian Federation, the CAO did not
have a mechanism for reopening or re-examining court decisions which the Court found had led to a
violation of the Convention. The Court was not convinced that Article 30.12 of the CAO, normally
used for the review of final court decisions issued under that Code, would serve that purpose.

Nevertheless, it appeared that the Plenary Supreme Court’s position that cases brought under the
two Articles used against Ms Korneyeva should only be prosecuted under one of them, Article 20.2 §
5, was applicable to cases brought before June 2018. No review of Ms Korneyeva’s case had taken
place under Article 30.12 of the CAO with reference to the Plenary Supreme Court’s approach so
that one of the convictions would be set aside and any persisting consequences eliminated.

That being said, as regards cases finally decided domestically prior to June 2018 like the present one,
it remained open to the Government to make appropriate use of the available legal avenues which
might yield the result mentioned above, namely where it was a conviction under Article 19.3 § 1 of
the CAO that had given rise to the ne bis in idem issue.

More generally, it remained for the Government, together with the Council of Europe Committee of
Ministers, to consider what measures could be appropriate to facilitate the rapid and effective suppression of a malfunction in the national system of human-rights protection, for instance, by way of further clarifying the scope of the ne bis in idem principle in CAO cases in a manner compatible with the Court’s approach in this case and ensuring its practical application within the applicable domestic remedies

Just satisfaction (Article 41)

The Court held that Russia was to pay the applicant 3,250 euros (EUR) in respect of non-pecuniary
damage and EUR 2,500 in respect of costs and expenses. echrcaselaw.com).


ECHRCaseLaw

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