Case: Igor Tarasov v. Ukraine
Judgement date: 16 June 2016
Topic: Right not to be tried or punished twice (the non bis in idem
Aspect: The definition of idem

Summary of the facts:
This case concerned administrative and criminal proceedings brought against the applicant following an altercation in a bar. The applicant complained in particular about being tried and punished twice for the same offence.

Summary of the Court's findings:
The Court held that there had been a violation of Article 4 of Protocol No. 7, finding that both sets of proceedings were criminal and that the Ukrainian authorities had duplicated criminal proceedings, which concerned substantially the same facts, in breach of the principle non bis in idem.

The facts:
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1957 and lives in Sevastopol.
6. At about 5 a.m. on 26 January 2002 the applicant had a fight in a local bar during which injuries were sustained by bar staff and damage was caused to property in the bar. The police arrived to handle the matter. They took the applicant and his companion, I., to the police station. The applicant was arrested for an administrative offence of “minor disorderly acts ” provided for in Article 173 of the Code of Administrative Offences.
A. Conviction for an administrative offence
7. On 28 January 2002 the Nakhimovskyy District Court of Sevastopol (“the District Court”) found the applicant guilty of the above offence and sentenced him to five days ’ administrative detention. The court set out the following grounds for the conviction:
“ ... At about 5 a.m. on 26 January 2002 Tarasov, being drunk in the [ L .N. ] bar located at ... used obscene language about the bar staff, grabbed and swung a wooden chair leg, threatened physical violence, ignored the remarks addressed to him, and thereby breached the public order and peace of the citizens. In other words, he engaged in minor disorderly acts. ... ”
8. The judgment was not open to appeal and became final.
B. Criminal proceedings against the applicant
9. On 29 January 2002 the investigator of Nakhimosvkyy District Police Department of Sevastopol instituted criminal proceedings against the applicant and I. for disorderly acts in the bar on 26 January 2002. At a certain point an additional charge against the applicant was included in the case in relation to the injuries which he had allegedly caused to his wife in a separate incident.
10. On 14 October 2003 the District Court adopted the judgment in the criminal case. It also resolved a civil dispute lodged by the victims within the criminal proceedings. With respect to the applicant, the District Court convicted him of two offences : the offence provided for in Article 122 § 1 of the Criminal Code ( “ intentional infliction of medium-severity bodily injuries ” ) and the offence provided for in Article 296 § 4 of the Criminal Code ( “ disorderly acts ” with aggravating circumstances).
11. As regards the first crime the District Court found it established that on 13 August 2001 the applicant had beaten his wife, intentionally causing injuries of medium severity.
12. As to the second crime, the District Court established that at about 4.30 a.m. on 26 January 2002 the applicant and his accomplice I., both drunk and armed with wooden chair legs, entered the L.N. bar where they committed a serious breach of public order. In describing the applicant ’ s conduct, the court stated that the latter, using obscene language, approached a table occupied by N., B., and K. ( bar employees ) and, using the wooden chair leg, inflicted minor bodily injuries on N. and K. The applicant also hit N. on the head with a bottle. Further, the applicant hit a table, which was covered with dishes, using the wooden chair leg, he then broke a mop and threw a beer bottle at the wall, thus causing damage to property. The applicant then went up to a waitress, M., kicked her in the hip and slapped her in the face.
13. In its judgment the District Court cited statements of the victims and some indirect evidence to support these factual findings. In particular, it referred to the statements of N., B., K., and M ., who had submitted that the applicant had shouted obscenities, threatened physical violence, inflicted the above - mentioned injuries and caused damage to property, and that B. had tried to calm him down.
14. The District Court classified the applicant ’ s acts under Article 296 § 4 of the Criminal Code as the offence of “disorderly acts ” committed with the use of an instrument constructed beforehand to inflict bodily injuries ( the wooden chair leg). It sentenced the applicant to three years ’ imprisonment for the two crimes taken together, combined with mandatory medical treatment in prison. The District Court also considered the applicant ’ s objection that he had earlier been convicted of an administrative offence as regards the same events of 26 January 2002. That argument was dismissed by the court on the ground that the applicant had previously been convicted under the Code of Administrative Offences and had received an administrative penalty, which was a different type of legal responsibility; accordingly, the administrative case did not constitute any obstacle to the criminal proceedings.
15. On 20 July 2004 the Sevastopol Court of Appeal upheld the applicant ’ s conviction, having amended the judgment of the District Court as regards the medical treatment of the applicant and his civil liability. On 27 January 2005 the Supreme Court dismissed, in the absence of the applicant, his appeal on points of law. The applicant was informed of the Supreme Court decision by the letter sent to him on 21 May 2005. The applicant ’ s allegation that he had been tried and punished twice for the same offence was dismissed by both courts as unfounded.

Relevant law and the Court's assessment:
II. RELEVANT DOMESTIC LAW
A. Constitution of 28 June 1996
16. Article 61 of the Constitution provides the following:
“No one shall have to bear legal responsibility of the same type for the same offence twice.
The legal responsibility of a person is of an individual character.”
B. Administrative Offences Code of Ukraine of 7 December 1984
17. Article 173 of the Code, as worded at the material time, provided as follows:
“Article 173. Minor disorderly acts ( дрібне хуліганство )
Minor disorderly acts, that is use of obscene language in a public place, offensive behaviour towards others, and other similar acts that breach public order and the peace of citizens,
shall be punishable by a fine of between three and seven times the minimum tax-free monthly income or by from one to two months ’ correctional work combined with the withholding of twenty percent of the offender ’ s wages, or – if, in the circumstances of the case and having regard to the offender ’ s character, these measures are not deemed to be sufficient – by up to fifteen days ’ administrative detention ( адміністративний арешт ).”
C. Criminal Code of Ukraine of 5 April 2001
18. Article 296 of the Code provides as follows:
“Article 296. Disorderly acts (хуліганство)
1. Disorderly acts, namely serious breach of public order motivated by flagrant disrespect of the community, combined with particular impudence and exceptional cynicism, shall be punishable ...
4. The acts, which are provided by the first ... paragraph of this Article, if committed with the use of ... an instrument adjusted specifically or constructed beforehand to inflict bodily injuries,
shall be punishable by imprisonment for a period of from three to seven years.”
D. Code of Criminal Procedure of 28 December 1960 (in force at the relevant time)
19. The Code provided that criminal proceedings had to be discontinued if there existed a final judgment in relation to the same charge, or a final court resolution or ruling terminating the proceedings on the same ground, or an effective decision of an inquiry officer, investigator or prosecutor terminating the proceedings in relation to the same charge, or an effective decision of the inquiring officer, investigator or prosecutor refusing to open criminal proceedings in relation to the same fact (Article 6 §§ 9-11).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7 TO THE CONVENTION
20. The applicant complained that he had been tried and punished twice for the same acts. He relied on Article 4 of Protocol No. 7, which reads as follows:
“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.
2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.
3. No derogation from this Article shall be made under Article 15 of the Convention.”
A. Admissibility
21. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties ’ submissions
22. The applicant maintained his complaint, arguing that he had been unlawfully tried and punished twice for the same offence.
23. Having regard to the severity of the sanction, the Government acknowledged that the administrative proceedings were criminal for the purpose of Article 4 of Protocol No. 7. They submitted that both sets of proceedings concerned the applicant ’ s conduct on 26 January 2002 in the same place. However, the facts that gave rise to administrative proceedings concerned the breach of public order on account of use of obscene language, swinging the wooden chair leg and threats of physical violence. In contrast, the facts that formed the essential element of the criminal charge concerned infliction of bodily injuries and damage to property. For these reasons the Government maintained that the applicant had not been punished twice for the same offence.
2. The Court ’ s assessment
(a) Whether the first set of proceedings was criminal in nature
24. The legal characterisation of the procedure under national law cannot be the sole criterion of relevance for the applicability of the principle ne bis in idem under Article 4 § 1 of Protocol No. 7. Otherwise, the application of this provision would be left to the discretion of the Contracting States to a degree that might lead to results incompatible with the object and purpose of the Convention. The notion of “penal procedure” in the text of Article 4 of Protocol No. 7 must be interpreted in the light of the general principles concerning the corresponding words “criminal charge” and “penalty” in Articles 6 and 7 of the Convention respectively (see Nykänen v. Finland, no. 11828/11, § 38, 20 May 2014, with further references).
25. The Court notes that the administrative offence at issue involved a possible sanction of detention up to fifteen days. Having regard to the nature and severity of the sanction, the Court considers that those proceedings were criminal for the purpose of Article 6 (see Galstyan v. Armenia, no. 26986/03, §§ 58-60, 15 November 2007, and Luchaninova v. Ukraine, no. 16347/02, § 39, 9 June 2011). Consequently, they fell within the ambit of “penal procedure” within the meaning of Article 4 of Protocol No. 7.
(b) Whether the offences for which the applicant was prosecuted were the same ( idem )?
26. In the case of Sergey Zolotukhin v. Russia (no. 14939/03, ECHR 2009) the Court reviewed the existing approaches to the interpretation of the principle ne bis in idem and concluded that Article 4 of Protocol No. 7 had to be understood as prohibiting the prosecution or trial of a second “offence” in so far as it arose from identical facts or facts which were substantially the same (ibid., § 82). It was therefore important to focus on those facts which constituted a set of concrete factual circumstances involving the same defendant and inextricably linked together in time and space, the existence of which had to be demonstrated in order to secure a conviction or institute criminal proceedings (ibid., § 84).
27. Turning to the present case, the Court notes that both sets of domestic proceedings dealt with the applicant ’ s conduct in the same place and within the same time span. The facts which gave rise to the first conviction for “ minor disorderly acts ” amounted to his (a) using obscene language about bar staff, (b) grabbing and swinging a wooden chair leg, (c) threatening physical violence, and (d) ignoring remarks addressed to him.
28. As to the second conviction for “ disorderly acts ”, it disclosed new relevant facts which were not mentioned in the first case : the infliction of injuries on bar staff and causing damage to bar property. The Court notes that these new elements originated from the same continuous conduct which was only partially described in the first conviction. In particular, it transpires from the second conviction that the applicant not only “ grabbed ” and “ swung ” the wooden chair leg, but used that object to inflict certain injuries on bar staff and to cause damage to property. It follows that the first conviction referred to some of the applicant ’ s movements which were made within a wider continuous action embraced by the same criminal intent of the applicant. Such extraction of movements from the wider context appears to be artificial, especially when the applicant was taken from the bar by the police who had the opportunity to properly and immediately assess the case at the scene of the crime.
29. As regards the other factual elements which were used to secure the applicant ’ s first conviction, the Court notes that the second conviction also referred to the fact that the applicant had been using obscene language, and this constituted a part of the applicant ’ s culpable conduct in the second case. In support of its factual findings, the court cited the victims ’ statements, which indicated that the applicant had threatened physical violence and B. had tried to calm him down. This corresponds to the respective parts of the facts which were used for the first conviction.
30. The Court therefore finds that the facts giving rise to both the applicant ’ s convictions were inextricably linked, and that the domestic courts ’ assessment in the second set of proceedings embraced substantially the same facts which had been examined in the first set of proceedings (compare Sergey Zolotukhin, cited above, § 97).
(c) Whether there was a duplication of proceedings ( bis )?
31. The aim of Article 4 of Protocol No. 7 is to prohibit the repetition of proceedings which have been concluded by a “final” decision. A decision is final for the purposes of this provision if it has acquired the force of res judicata. This is the case when it is irrevocable, that is to say when no further ordinary remedies are available, or when the parties have exhausted such remedies or have permitted the time ‑ limit to expire without availing themselves of them (see Sergey Zolotukhin, cited above, §§ 107 and 108, with further references). It is important to point out that Article 4 of Protocol No. 7 does not preclude the reopening of the proceedings, as stated clearly by the second paragraph of Article 4.
32. In the present case the first set of proceedings was terminated on 28 January 2002, when the District Court found the applicant guilty of the minor disorderly acts. That judgment was not open to appeal and was final. The second set of proceedings was instituted on 29 January 2002 and concluded on 27 January 2005, in other words after the judgment in the first set of proceedings had become final. It is remarkable that the trial court did not find the second proceedings problematic in terms of the principle ne bis in idem, dismissing the applicant ’ s argument in this respect on the ground that the first case dealt with a different type of legal responsibility. This reply was commensurate with the applicable procedural rules of domestic law providing no ground for discontinuing criminal proceedings if there had been a previous conviction for an essentially similar administrative offence (see paragraph 19 above). However, in Convention terms both sets of proceedings were criminal for the reasons set out above and it follows that the domestic authorities duplicated criminal proceedings, which concerned substantially the same facts, in breach of the principle ne bis in idem.
33. The Court holds therefore that there has been a violation of Article 4 of Protocol No. 7.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
34. The applicant further complained of other violations of his rights under the Convention. In particular, he alleged that the length of criminal proceedings was not compatible with the requirements of Article 6 § 1 of the Convention and that the conditions of his detention were contrary to Article 3 of the Convention.
35. The Court has examined these complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects them as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
36. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
37. The applicant claimed 995,000 Ukrainian hryvnias (“UAH”) in respect of pecuniary damage and UAH 4,000,000 in respect of non ‑ pecuniary damage.
38. The Government submitted that the claims were unfounded.
39. The Court finds no causal link between the violation found and the pecuniary damage claimed. As regards the non-pecuniary damage, the Court considers that in the circumstances of the present case a finding of a violation of Article 4 of Protocol No. 7 to the Convention constitutes in itself sufficient just satisfaction.
B. Costs and expenses
40. The applicant also claimed 5,000 for the costs and expenses incurred before the Court.
41. The Government submitted that the claim was not supported by evidence and had to be dismissed as unsubstantiated.
42. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case it has not been shown that the amount claimed had been incurred by the applicant. The Court therefore dismisses the claim.