FIFTH SECTIONCASE OF CHERNOV v. UKRAINE(Application no. 16432/10)    JUDGMENT STRASBOURG10 December 2020    This judgment is final but it may be subject to editorial revision. In the case of Chernov v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Stéphanie Mourou-Vikström, President, Ganna Yudkivska, Lado Chanturia, judges,and Martina Keller, Deputy Section Registrar,Having regard to:the application (no. 16432/10) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Oleksandr Gennadiyovych Chernov (“the applicant”), on 13 March 2010;the decision to give notice to the Ukrainian Government (“the Government”) of the complaint under Article 4 of Protocol No. 7 to the Convention and to declare inadmissible the remainder of the application;the parties’ observations;Having deliberated in private on 12 November 2020,Delivers the following judgment, which was adopted on that date:INTRODUCTIONThe application concerns the right not to be tried or punished twice. After serving a three-day administrative-offence sentence for minor disorderly acts, the applicant was subsequently convicted of disorderly acts in relation to the same facts in criminal proceedings. THE FACTS1. The applicant was born in 1965 and lives in Sumy. The applicant, who had been granted legal aid, was represented by Ms G.V. Ovdiyenko, a lawyer practising in Kharkiv.2. The Government were represented by their Agent, Mr I. Lishchyna.3. The facts of the case, as submitted by the parties, may be summarised as follows. Administrative proceedings against the applicant4. On 20 June 2007 the applicant was arrested for an administrative offence.5. On 21 June 2007 the Zarichnyy District Court of Sumy established that at about 10 p.m. on 20 June 2007 the applicant, being drunk outdoors on Prokofyeva Street in Sumy, had uttered obscenities, reacted aggressively to remarks made by police officers, cursed them in obscene language and attempted to start a fight, and that he had thus breached public order and the peace and had offended human dignity and morals. The court found the applicant guilty of “minor disorderly acts”, an offence under Article 173 of the Code of Administrative Offences, and sentenced him to three days’ administrative detention.6. This decision became final and could not be appealed against.7. The applicant served his sentence from 21 June to 23 June 2007.8. On 28 January 2008 the prosecutor lodged an objection (протест) against the decision. The relevant excerpt of the objection reads as follows.“... [The applicant] was found liable in administrative proceedings for breaches of public order and offences against human dignity and morals, as manifested in an attempt to start a fight, not reacting to remarks made by police officers and uttering obscenities. The offences took place on 20 June 2007 at about 10 p.m. near building no. 6 on Prokofyeva Street in Sumy.On 16 July 2007 M., a prosecutor of the Zarichnyy District of Sumy, opened a criminal case under Article 296 § 1 of the Criminal Code of Ukraine on the basis of these facts ... at present O.G. Chernov is facing charges under Article 296 § 3 for committing a crime.According to Article 9 of the Code of Administrative Offences, administrative liability for offences set out in the Code is triggered if the underlying facts of the offence do not lead to criminal liability. In the present case, the actions committed by O.G. Chernov give rise to criminal liability ...”9. On 6 February 2008 the Zarichnyy District Court of Sumy annulled its decision of 21 June 2007.10. The applicant appealed against that decision to the Sumy Regional Court of Appeal.11. On 25 February 2008 the Sumy Regional Court of Appeal upheld the decision of the Zarichnyy District Court of Sumy of 6 February 2008.Criminal proceedings against the applicant12. On the basis of a referral of 21 June 2007 issued by an assistant prosecutor of the Zarichnyy District of Sumy, a forensic examination of two people, Mu. and P., was carried out on 22 June 2007. It was established that they had minor physical injuries, which may have been inflicted on 20 June 2007.13. On 16 July 2007 a prosecutor of the Zarichnyy District of Sumy opened a criminal case against the applicant on suspicion of committing a criminal offence of disorderly acts within the meaning of Article 296 of the Criminal Code on 20 June 2007. The prosecutor established that on 20 June 2007, at about 10 p.m., on Prokofyeva Street in Sumy, the applicant, in an act of hooliganism, had caused physical injuries to Mu. and P.14. On 4 August 2007 the applicant was placed on a wanted list.15. On the basis of a decision of 20 August 2007 issued by an investigator of the Zarichnyy police department in the Sumy Region, another forensic examination of Mu. and P. was carried out on 14 September 2007. With reference to the descriptive part of the forensic examination of 22 June 2007, an expert concluded that Mu. and P. had minor physical injuries which may have been inflicted by blunt objects.16. On 23 December 2007 the applicant was arrested, under Article 296 § 3 of the Criminal Code, on suspicion of committing disorderly acts, namely causing physical injuries to Mu. and P. on 20 June 2007 at around 10 p.m. on Prokofyeva Street in Sumy.17. On 29 January 2008 the applicant was indicted for disorderly acts under Article 296 § 3 of the Criminal Code.18. On 14 July 2008 the Zarichnyy District Court of Sumy convicted the applicant under Article 296 § 3 of the Criminal Code of disorderly acts and sentenced him to two years’ imprisonment. The court made no mention of the administrative-offence proceedings or his three-day administrative detention. The applicant, his two representatives and a prosecutor appealed against that decision to the Sumy Regional Court of Appeal.19. On 7 October 2008 the Sumy Regional Court of Appeal quashed the conviction on account of inconsistencies between the facts of the case and the court’s conclusion (the first-instance court had specified 5 p.m. as the time of the offence, whereas the resolution on the opening of the criminal case and the victims’ statements had referred to 10 p.m.; and the first‑instance court had not described the “disorderly acts” in the way that they were defined in the relevant provision of the law (не виклав диспозицію цього закону)), and on the grounds that the sentence was too lenient. It remitted the case for fresh examination.20. On 29 October 2008 Judge Ma. at the Zarichnyy District Court of Sumy, who had considered the applicant’s administrative case and delivered the decision in the administrative-offence proceedings, withdrew from hearing the criminal case. Her application for withdrawal reads, in its relevant parts, as follows:“A criminal case, no. 1-464/08, has been allocated to me, concerning the indictment of [the applicant] under Article 296 § 3 of the Criminal Code of Ukraine.... I consider that the following circumstances impede my involvement in the examination of this case. ... [O]n 21 June 2007 I considered administrative case no. 3‑12128/07 on the administrative liability of O.G. Chernov under Article 173 of the Code of Administrative Offences. After examination of that case, a decision was adopted finding Mr Chernov liable for administrative offences and imposing a sanction of three days’ administrative detention. I annulled the said decision following an objection [протест] lodged by the Zarichnyy district prosecutor, as during the course of an additional investigation carried out by the public prosecutor’s office into the actions for which Mr Chernov was found liable in the administrative proceedings, the corpus delicti of a crime under Article 296 of the Criminal Code became apparent. It is for this reason that I have decided to withdraw.”21. On 29 December 2008 the Zarichnyy District Court of Sumy established that on 20 June 2007, at around 10 p.m., the applicant, who had been drunk while on Prokofyeva Street in Sumy, had come across Mu. and for no reason had pulled on the latter’s gold neck chain and damaged it. The applicant, uttering obscenities, had started beating Mu., kicking and punching his head and elsewhere on his body and in doing so had inflicted minor bodily injuries on him.22. Another victim, P., explained at the court hearing that she already knew Mu., as they had previously worked together at a police station. On 20 June 2007 at around 10 p.m., P. had met Mu. on Prokofyeva Street and had been talking to him when the applicant had started a fight. P. began to call out that she would contact the police. The applicant then left. Mu. was calling the police on his mobile phone when the applicant came back over to him, took his phone and threw it on the road. The applicant then left again. Mu. called the police on P.’s mobile phone. As Mu. was speaking on the phone with a duty police officer, the applicant came back over to him again. P. tried to stop the applicant by pulling the latter’s shirt sleeve, but the applicant, while resisting, damaged her t‑shirt and punched her in the face, causing minor bodily injuries and damaging her glasses. He then departed again. At that point, the police arrived. P. and Mu. explained what had happened and gave a description of the applicant’s physical appearance. After a few minutes, the police stopped the applicant. Mu. and P. confirmed that it was the same person who had started the fight. The applicant was subsequently brought to a police station.23. In its decision, the Zarichnyy District Court of Sumy stated that the victims’ statements should be accepted as the basis for a conviction, as the statements were logical, consistent and supplemented by other evidence. The court classified the applicant’s behaviour as “disorderly conduct” within the meaning of Article 296 § 3 of the Criminal Code and sentenced the applicant to two years and one month’s imprisonment.24. The applicant, his representative and the prosecutor appealed to the Sumy Regional Court of Appeal. The applicant complained, inter alia, that the Zarichnyy District Court of Sumy had not taken his three-day administrative sentence into consideration when sentencing him to two years and one month’s imprisonment.25. On 10 March 2009 the Sumy Regional Court of Appeal upheld the decision of the first-instance court in so far as it concerned the applicant’s conviction, but reduced the sentence from a term of two years and one month’s imprisonment to a term of two years. The sentence was reduced on the grounds that in its decision of 7 October 2008, the panel of the Sumy Regional Court of Appeal had not made reference to the term of imprisonment and that, notwithstanding any arguments about the leniency of the sentence, the Zarichnyy District Court of Sumy had no right to worsen the applicant’s position by extending the sentence to two years and one month, thus departing from the previous decision at first instance, which had sentenced the applicant to only two years’ imprisonment. The prosecutor, the applicant and his representative all lodged cassation appeals. The applicant complained, inter alia, that he had been tried twice for the same offence.26. On 24 September 2009 the Supreme Court of Ukraine upheld the decision of the appellate court. In response to the applicant’s complaint that he had been tried twice for the same offence, the court explained that the Zarichnyy District Court of Sumy had allowed the prosecutor’s objection seeking the annulment of the decision of 21 June 2007 and had “closed” the administrative-offence case. For that reason, the court concluded that the applicant had not been tried twice for the same offence.RELEVANT LEGAL FRAMEWORK27. Article 61 of the Constitution of 28 June 1996 provides:“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.”28. The Code of Administrative Offences of 7 December 1984 (as in force at the material time) read, in its relevant parts, as follows.Article 9 – Notion of an administrative offence“... Administrative liability for offences set out in this Code shall be triggered if the underlying facts of the offence do not lead to criminal liability.”Article 173 – Minor disorderly acts“Minor disorderly acts, that is, the utterance of obscenities in public places, offensive behaviour towards others and other similar acts that breach public order and the peace shall be punishable by a fine ranging from three to seven times the non‑taxable minimum income of citizens or by one to two months’ correctional work combined with the withholding of twenty per cent 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 appropriate – by up to fifteen days’ administrative detention.”Article 287 – Right to appeal against an administrative-offence decision“A decision in the case of an administrative offence is open to appeal by the person against whom it was issued and by any victims.A ... court decision imposing an administrative sanction shall be final and may not be appealed against ...”Article 290 – Objection against a decision with regard to an administrative-offence case“The prosecutor may lodge an objection [протест] against a decision imposing an administrative sanction.”29. Article 296 of the Criminal Code of Ukraine of 5 April 2001 (as in force at the material time) read as follows:Article 296 – Disorderly acts“1. Disorderly acts such as a serious breach of public order motivated by flagrant disrespect of the community, combined with particular impudence and exceptional cynicism, shall be punishable ... by up to five years’ deprivation of liberty....3. The acts referred to in the first ... paragraph of this Article, if connected to resisting a public official ... [or] other citizens who were attempting to stop the disorderly acts, shall be punishable by imprisonment for a period of between two and five years.”30. Article 6 § 9 of the Code of Criminal Procedure of 28 December 1960 (as in force at the material time) read as follows:Article 6 – Circumstances excluding proceedings in a criminal case“A criminal case shall not be initiated and an opened case shall be closed [if]:...(9)  in relation to the same person and in relation to the same charge there exists a final judgment or a final court resolution or ruling terminating the proceedings on the same ground;...”THE LAWALLEGED VIOLATION OF ARTICLE 4 of Protocol No. 7 to the Convention31. The applicant complained that, having been tried for the criminal offence of “disorderly acts” after previously being tried for the administrative offence of “minor disorderly acts”, for which he had served three days’ detention, he had been tried again for the same offence. He relied on Article 4 of Protocol No. 7 to the Convention, 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.”Admissibility32. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.MeritsThe parties’ arguments(a)   The applicant33. The applicant complained that in the criminal proceedings he had been tried and punished again for the same offence of which he had been convicted in the administrative proceedings.34. The applicant asserted that the underlying facts in both the administrative and the criminal proceedings had been substantially the same, if not identical. In the administrative-offence decision of 21 June 2007, the court had established that on 20 June 2007 at around 10 p.m., near Prokofyeva Street in Sumy, the applicant had been drunk, used abusive language, reacted aggressively to remarks made by police officers and attempted to start a fight. In the resolution on the opening of a criminal case of 16 July 2007, a prosecutor had stated that at the same date and place as indicated above, the applicant, while committing disorderly acts, had inflicted physical injuries on two “police officers”. In its judgment of 29 December 2008, the Zarichnyy District Court of Sumy had established that at the same date, place and time as indicated in the administrative‑offence decision of 21 June 2007, the applicant, while drunk, had met the victim and had breached public order, had grabbed the victim by his gold chain, torn it off and finally inflicted physical injuries on him during the fight. The applicant concluded that all three decisions had concerned the same events, which had happened on Prokofyeva Street in Sumy at around 10 p.m. on 20 June 2007.35. The applicant further submitted that the physical injuries inflicted on Mu. and P. should not have been considered newly discovered circumstances, as those facts had been known to the Zarichnyy District Court of Sumy during the examination of the administrative-offence case. Had the victims considered the offence to be of a criminal nature, they or a prosecutor could have appealed against the administrative-offence decision of 21 June 2007, basing their appeal on an incorrect classification of the offence. Neither of the victims had appealed. The prosecutor had appealed more than seven months after the date of the administrative-offence decision and more than six months after the date of initiation of the criminal case. The applicant further argued that, owing to the delay, that appeal and the quashing of the administrative-offence decision had had no effect, as the applicant had already served his administrative sentence.(b)   The Government36. The Government, relying on a letter from the Zarichnyy District Court of Sumy to the local department of justice of 14 August 2019, submitted that the case file in the administrative-offence proceedings had been destroyed owing to the expiry of the storage period.37. The Government added that the applicant had not been tried and punished twice for the same offence, as the administrative case had been opened in relation to the applicant’s behaviour of being drunk outdoors, using abusive words and reacting aggressively to remarks made by police officers, while the criminal case had dealt with the infliction of physical injuries on third persons and damage to property.38. With reference to paragraph 2 of Article 2 of Protocol No. 7 to the Convention, the Government further argued that the initiation of criminal proceedings against the applicant in fact constituted the reopening of the previous case and had been justified as new facts had been established, while the administrative-offence decision had subsequently been annulled.The Court’s assessment39. The applicable principles are set out in Sergey Zolotukhin v. Russia ([GC], no. 14939/03, §§ 78-84, ECHR 2009); A and B v. Norway ([GC], nos. 24130/11 and 29758/11, §§ 117-34, 15 November 2016); and Mihalache v. Romania ([GC], no. 54012/10, §§ 47-49, 54, 131-33, 8 July 2019).40. Under Article 4 of Protocol No. 7 to the Convention, the Court has to determine whether the administrative proceedings were criminal in nature, whether the offences for which the applicant was prosecuted were the same (idem), whether there was a final decision and whether there was duplication of the proceedings (bis).(a)   Whether the administrative proceedings were criminal in nature41. The Court notes that it has previously found, in Igor Tarasov v. Ukraine (no. 44396/05, § 25, 16 June 2016), that the administrative offence of “minor disorderly acts” under Article 173 of the Administrative Offences Code fell within the ambit of “penal procedure” within the meaning of Article 4 of Protocol No. 7. There is no reason to depart from this conclusion in the present case. This is even more so given that the applicant spent three days in administrative detention.(b)   Whether the offences for which the applicant was prosecuted were the same42. The notion of the “same offence” – the idem element of the ne bis in idem principle in Article 4 of Protocol No. 7 – is to be understood as prohibiting the prosecution or conviction of a second “offence” in so far as it arises from identical facts or facts which are substantially the same (see Sergey Zolotukhin, cited above, § 82). In Sergey Zolotukhin the Court held that 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).43. In the present case, the Court notes that both the administrative and the criminal proceedings dealt with the applicant’s conduct of the same date, time and place, described his behaviour as a breach of public order and the peace, and classified his actions as “minor disorderly acts” (the administrative proceedings) and as “disorderly acts” (the criminal proceedings).44. However, there are differences. The administrative-offence proceedings concerned the applicant’s drunken behaviour, his uttering of obscenities, his aggressive reaction to remarks made by police officers (cursing them in obscene language) and his attempt to start a fight.45. The criminal proceedings likewise concerned the applicant’s drunken behaviour and uttering of obscenities. In addition, they related to the infliction of physical injuries on Mu. and P. and damage to their property.46. The Court notes that these additional elements in the criminal proceedings originated from the same continuous conduct of the applicant that was only partially described in the first conviction, as the administrative-offence proceedings also contained an accusation of attempting to start a fight.47. Finally, had the facts of the administrative and criminal cases been entirely different, there would have been no need to file a prosecutor’s objection to have the decision concerning the administrative offence annulled, and Judge Ma., who had rendered the administrative-offence decision, would not have had to withdraw from hearing the applicant’s criminal case.48. The Court finds, therefore, that the facts giving rise to both of the applicant’s convictions were inextricably linked, and that the domestic courts’ assessment in the criminal proceedings embraced substantially the same facts which had been examined in the administrative-offence proceedings (compare Sergey Zolotukhin, cited above, § 97; Igor Tarasov, cited above, § 30; and Šimkus v. Lithuania, no. 41788/11, § 50, 13 June 2017).(c)   Whether there was a final decision49. It is uncontested that the administrative conviction had become “final” and that the applicant had served his administrative sentence before the criminal proceedings were initiated. That fact was acknowledged by the Government and is reflected in the case-file material.(d)   Whether there was duplication of the proceedings (bis)50. First of all the Court observes that the present case does not concern the issue of “dual proceedings”, given that such parallel proceedings, administrative and criminal, were not envisaged under the national law. On the contrary, Article 9 of the Code of Administrative Offences provided that administrative responsibility was triggered only when the facts in their essence did not lead to criminal responsibility (see paragraph 28 above) (see, conversely, A and B v. Norway, cited above, § 120).51. The Court further notes that the administrative-offence proceedings were terminated on 21 June 2007, when the Zarichnyy District Court of Sumy found the applicant guilty of minor disorderly acts. On 16 July 2007 the criminal proceedings were opened on the grounds that the underlying facts led to criminal responsibility.52. The Government pleaded however that the reopening of the case had been justified by newly discovered facts, that is, the infliction of physical injuries on Mu. and P. and damage to their property.53. It is true that the second paragraph of Article 4 of Protocol No. 7 specifies that a case may be reopened in accordance with the law of the State concerned if there is evidence of new or newly discovered facts (or if it appears that there has been a fundamental defect in the proceedings). It appears however that this condition is not met in the present case.54. As can be seen from the court decisions in the criminal proceedings (see paragraph 22 above), the police stopped the applicant within a couple of minutes of Mu. and P. giving them a description of the applicant’s appearance. Mu. and P. recognised him and the applicant was brought to a police station. Therefore, the police already had knowledge of the fight that had taken place on 20 June 2007 between Mu., P. and the applicant.55. The Court further observes that from 21 June 2007 the prosecutor’s office knew about the infliction of physical injuries (see paragraph 12 above), as it was an assistant prosecutor who directed Mu. and P. to undergo a forensic examination, which on 22 June 2007 established the existence of physical injuries of “minor” gravity. Therefore, no new facts were detected during the additional examination by the prosecutor’s office, as they had already been known to both the police and the prosecutor’s office.56. Furthermore, the Court considers that the annulment of the administrative-offence decision after the opening of a criminal case did not render the latter proceedings compliant with the ne bis in idem principle, as the applicant had already served his three-day administrative detention. It is remarkable that the Supreme Court did not find the criminal proceedings problematic in terms of the ne bis in idem principle.57. In sum, the foregoing considerations enable the Court to conclude that the domestic authorities duplicated criminal proceedings which concerned substantially the same facts. Thus, the applicant was tried and punished twice for the same offence, in breach of the ne bis in idem principle.58.

Outcome for Article P7-4: violation