KHMEL v. RUSSIA - 20383/04 - Chamber Judgment [2013] ECHR 1277 (12 December 2013)

In the case of Khmel v. Russia,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

Mark Villiger, President,
Angelika Nußberger,
Boštjan M. Zupančič,
André Potocki,
Paul Lemmens,
Helena Jäderblom,
Dmitry Dedov, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 12 November 2013,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 20383/04) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Aleksandr Anatolyevich Khmel (“the applicant”), on 18 April 2004.

2. The applicant was represented by Mr N. Stakhovich, a lawyer practising in Murmansk. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights.

3. The applicant complained, in particular, that there had been an unjustified interference with his private life and that he had been convicted of the same offence twice.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1960 and lives in Murmansk. At the material time the applicant was an elected member of the Murmansk regional legislature (the “Murmansk Duma”).

A. The applicant’s apprehension and subsequent events

5. At about 1.30 p.m. on 27 April 2003, some police officers stopped the applicant on suspicion of drunk driving and took him to the Severomorsk police station. At the station the applicant became agitated, verbally abusing police officers, grabbing them by the clothing and hitting them. He was then handcuffed.

6. As the applicant initially refused to give his name, police officers searched his clothing and found an identity card showing him to be a member of the Murmansk Duma. The applicant confirmed that he was a member of the regional legislature. His handcuffs were removed. The chief of the police station, who was away from the station at the time, phoned the duty officer and instructed him to invite the applicant to take an alcohol test and, should he refuse, to prepare a report on his refusal and arrange for his release. The applicant refused to make any statements and continued to behave in an unruly manner, pulling at the officers’ clothing and throwing his shoes at them. The police officers repeatedly asked the applicant to leave the station but he refused to go unless the mayor and the chairman of the Murmansk Duma came to see him.

7. At 2.30 p.m. the police chief arrived and invited everyone into his office. The applicant verbally abused him and the other police officers, claiming that his arrest had been politically motivated. He again refused to take an alcohol test.

8. In connection with the applicant’s “inadequate behaviour”, the police chief decided to record the applicant’s actions on video. To that end, he got in touch with a cameraman from the Murman State television and radio broadcasting company (ГТРК «Мурман») and asked him to come to the station with his camera. A few minutes later the cameraman arrived and started filming in the police chief’s office. The applicant repeated on camera the same allegations he had made earlier against the police and refused to take an alcohol test. The police chief again told him that he was free to leave but the applicant instead sat at the duty officer’s desk, taking out a drawer and throwing its contents onto the floor. Some of the events were captured on camera by the cameraman, who remained at the police station until 4.30 p.m.

9. At 5.30 p.m. a presenter and a cameraman from Northern Fleet television (телевидение Северного Флота) arrived at the station. Upon receiving an official authorisation from the police chief, they started filming the applicant, who was still sitting at the desk dishevelled, without shoes on and with his feet on the table, making calls on his mobile phone. The television crew interviewed the police chief and asked the applicant to make a statement but he declined. They stayed at the station for approximately forty minutes.

10. The applicant’s assistant then arrived and called an ambulance for him. However, when it turned up, the applicant refused to get in it with the doctor to go to the town hospital. The Murmansk regional prosecutor, who arrived at about 7.30 p.m., formally informed the applicant that he was free to go and that he could leave immediately. After the applicant refused to leave and ignored further warnings against him if he did not do so, he was escorted out by two police officers.

11. The following day, Murman included in its news programme extracts from the footage filmed at the police station. The same extracts were broadcast by the Blits, TV-21 and North-West Broadcasting television companies.

12. Following a medical examination on 30 April 2003, the applicant was diagnosed as having sustained minor bodily injuries, including bruises and scratches on his face and body. He requested the Murmansk regional prosecutor to institute criminal proceedings against the police officers for ill-treatment and abuse of power. Having investigated the above events, on 7 May 2003 the prosecutor rejected the applicant’s request. The decision was upheld on 24 May 2004 by the Severomorsk Town Court as well-founded. The applicant did not challenge that judgment before the Regional Court.

13. On 20 May 2003 the regional prosecutor appeared before the Murmansk Duma to deliver the results of the investigation into the applicant’s allegations of ill-treatment. He offered to show the footage filmed at the police station on 27 April 2003. Some members refused to watch the videotape but others agreed to it being shown. They watched the videotape in the private office of one member of parliament.

B. Civil proceedings concerning the broadcasting of the footage

14. On an unspecified date the applicant lodged a civil claim against the Severomorsk police chief, the Murmansk regional prosecutor, the State-owned television company Murman and the Blitz, TV-21 and North-West Broadcasting companies, seeking to have the videotaping and subsequent broadcasts declared unlawful and claiming compensation in respect of non-pecuniary damage as a result of the interference with his private life.

15. On 11 November 2003 the Pervomayskiy District Court of Murmansk rejected the claim. The court found that the broadcasting of the footage could not be attributed to the police chief. The latter confirmed that he had invited the cameraman to the station after the applicant had introduced himself; however, he had not ordered the footage to be broadcast. He also confirmed that the applicant had not realised that he was being filmed as he had been under the influence of alcohol. The court decided that the filming was justified under section 11(15) of the Police Act, as the applicant had refused to produce his identity documents. The court also stated that the footage had not concerned the applicant’s private life but the offences he had committed.

16. The court further found that Murman had acted in compliance with section 38 of the Mass Media Act, which provided for the right of citizens to receive information about the activity of public officials. The court also referred to section 50 of the same Act in so far as it allowed the dissemination of that type of material under special circumstances; however, it found that the film had not been disseminated. During the proceedings the applicant withdrew his claim against North-West Broadcasting, and the court found that Blitz and TV-21 could not be held liable by virtue of section 57(6) of the Mass Media Act as they had simply reproduced the footage broadcast by Murman.

17. The court also found that the regional prosecutor had lawfully reported to the Murmansk Duma members, on 20 May 2003, about the findings of the inquiry into the applicant’s allegations of ill-treatment. In so doing, he did not breach any legal provision, so the plaintiff had no cause of action against him.

18. The applicant appealed against that judgment. He challenged, in particular, the court’s finding that the videotaping had been justified under section 11(15) of the Police Act. The defendants confirmed during the trial that they had obtained the applicant’s identity documents immediately after his arrest and that it would not have been necessary to film him for identification purposes. The applicant also stated that his right to respect for his private life had been violated as the footage had been broadcast without his consent.

19. On 24 March 2004 the Murmansk Regional Court upheld the judgment summarily.

C. Administrative proceedings against the applicant

20. On 27 April 2003 police officers filed with Severomorsk Town Court the administrative offence reports, according to which the applicant had committed offences under Articles 12.26 (“Driver’s refusal to take an alcohol test”), 19.3 (“Persistent refusal to obey lawful police orders”) and 20.1 (“Minor disorderly acts”) of the Code of Administrative Offences.

21. On 14 May 2003 the Town Court found the applicant guilty of the above-mentioned offences and fined him 1,500 Russian roubles (RUB). With respect to the latter charge of minor disorderly acts, the Town Court gave the following description of the offence:

“On 27 April 2003, at about 2 p.m. Mr Khmel, being in a public place – the premises of the Severomorsk police station – in the presence of police officers and other members of the public, uttered obscenities and disregarded repeated demands by the police officers to stop his unlawful behaviour, thereby committing minor disorderly acts...

His behaviour demonstrated an obvious disrespect for people in positions of authority in the performance of their duties, which has been confirmed by the police officers K., S., U., P., G. and M.”

The Town Court made findings of fact on the basis of the written statements by the police officers and other witnesses and the administrative offences reports of 27 April 2003. Its judgment did not mention any video footage.

22. On 27 May 2003 the Murmansk Regional Court upheld the judgment, rejecting an appeal by the applicant on procedural grounds.

D. Criminal proceedings against the applicant

23. As the applicant was a member of the Murmansk Duma, in accordance with a special procedure set out in the Code of Criminal Procedure, on 16 July 2003 the Murmansk regional prosecutor requested the Murmansk Regional Court to determine whether there was any indication that the applicant had committed offences punishable under Article 318 § 1 (threatening violence against a public official) and Article 319 (insulting a public official) of the Criminal Code.

24. On 19 November 2003 the Regional Court concluded that the applicant’s behaviour had contained elements of the above-mentioned offences and allowed criminal proceedings against him to be instituted.

25. In the course of the proceedings the applicant was represented by a lawyer of his own choosing, S. During the five days of the trial S. was ill and the court replaced him with lawyers A. and L. without having obtained the applicant’s consent.

26. On 8 August 2005 the Severomorsk Town Court convicted the applicant of threatening violence against a public official ( Article 318 § 1) and insulting a public official (Article 319). The evidence before the court included the statements by the victims and the witnesses, the footage recorded at the police station on 27 April 2003 and administrative offences reports.

27. The Town Court fined the applicant RUB 7,500 under Article 319 but exempted him from criminal liability under that provision as the charges had become time-barred. Under Article 318 § 1 the applicant was fined RUB 30,000. The relevant parts of the judgment read as follows:

“On 27 April 2003 ... while at the police station, Mr Khmel ... uttered many obscenities to [the police officers] P. and S. ... repeatedly asked to leave the police station, Mr Khmel responded with obscene insults to the duty officer M. ... Mr Khmel kicked the officer T. twice in the stomach, causing him visible pain, then pulled at his epaulette and tore it off. This action was accompanied by obscene insults towards T., undermining his honour and dignity as a person in a position of authority ... Talking to the police chief, K., in his office in the presence of his subordinate officers, Mr Khmel, ... insulted and humiliated him, uttering obscenities which caused damage to his dignity and honour and undermined his authority ... When the road traffic officer G. again requested Mr Khmel to take an alcohol test, Mr Khmel uttered obscenities to him ...”

28. On 29 September 2005 the Murmansk Regional Court upheld the judgment on appeal.

II. RELEVANT DOMESTIC LAW

A. Code of Administrative Offences of the Russian Federation

29. The relevant provisions of the Code of Administrative Offences (in force at the material time) read as follows:

Article 12.26: Driver’s refusal to take an alcohol test

“Refusal by a driver of a lawful demand of a police officer to take an alcohol test shall result in a driving ban of between eighteen months and two years.“

Article 19.3: Persistent refusal to obey lawful police orders

“Failure to obey a lawful order or demand by a police officer... in connection with the performance of their official duties related to maintaining public order and security, or impeding the performance by them of their official duties, shall be punishable by a fine of between five and ten months’ minimum wage or by up to fifteen days’ administrative detention.”

Article 20.1: Minor disorderly acts

“1. A disorderly act, that is to say, a breach of public order in the form of an open disregard for the public accompanied by uttering obscenities in public places, abusively pestering people or destroying or damaging other people’s property, shall be punishable by a fine equivalent to between five and ten months’ minimum wages or by up to fifteen days’ administrative detention.”

B. Criminal Code of the Russian Federation

30. The relevant provisions of the Criminal Code (as in force at the material time) read as follows:

Article 318: Use of violence against a public official

“1. The use of violence not endangering life or health, or a threat to use such violence, against a public official or his or her relatives in connection with the performance of his or her duties shall be punishable by a fine equivalent to between 200 and 500 months’ minimum wages ... or by three to six months’ detention or up to five years’ deprivation of liberty...”

Article 319: Insulting a public official

“Publicly insulting a public official in the performance of his or her duties or in connection with the performance thereof shall be punishable by a fine of between fifty and 100 months’ minimum wages ..., 120 to 180 hours’ mandatory work or six months to a year’s correctional work.”

C. The Police Act (Law no. 1026-I of 18 April 1991)

31. The relevant provisions of the Police Act, in force at the material time, read as follows:

Section 11: Rights of the police

“In the performance of their duties, the police shall have the following rights:

...

(14) to keep legally established registers of persons, legal entities, objects and facts and to use the data from the registers; to use IT systems, video and audio recording, film and photo equipment, as well as other technical devices, for documenting their activities;

(15) to make ... film and video-recordings ... of suspects and accused persons who are under administrative arrest and of those in respect of whom there are grounds to institute administrative proceedings ... if it is impossible to identify them...

(16) to carry out operational and search measures in accordance with federal law...”

D. The Operational-Search Activities Act (Law no. 144-FZ of 12 August 1995)

32. The Act contains an exhaustive list of operational-search measures. It includes, in particular, observation (section 6 § 6) and specifies that the operational-search activities may be carried out with the use of video- and audio-recording (section 6, third paragraph).

33. The operational-search activities may only be carried out, in particular, if there is a pending criminal case (section 7 § 1) or if there are indications of an offence being planned, committed or having been committed but the information is insufficient for an immediate taking of a decision on the institution of criminal proceedings (section 7 § 2 (1)).

34. In its decision no. 86-O of 14 July 1998, the Constitutional Court of the Russian Federation found as follows:

“Section 6 [of the Operational-Search Activities Act] only lists the types of operational-search measures but does not determine the form or conditions in which they should be carried out. Operational-search measures, including observation, may only be carried out... in the circumstances listed in section 7 [of the Act]. It follows, this federal law does not allow [the authorities] to collect, to store, to use or to disseminate information on the private life of the individual who is being investigated unless it is linked to detecting, preventing, curtailing or solving crimes, detecting or identifying perpetrators or other lawful objectives... Moreover, paragraph 4 of part 7 of section 5 [of the Act] prohibits the operational-search bodies and their officials from disseminating the information concerning the private and family life or the dignity and reputation of citizens, which they had obtained as a result of operational-search measures, without the citizens’ consent...”

E. The Mass Media Act (Law no. 2124-I of 27 December 1991)

35. The relevant provisions of the Mass Media Act read as follows:

Section 38: The right to information

“Through mass media, private citizens shall have the right to receive accurate information about the activities of State bodies and organisations, public associations and their officials.”

Section 50: Covert recording

“The dissemination of reports and materials prepared with the use of hidden audio and video-recording, photography and cinematography shall be allowed in the following cases:

(1) if it does not infringe citizen’s constitutional rights and freedoms;

(2) if it is necessary to protect the public interest and if measures have been taken to prevent possible identification of third parties;

(3) if the recording is demonstrably in accordance with a decision of a court of law.”

Section 57: Absolution from responsibility

“The editorial office, editor-in-chief and journalist shall bear no responsibility for the dissemination of information that ... tarnishes the honour and dignity of private citizens ... or infringes the rights and lawful interests of individuals ...:

(6) if this information is the literal reproduction of reports and materials or of extracts thereof disseminated by another mass medium which can be ascertained and called to account for a particular breach of the legislation of the Russian Federation on mass media.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

36. The applicant complained that the unlawful filming of him at the police station and broadcasting of that footage on television had breached his right to respect for his private life guaranteed by Article 8 of the Convention, which reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

A. Admissibility

37. The Court considers 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. Submissions by the parties

38. The Government submitted that a person who had committed offences or crimes should envisage various restrictions on his or her rights, including the right to respect for private life. After the applicant had committed a breach of public order, caused damage to the honour and dignity of the authorities and been escorted to the police station, his private life had been brought into the public domain. The video-recording had been made openly, the applicant had been aware that he was being filmed for television and had not objected to it. In fact, he had asked for the media to be brought to the police station. The Government further claimed that the applicant had been filmed in accordance with the law, with a view to securing evidence of his unlawful behaviour and establishing his identity as an offender. The Murman television company had acted lawfully, because under the relevant legislation it was permitted to seek and obtain information on any subject and to broadcast reliable information about the behaviour of a State official. The TV-21 and Blits television companies had merely rebroadcast the footage filmed by Murman. The Government contended that neither the sending of the videotape by the police chief to the public prosecutor’s office nor its circulation for screening to the members of the regional Duma had amounted to “dissemination of information”.

39. The applicant pointed out that, prior to his conviction in administrative and criminal proceedings (on 27 May 2003 and 29 September 2005 respectively), he should have been presumed innocent at the time the video-recording had been made and broadcast. He had not agreed to being filmed and the cameraman had given evidence in the civil proceedings that, at the request of the police chief, part of the footage had been filmed covertly. The applicant emphasised that the broadcasting of the footage had not been in the public interest but had solely been intended to tarnish his reputation. It could not have been necessary for the purposes of identifying him because his identity had already been established by the time the cameraman had arrived. Moreover, the police officers had not used their own equipment to film him and had instead invited a television cameraman who had happened to be a friend of the police chief.

2. The Court’s assessment

(a) Existence of an interference

40. The Court reiterates that the concept of private life extends to aspects relating to personal identity, such as a person’s name or image. A person’s image constitutes one of the chief attributes of his or her personality, as it reveals the person’s unique characteristics and distinguishes the person from his or her peers. The right to the protection of one’s image is thus one of the essential components of personal development. It mainly presupposes the individual’s right to control the use of that image including the right to refuse publication thereof (see Küchl v. Austria, no. 51151/06, § 58, 4 December 2012; Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, §§ 95-96, ECHR 2012; Eerikäinen and Others v. Finland, no. 3514/02, § 61, 10 February 2009; Khuzhin and Others v. Russia, no. 13470/02, § 115, 23 October 2008; Gurgenidze v. Georgia, no. 71678/01, § 55, 17 October 2006; Sciacca v. Italy, no. 50774/99, § 29, ECHR 2005‑I, and Von Hannover v. Germany, no. 59320/00, §§ 50-53, ECHR 2004‑VI).

41. The Court has held on various occasions that the recording of video in the law-enforcement context or the release of the applicants’ photographs by police authorities to the media disclosed an interference with their right to respect for private life. In the above-mentioned Khuzhin and Sciacca cases, the police made the applicants’ photographs from the official file available to the press without their consent. In Peck v. the United Kingdom (no. 44647/98, §§ 62-63, ECHR 2003‑I), the disclosure to the media for broadcast use of video footage of the applicant whose suicide attempt was caught on surveillance television cameras was found to be a serious interference with the applicant’s private life, notwithstanding that he was in a public place at the time. In a case where the police regulated the security camera in the custody suite of a police station so that it could take clear footage of the applicant and later showed the video to witnesses and during the trial in a public court room, the Court noted that the ploy adopted by the police went beyond the normal or expected use of this type of camera and the recording of such footage amounted to the processing or collecting of personal data about the applicant. Noting that the footage had not been obtained voluntarily or in circumstances where it could be reasonably anticipated that it would be made, the Court considered that the recording and use of the video disclosed an interference with the applicant’s right to respect for private life (see Perry v. the United Kingdom, no. 63737/00, §§ 39-43, ECHR 2003‑IX).

42. In the instant case, the applicant was recorded on video while he was at the Severomorsk police station and part of that footage was broadcast on regional television the following day. The Court observes that the applicant consistently denied – in the proceedings before the domestic courts and before the Court – that he had agreed to being filmed. The Government were unable to produce any evidence of the applicant’s consent either to being recorded on video – especially given that the recording was partly carried out covertly – or to having the footage broadcast on television.

43. The parties did not dispute that the cameraman from Murman and subsequently the crew of Northern Fleet had arrived at the police station upon the invitation of the police chief with the purpose of capturing the applicant’s behaviour on camera. In their submissions, the Government indicated that the police chief had given the media an “official authorisation” to film the applicant. He did not impose any conditions on how the footage would subsequently be used. It follows that a State official had borne direct responsibility for granting the media access to the applicant’s image and enabling them to retain the footage and use it for their own purposes, including broadcasting it on public television.

44. In these circumstances and in the light of its above-cited case-law (see, in particular, the Peck and Perry judgments), the Court finds that the decision of the police chief to invite the television crews and to allow them to record the applicant’s image inside the police station and to take the tapes with them, without any restriction on their subsequent use, amounted to an interference with the applicant’s right to respect for private life which was attributable to the State. Whether that interference could be considered justified in the particular circumstances of the case will be the subject of its analysis below.

(b) Justification for the interference

45. The Court reiterates that, in order to be justified under Article 8 of the Convention, an interference with the applicant’s right to respect for private life must be “in accordance with the law”, pursue one or more of the legitimate aims contemplated in paragraph 2 of this Article and be “necessary in a democratic society”.

46. The first requirement of paragraph 2 of Article 8 is that the interference should be “in accordance with the law”. On the facts, the Court notes that the police detained the applicant and brought him to the station on suspicion that he had attempted to drive a car under the influence of alcohol. The applicant could have dispelled the suspicion by taking an alcohol test but he vehemently refused to do so. Instead of showing goodwill and co-operating with the police, he turned disorderly and violent against the officers, abusing them verbally, pulling at their uniforms, disrupting the work of the station and wreaking havoc on the equipment. The Court nevertheless emphasises that, no matter how unacceptable or provocative the applicant’s behaviour was, the police officers should have firmly stood guard as custodians of the law and their actions required a solid legal basis.

47. The Russian courts in the civil proceedings and the Government in their observations before the Court cited section 11(15) of the Police Act as a justification for the police chief’s decision to invite television cameras and to have the applicant recorded on video. Section 11(15) of the Police Act granted the police the right to take fingerprints or to film individuals if it was impossible to identify them (see paragraph 31 above). The Court fails to see how that provision could be applicable in the instant case, where the applicant’s identity had been established shortly after he had arrived at the police station, when an officer had searched his clothing and found his professional identity card and the applicant had confirmed his name and occupation (see paragraph 6 above). For the first time in the proceedings before the Court the Government also invoked section 11 (14) of the Police Act concerning the police’s power to keep various legally established registers. Their submissions were, however, confined to quoting the text of this provision, without explaining to what extent it could be relevant in the circumstances of the present case which did not concern the recording of the applicant’s image for the purposes of any such register.

48. The Government also claimed that the recording was intended to secure evidence of the applicant’s unlawful behaviour. The Court notes, on the facts, that at the time the applicant was filmed, he had neither been formally detained nor charged with any offence, administrative or otherwise, and that no proceedings had been initiated against him. The Government did not cite any provision of Russian law which would have allowed the police to collect evidence prior to the institution of any kind of proceedings and in the absence of any procedural decision to that effect. As matters transpired, the video-recording was not included in evidence in the administrative proceedings and was not mentioned in the judgment (see paragraph 21 above). It is nevertheless not inconceivable that the filming was performed in accordance with the Operational-Search Activities Act which allowed the police to carry out “observation” of individuals who were suspected of being in the process of committing criminal offences, using audio and video equipment (see paragraphs 32 and 33 above). This could be legally done, even if a decision on the institution of criminal proceedings were to be taken at a later stage rather than immediately (ibid.)

49. In any event, the interference in this case was not limited to the recording of the applicant’s image, but also included making the footage available to the media, without restricting its subsequent use. Assuming that the footage was obtained in the framework of the operational-search activities, the same Operational-Search Activities Act expressly prohibited police officers from disseminating such information without the consent of the individual concerned. The Russian Constitutional Court reinforced that prohibition by pointing out that the information may only be used for the purposes of law enforcement, such as crime detection or prevention or identification of perpetrators (see paragraph 34 above). It follows that, in the absence of the applicant’s consent, the release of the video recording to the regional television was in flagrant breach of the domestic law.

50. Finally, as regards the Government’s reliance on the Media Act, the Court reiterates that in the present case it is not concerned with the lawfulness of the actions of television companies but with the legal basis for the actions of the police which was conspicuously lacking.

51. The Court reiterates that, where it has been shown that an interference was not in accordance with the law, it is not necessary to investigate whether the interference pursued a “legitimate aim” or was “necessary in a democratic society” (see Giorgi Nikolaishvili v. Georgia, no. 37048/04, § 129, 13 January 2009; Sciacca, cited above, § 30, and Dobrev v. Bulgaria, no. 55389/00, § 165, 10 August 2006).

52. There has therefore been a violation of Article 8 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7

53. The applicant complained under Article 7 of the Convention that his conviction, first in administrative proceedings and later in criminal proceedings, amounted to double jeopardy. The Court considers that this complaint falls to be examined from the standpoint of Article 4 of Protocol No. 7 to the Convention which provides, in the relevant part, 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...”

A. Admissibility

54. The Court considers 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. Submissions by the parties

55. The Government evaluated the facts of the case and concluded that the applicant had been found criminally liable in respect of acts that had been committed in a different place and time from those that had formed the basis of his administrative conviction. In addition, those offences had been different in terms of how dangerous to the public they were. The Government maintained that there had been no violation of Article 4 of Protocol No. 7.

56. The applicant argued that the time period during which the offences defined in Article 19.3 and 20.1 of the Code of Administrative Offences and Article 318 and 319 of the Criminal Code had been committed was the same, and that it had lasted from the moment he had arrived at the police station (2 p.m.) until his departure at 7.30 p.m. Furthermore, it appeared from the domestic judgments that both the administrative and criminal offences had targeted the same police officers T., U., K., S., M. and others who had been granted victim status in the criminal proceedings. Finally, the actus reus of the above offences largely overlapped and the criminal offences did not contain any elements that had not been previously examined in the administrative proceedings. The applicant emphasised that the judge who had examined the administrative charges against him had had legal grounds to discontinue those proceedings and to refer the matter to a public prosecutor if she had considered that there were indications of a criminal offence; however, she had not chosen to do so which meant, by converse implication, that the applicant’s acts had not amounted to a criminal offence. Her determination of the case was therefore binding on the other public authorities.

2. The Court’s assessment

57. The applicant alleged a violation of the non bis in idem principle, that is to say the guarantee against the duplication of proceedings in connection with the same offence. The Court notes that the events of 27 April 2003 gave rise to two separate sets of proceedings against the applicant: in the first round of proceedings he was found guilty under the Code of Administrative Offences and ordered to pay a fine, and in the second set of proceedings he was found guilty under the Criminal Code and ordered to pay a larger fine. The Court accordingly has to examine three issues: whether the first proceedings were criminal in nature; whether the offences for which the applicant was prosecuted were the same (idem), and whether there was a duplication of proceedings (bis).

(a) Whether the first proceedings were criminal in nature

58. By the Town Court’s judgment of 14 May 2003, as upheld on appeal by the Regional Court on 27 May 2003, the applicant was found guilty of offences which were classified as “administrative” under domestic law. The Court reiterates that the legal characterisation of the procedure under national law cannot be the sole criterion of relevance for the applicability of the principle of non bis in idem for the purposes of Article 4 § 1 of Protocol No. 7. Otherwise, the application of that 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” within the meaning 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 Sergey Zolotukhin v. Russia [GC], no. 14939/03, § 52, ECHR 2009, with further references).

59. The Court’s established case-law sets out three criteria, commonly known as the “Engel criteria” (see Engel and Others v. the Netherlands, 8 June 1976, § 85, Series A no. 22), to be considered in determining whether or not there was a “criminal charge”. The first criterion is the legal classification of the offence under national law, the second is the very nature of the offence and the third is the degree of severity of the penalty that the person concerned risks incurring. The second and third criteria are alternative and not necessarily cumulative. That, however, does not preclude a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge (see Sergey Zolotukhin, cited above, § 53, with further references).

60. As regards the classification of the offences under domestic law, the Court notes that under Articles 12.26, 19.3 and 20.1 of the Code of Administrative Offences, they were all characterised as “administrative” ones. As indicated above, however, the classification under domestic law is not decisive. The Court indeed recalls that the sphere defined in the Russian legal system as “administrative” embraces certain offences that have a criminal connotation but are too trivial to be governed by criminal law and procedure (ibid., § 54, with further references).

61. With respect to the nature of the offences, the Court notes that the applicant was found guilty of three administrative offences: refusing to take an alcohol test, persistently refusing to obey lawful police orders and committing minor disorderly acts. However, since there was no allegation of a repetition of proceedings in respect of the first offence, the Court will focus its examination on the second and third offences. The aim of those two offences was to guarantee the protection of human dignity and public order, that is to say, the values and interests which normally fall within the sphere of protection of criminal law (compare with Sergey Zolotukhin, cited above, § 55, and Kadubec v. Slovakia, 2 September 1998, § 52, Reports of Judgments and Decisions 1998‑VI). The Court reiterates that the reference to the “minor” nature of the acts did not, in itself, preclude their classification as “criminal” in the autonomous sense of the Convention, as there is nothing in the Convention to suggest that the criminal nature of an offence, within the meaning of the Engel criteria, necessarily requires a certain degree of seriousness (see Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98, § 104, ECHR 2003‑X).

62. The Court further recalls that the degree of severity of the measure is determined by reference to the maximum potential penalty for which the relevant law provides (see Sergey Zolotukhin, cited above, § 56). The Code of Administrative Offences provided for fifteen days’ imprisonment as the maximum penalty in respect of those two offences. That the applicant was eventually ordered to pay a fine does not diminish the importance of the fact that his liberty was initially at stake (see Ezeh, cited above, § 120).

63. In conclusion, the general character of the offences of “persistent refusal to obey lawful police orders” and “minor disorderly acts”, together with the severity of the potential penalty, were sufficient to bring the applicant’s conviction for those offences within the ambit of “penal procedure” for the purposes of Article 4 of Protocol No. 7.

(b) Whether the offences for which the applicant was prosecuted were the same (idem)

64. The Court will next examine whether the applicant was prosecuted for the same offences. The applicable test has recently been clarified in the Sergey Zolotukhin judgment (cited above, §§ 78-84). The Court held that it must disregard the legal characterisation of the offences in domestic law and take the underlying factual circumstances as its focal point of comparison.

65. In the present case, the facts that gave rise to the administrative fine imposed on the applicant related to his unruly behaviour at the Severomorsk police station on 27 April 2003. The judgment of 14 May 2003 stated that he had uttered obscenities and been disrespectful to the police officers K., S., U., P., G. and M. The same facts formed the central element of the criminal charges against the applicant and the judgment of 8 August 2005 referred to the same behaviour (“uttered obscenities”, “caused damage to his dignity and undermined his authority”) that had taken place on the same day at the same police station, with the same police officers having been recognised as victims and cross-examined during the trial. The criminal charges therefore encompassed the facts of the administrative offence in its entirety and, conversely, the administrative offence did not contain any elements that were not present in the criminal offences with which the applicant was charged. The facts of the two offences must therefore be regarded as substantially the same for the purposes of Article 4 of Protocol No. 7.

66. 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 that provision if it has acquired the force of res judicata. This is the case when the decision 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).

67. In the instant case the Town Court’s decision on the administrative offences was upheld on appeal and became “final” on 27 May 2003, two months before the regional prosecutor requested the Regional Court to authorise the institution of criminal proceedings against the applicant.

68. Since Article 4 of Protocol No. 7 applies even where an individual has merely been prosecuted in proceedings which have not resulted in a conviction (see Sergey Zolotukhin, cited above, § 110, with further references), the fact that the recovery of the fine imposed under Article 319 of the Criminal Code became time-barred has no bearing on the applicant’s allegation that he was prosecuted, tried and convicted of that charge for a second time. Accordingly, the Court considers that there was a duplication of proceedings.

(d) Conclusion

69. The Court has found that the applicant was convicted of “persistent refusal to obey police orders” and “minor disorderly acts” in administrative proceedings which are to be assimilated to “penal procedure” within the autonomous Convention meaning of that term. After his conviction had become final, criminal charges relating to the same set of factual circumstances were brought against him and he was convicted again in the proceedings that followed.

70. There has accordingly been a violation of Article 4 of Protocol No. 7.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

71. The applicant also complained under Articles 3 and 5 of the Convention that he had been unlawfully arrested and ill-treated at the police station on 27 April 2003. Since his application was only lodged on 18 April 2004, that is to say almost a year later, this part of the application is obviously out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

72. Lastly, the applicant complained under Articles 6 and 13 of the Convention of certain procedural irregularities in the criminal proceedings against him. The Court has examined those complaints as submitted by the applicant. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

73. 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

74. The applicant claimed 115,000 Russian roubles (RUB) – the equivalent of 2,580 euros (EUR) on the date of the submission of his claims – in respect of pecuniary damage, which comprised the legal fees paid to his defence team in the criminal proceedings and the fine of RUB 30,000. He further claimed RUB 250,000 (EUR 5,610) in respect of non-pecuniary damage.

75. The Government submitted that they were under no obligation to reimburse the fine because it had been lawfully imposed on the applicant. They considered that the amount of non-pecuniary damage was unreasonable.

76. The Court considers that the applicant incurred both pecuniary and non-pecuniary damage in connection with the duplication of proceedings against him and the broadcasting of the footage filmed at the police station. Accordingly, it awards him an aggregate amount of EUR 5,000 in respect of pecuniary and non-pecuniary damage, plus any tax that may be chargeable.

B. Costs and expenses

77. The applicant also claimed EUR 450 for costs and expenses incurred before the Court.

78. The Government did not comment on this part of the claims.

79. 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, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 450 for the proceedings before it, plus any tax that may be chargeable to the applicant.

C. Default interest

80. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT

1. Declares unanimously the complaints concerning an alleged violation of the applicant’s right to respect for his private life and an alleged violation of the non bis in idem principle admissible and the remainder of the application inadmissible;

2. Holds by six votes to one that there has been a violation of Article 8 of the Convention;

3. Holds unanimously that there has been a violation of Article 4 of Protocol No. 7;

4. Holds by six votes to one

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of pecuniary and non-pecuniary damage;

(ii) EUR 450 (four hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses unanimously the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 12 December 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Mark Villiger
Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Dmitry Dedov is annexed to this judgment.

M.V.
C.W.

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You are here: BAILII >> Databases >> European Court of Human Rights >> KHMEL v. RUSSIA - 20383/04 - Chamber Judgment [2013] ECHR 1277 (12 December 2013) URL: http://www.bailii.org/eu/cases/ECHR/2013/1277.html Cite as: [2013] ECHR 1277