EIT huolissaan oikeusturvasta Venäjällä. Yli sata valitusta mielenosoittajien rankaisemisesta.

8.10.2019 | Oikeusuutiset

Markku Fredman

Mielenosoituksen yhteydessä kiinniotettu tuomittiin kahdesti samasta teosta. Venäjällä puutteelliset mahdollisuudet muutoksenhakuun ihmisoikeusloukkauksen toteamisen jälkeen.

In today’s Chamber judgment1 in the case of Korneyeva v. Russia (application no. 72051/17) the European Court of Human Rights held, unanimously, that there had been:

  • a violation of Article 5 § 1 (right to liberty and security) of the European Convention on Human Rights,
  • a violation of Article 6 § 1 (right to a trial by an impartial tribunal) of the European Convention on account of the requirement of objective impartiality, and
  • a violation of Article 4 § 1 of Protocol No. 7 (right not to be tried or punished twice) to the Convention.

The case concerned the applicant being convicted of two separate offences originating in the similar circumstances of an unauthorised rally. The Court in particular rejected the Government’s argument that the duplication of the proceedings against the applicant had been justified by the distinct areas covered by two different charges. The Court found there was an overlap of the facts which were at the basis of each prosecution. Taking account of its own case-law and a ruling of the Plenary of the Supreme Court of Russia in
similar circumstances, the Court found that the applicant had been tried and convicted twice for the same offence, in violation of her rights.

In June 2017 Ms Korneyeva was present in a park in St Petersburg where a protest rally was taking place, although she states that she did not take part in the event. The police rounded up the demonstrators, including the applicant, and she was taken under escort to a police station. She was charged under two different Articles of the Code of Administrative Offences (CAO) in relation to the rally. She was released the following day.
Three days later a District Court judge examined two cases against the applicant in turn in separate hearings, one for each Article. She was present at the hearings with her lawyer. In each case the judge refused a defence request for a public prosecutor to be present to support the charges and issued two separate judgments against the applicant. One found her guilty of an offence under Article 19.3 § 1 of the CAO for failure to comply with a lawful police order to cease her participation in an unlawful rally, fining her 500 Russian roubles (RUB) (approximately seven euros (EUR) at the time).
The other found her guilty of an offence under Article 20.2 § 5 for failing to comply with her statutory obligation under the Public Events Act to comply with a police order, in this case to stop taking part in the event, fining her RUB 10,000 (approximately EUR 140) .

Article 46

The Court noted that it had more than 100 applications dealing with issues that were similar to those in Ms Korneyeva’s case. Unlike other procedural codes of the Russian Federation, the CAO did not have a mechanism for reopening or re-examining court decisions which the Court found had led to a violation of the Convention. The Court was not convinced that Article 30.12 of the CAO, normally used for the review of final court decisions issued under that Code, would serve that purpose. Nevertheless, it appeared that the Plenary Supreme Court’s position that cases brought under the two Articles used against Ms Korneyeva should only be prosecuted under one of them, Article 20.2 § 5, was applicable to cases brought before June 2018. No review of Ms Korneyeva’s case had taken place under Article 30.12 of the CAO with reference to the Plenary Supreme Court’s approach so that one of the convictions would be set aside and any persisting consequences eliminated. That being said, as regards cases finally decided domestically prior to June 2018 like the present one, it remained open to the Government to make appropriate use of the available legal avenues which might yield the result mentioned above, namely where it was a conviction under Article 19.3 § 1 of the CAO that had given rise to the ne bis in idem issue.
More generally, it remained for the Government, together with the Council of Europe Committee of Ministers, to consider what measures could be appropriate to facilitate the rapid and effective suppression of a malfunction in the national system of human-rights protection, for instance, by way of further clarifying the scope of the ne bis in idem principle in CAO cases in a manner compatible with the Court’s approach in this case and ensuring its practical application within the applicable domestic remedies.