Zolotukhin v Russia

(No. 14939/03)

Facts

On 4 January 2002, the applicant was taken to police station Voronezh-45 in order to establish how he had managed to take his girlfriend into a restricted military compound (Voronezh is large city in southwest Russia). At the police station he was verbally abusive towards the personnel and was taken to the office of Major K. who drafted a report on this administrative offence. The applicant was then brought before a judge who sentenced him to three days’ detention for committing minor disorderly acts under Art. 158 of the Code of Administrative Offences then in force.

On 23 January 2002, criminal proceedings were brought against the applicant on suspicion of his having committed, on 4 January 2002, a number of crimes at the police station, including ‘disorderly acts’ – a crime under Art. 213 § 2(b) of the Criminal Code. He was acquitted of this charge by a judgment of the Gribanovskiy District Court of 2 December 2002 which found that the prosecution failed to substantiate its case, but he was convicted on other counts. The judgment became final on appeal.

Before the ECtHR the applicant maintained that the two offences in the two sets of proceedings had the ‘same essential elements’ as required by the ECtHR’s case-law (e.g., Franz Fischer v Austria (No. 37950/97), 29/5/01).

Judgment

In deciding the case the Grand Chamber reviewed the ECtHR’s case-law on what constitutes ‘the same offence’ (idem) and had regard to the definition of ‘non bis in idem’ in other international and national instruments, including the ICCPR, EU law, the Inter-American Convention, the US Constitution, and judicial decisions applying these. It then adopted a new test of ‘idem’ which focused “on those facts which constitute a set of concrete factual circumstances involving the same defendant and inextricably linked together in time and space, the existence of which must be demonstrated in order to secure a conviction or institute criminal proceedings” (para. 84).

The Grand Chamber found that the applicant was prosecuted in criminal proceedings for the same facts as in the first set of ‘administrative’ proceedings (which were found to be criminal in nature). It then considered whether the applicant’s acquittal in the second set of proceedings remedied the violation or deprived the applicant of the victim status (bis), and replied in the negative. A violation of Art. 4 of Protocol 7 was thus established.

Zolotukhin_admiss

Zolotukhin_judgment

A webcase of the Grand Chamber hearing, held on 26 March 2008, can be viewed at: http://www.echr.coe.int/ECHR/EN/Header/Press/Multimedia/Webcasts+of+public+hearings/webcastEN_media?&p_url=20080326-1/en/

Zolotukhin GC_judgment

The above admissibility decision and judgments are taken from the website of the European Court of Human Rights http://www.echr.coe.int/ and can be accessed via HUDOC on the court's website: http://cmiskp.echr.coe.int/tkp197/default.htm

The Court's case-law is also collated in Reports of Judgments and Decisions, published by Carl Heymanns Verlag KG.