CHERNOV v. UKRAINE

 
 
 
Communicated on 29 April 2019
 
FIFTH SECTION
Application no. 16432/10
Oleksandr Gennadiyovych CHERNOV
against Ukraine
lodged on 13 March 2010
STATEMENT OF FACTS
The applicant, Mr Oleksandr Gennadiyovych Chernov, is a Ukrainian national, who was born in 1965 and lives in Sumy.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1.  Administrative proceedings against the applicant
On 20 June 2007 the applicant was arrested for an administrative offence.
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 P. 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 offended human dignity and morals. The court found the applicant guilty of “minor disorderly acts”, an offence under Article 173 of the Code on Administrative Offences and sentenced him to three days’ administrative detention.
This decision became final and could not be appealed against.
The applicant served his sentence from 21 June to 23 June 2007.
On 28 January 2008 the prosecutor lodged a protest against the above decision on the basis that additional investigation into the facts had revealed that they had the features of the criminal offence of “disorderly acts” within the meaning of Article 296 of the Criminal Code, and that accordingly a criminal case had been opened against the applicant, who had been indicted under Article 296 § 3 of the Criminal Code. The prosecutor referred to Article 9 of the Code of Administrative Offences, which provided that administrative responsibility must be triggered only when in substance the facts did not give rise to criminal responsibility.
On 6 February 2008 the Zarichnyy District Court of Sumy quashed its decision of 21 June 2007.
The applicant appealed against that decision to the Sumy Regional Court of Appeal.
On 25 February 2008 the Sumy Regional Court of Appeal upheld the decision of the Zarichnyy District Court of Sumy of 6 February 2008.
2.  Criminal proceedings against the applicant
On 16 July 2007 a criminal case was opened against the applicant on suspicion of having committed the above-mentioned criminal offence of disorderly acts within the meaning of Article 296 of the Criminal Code on 20 June 2007.
On 29 January 2008 the applicant was indicted for disorderly acts under Article 296 § 3 of the Criminal Code.
On 14 July 2008 the Zarichnyy District Court of Sumy convicted the applicant of disorderly acts under Article 296 § 3 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.
On 7 October 2008 the Sumy Regional Court of Appeal quashed the verdict for inconsistencies between the facts of the case and the court’s conclusion, as the first-instance court had specified 5 p.m. as the time of the offence, whereas the resolution to open the criminal case and the victims had referred to 10 p.m., it had not described the “disorderly acts” in the way they were defined in the relevant provision of the law (не виклав диспозицію цього закону), and on the ground that the sentence was too lenient. It remitted the case for fresh examination.
On 29 October 2008 Judge M. 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.
On 29 December 2008 the Zarichnyy District Court of Sumy established that on 20 June 2007 at around 10 p.m. the applicant, who was drunk and on P. Street in Sumy, came across M. and for no reason pulled on his gold neck chain and damaged it. The applicant, uttering obscenities, started beating M., kicking and punching his head and other parts of his body, inflicting minor bodily injuries on him. The applicant then left. However, when M. went to call the police, the applicant came back over to him, took his phone and threw it on the road. A third party, P., attempted to stop another fight and pulled back the applicant, who, while resisting, damaged her t‑shirt and punched her in the face, causing minor bodily injuries and damaging her glasses. The applicant’s actions lasted between ten and fifteen minutes and were stopped by the common efforts of M. and P., after which police officers arrived.
The court qualified this behaviour as “disorderly conduct” within the meaning of Article 296 § 3 and sentenced the applicant to two years and one month’s imprisonment.
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.
On 10 March 2009 the Sumy Regional Court of Appeal upheld the decision of the first-instance court as far as it concerned the applicant’s guilt but reduced the sentence from a term of two years and one month’s imprisonment to a term of two years, 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 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 from the previous first-instance decision which had sentenced the applicant to only two years’ imprisonment, notwithstanding any arguments about the leniency of the sentence. The prosecutor, the applicant and his representative all lodged cassation appeals. The applicant complained, among other complaints, that he had been tried twice for the same offence.
On 24 September 2009 the Supreme Court of Ukraine upheld the decision of the appellate court. In response to the applicants’ 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 protest seeking to quash the decision of 21 June 2007 and had “closed” the administrative-offence case. The court concluded that for that reason the applicant had not been tried twice for the same offence.
B.  Relevant domestic law
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.”
The Code on Administrative Offences of 7 December 1984 (in force at the material time) read as follows:
Article 9. Notion of 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 withholding 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 296 of the Criminal Code of Ukraine of 5 April 2001 (in force at the material time) read as follows:
Article 296. Disorderly acts
“1. Disorderly acts, that is, 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 stopping the disorderly acts, shall be punishable by imprisonment for a period of between two and five years.”
COMPLAINT
The applicant complains under Article 4 of Protocol No. 7 to the Convention that he was tried twice for the same offence.
QUESTION TO THE PARTIES
Has the applicant been tried and punished again for an offence for which he had already been finally convicted, as prohibited by Article 4 § 1 of Protocol No. 7 to the Convention?

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