FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 14939/03 
by Sergey ZOLOTUKHIN 
against Russia

The European Court of Human Rights (First Section), sitting on 8 September 2005 as a Chamber composed of:

Mr C.L. Rozakis, President
 Mr P. Lorenzen
 Mrs S. Botoucharova
 Mr A. Kovler
 Mr K. Hajiyev
 Mr D. Spielmann, 
 Mr S.E. Jebens, judges
and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged on 22 April 2003,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Sergey Aleksandrovich Zolotukhin, is a Russian national who was born in 1966 and lives in Voronezh. He is represented before the Court by Ms R. Zolotukhina, his mother, and Mr K. Koroteyev, a lawyer with the European Human Rights Advocacy Centre (EHRAC) in Moscow. The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1.  Administrative proceedings against the applicant

On 4 January 2002 the applicant was arrested for having brought his girlfriend into the military compound without authorisation. At 9.45 a.m. he was taken to police station no. 9 of the Department of the Interior of the Leninskiy district of Voronezh-45 (the “police station”).

According to reports by Captain S. and Lieutenant-Colonel N., the applicant was drunk, behaved insolently, and cursed police officers in obscene language. He defied rebukes and warnings. After he attempted to escape, the officers handcuffed him.

Major K., the chief of the police station, drew up a report on administrative offences, noting that the applicant had committed offences under Articles 158 (“Minor disorderly acts”) and 165 (“Persistent disobedience to lawful police orders”) of the RSFSR Code on Administrative Offences. The report was then submitted to the court.

On the same day the Gribanovskiy District Court found the applicant guilty of an offence under Article 158 of the Code on Administrative Offences and sentenced him to three days’ administrative detention. The judgment was not amenable to an appeal and had immediate effect.

2.  Criminal proceedings against the applicant

(a)  Pre-trial investigation

On 23 January 2002 criminal case no. 81 was opened against the applicant on suspicion of his having committed disorderly acts, an offence under Article 213 § 2 (b) of the Criminal Code, on 4 January 2002 at the police station. The investigation was assigned to Major V.

On 24 January 2002 Major K. ordered the applicant’s detention on remand for “disorderly acts, including resistance to a public official who was putting an end to a breach of public order”.

On 1 February 2002 two further cases (nos. 82 and 83) were opened against the applicant. In case no. 82 he was suspected of a violent sexual assault against minors. In case no. 83 the applicant was charged with theft of a tape recorder.

On 6 February 2002 all three cases were joined under no. 81 and assigned to Major V.

On 26 February 2002 the joined case-file was transferred to an investigator with the Voronezh town prosecutor’s office.

On 5 April 2002 the applicant was formally indicted on all the above counts. His actions on 4 January 2002 were additionally characterised as threat to use violence against a public official (Article 318 § 1 of the Criminal Code) and insult of a public official (Article 319).

(b)  Judicial proceedings

On 2 December 2002 the Gribanovskiy District Court delivered the judgment. It found the applicant guilty of aggravated rape of minors, relying on statements by two victims, the victims’ mother (the victims were sisters), the applicant’s wife and his girlfriend, as well as on the results of a forensic examination of the victims.

The court acquitted the applicant of the offence under Article 213 § 2 for the following reasons:

“In the morning of 4 January 2002 in... police station no. 9 [the applicant], in an inebriated state, swore obscenely at... Ms Y. and Mr S., threatening the latter with physical execution. He defied a lawful demand by Captain S.... behaved aggressively, pushed S. away and attempted to leave. Having examined the evidence produced at the trial, the court considers that [the applicant’s] guilt has not been established. On 4 January 2002 [the applicant] had been subjected to three days’ administrative detention for the same actions [characterised] under Articles 158 and 165 of the Code on Administrative Offences. The judicial decision was not appealed against and not quashed. The court considers that there is no indication of a criminal offence under Article 213 § 2 (c) in the defendant’s actions and acquits him of this charge.”

The court further found the applicant guilty of an insult of a State official under Article 319 of the Criminal Code. It established that the applicant had sworn obscenely at Major K. and threatened him while the latter had been drafting, in his office at the police station, the report on the administrative offence under Articles 158 and 165. Major K.’s statements to that effect were corroborated with depositions by Captain S., Lieutenant-Colonel N. and Ms Y. who had been also present in K.’s office.

Finally, the court pronounced the applicant guilty of a threat to use violence against a public official under Article 318 § 1 of the Criminal Code. On the basis of the statements by Major K., Lieutenant-Colonel N. and the applicant’s girlfriend it found that, after the report on the administrative offence had been finalised, the applicant and his girlfriend had been taken by a car to the Gribanovskiy district police station. In the car the applicant had continued to swear obscenely at Major K. He had also spat at him and claimed that, once released, he would kill him and abscond. Major K. had perceived the threat as a real one because the applicant had had a history of rancorous and violent behaviour.

The applicant was sentenced to five years and six months’ imprisonment in a correctional colony and mandatory treatment for alcohol addiction.

On 15 April 2003 the Criminal Section of the Voronezh Regional Court upheld the conviction on the applicant’s appeal.

On 26 May, 5 August, 14 October and 3 November 2003 the Voronezh Regional Court refused the applicant’s requests to open supervisory-review proceedings.

3.  Civil proceedings concerning the applicant’s parental rights

On an unspecified date the mother of the applicant’s wife brought a civil action against the applicant, claiming that he should be stripped of his parental authority in respect of his seven-year-old son and three-year-old daughter. She submitted that the applicant had ill-treated them, neglected their upbringing, behaved in breach of ethical norms and abused alcohol.

The applicant – questioned by the detention facility administration under a letter rogatory – denied the allegations.

On 27 October 2003 the Gribanovskiy District Court of the Voronezh Region, in presence of the applicant’s mother as his representative, terminated the applicant’s parental rights in respect of his children and adjudicated him to pay alimony to his mother-in-law.

On 23 December 2003 the Civil Section of the Voronezh Regional Court quashed the judgment of 27 October 2003 on substantive and procedural grounds and remitted the matter for a new examination.

It appears that the proceedings are now pending.

B.  Relevant domestic law

The relevant provisions of the RSFSR Code on Administrative Offences of 20 June 1984 (in force at the material time) read as follows:

Article 158.  Minor disorderly acts

“Minor disorderly acts, that is utterance of obscenities in public places, abusive solicitation and other similar acts that breach the public order and peace, - shall be punishable with a fine of 10 to 15 minimum wages or with one to two months’ correctional works compounded with withholding of 20 percent of wages, or – if, under the circumstances of the case and having regard to the offender’s character, these measures are not deemed to be adequate – with up to fifteen days’ administrative detention.”

Article 165. Persistent disobedience to a lawful order or request of a police officer...

“Persistent disobedience to a lawful order or request of a police officer... shall be punishable with a fine of 10 to 15 minimum wages... or with one to two months’ correctional works compounded with withholding of 20 percent of wages, or – if, under the circumstances of the case and having regard to the offender’s character, these measures are not deemed to be adequate – with up to fifteen days’ administrative detention.”

The relevant provisions of the Criminal Code of the Russian Federation (in the then effective edition) read as follows:

Article 213. Disorderly acts

“1.  Disorderly acts, that is a serious breach of the public order, a flagrant display of disrespect to the community, connected with the use of violence towards individuals or a threat to use violence or destruction or damaging of property of others, - shall be punishable... with up to two years’ deprivation of liberty.

2.  The same acts, if committed:

...

(b)  [“(б)” in the original] while resisting a public official or another person who was fulfilling his or her duty to maintain the public order or who was putting an end to a breach of the public order;

(c)  [“(в)” in the original] by a person having a previous conviction of disorderly acts, –

– shall be punishable with mandatory works for 180 to 240 hours or with one to two years’ correctional works or with up to five years’ deprivation of liberty.”

Article 318. Use of violence against a public official

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

Article 319. Insult of a public official

“Public insult of a public official while he or she was performing his or her duties or in connection with the performance thereof shall be punishable with a fine of 50 to 100 minimum wages... or mandatory works for 120 to 180 hours or with six months’ to one year’s correctional works.”

COMPLAINTS

1.  The applicant complained under Article 3 of the Convention that on the day of his arrest (24 January 2002) he was verbally abused and humiliated by police officers in detention facility no. 36/2 of Borisoglebsk.

2.  The applicant complained under Article 5 of the Convention that from 19 October to 2 December 2002 his detention was unlawful because it was not covered by a detention order.

3.  The applicant complained under Article 6 § 3 (d) of the Convention about the trial court’s refusal to obtain the attendance and examination of witnesses who could have confirmed his alibi.

4.  The applicant complained under Article 13 of the Convention that he was not permitted to make copies of documents in his case-file after the conviction became final.

5.  The applicant complained under Article 4 of Protocol No. 7 that he was tried twice for the same offence. After he had already served three days’ administrative detention for his actions on 4 January 2002, on 24 January 2002 he was re-detained in connection with the same facts. It was not until 2 December 2002 that he was acquitted of that charge. He submitted that the offences under Articles 318 and 319 of the Criminal Code, of which he was found guilty, were closely linked to the offence under Article 213 and therefore he should have been acquitted on these charges as well.

6.  The applicant complained under Article 5 of the Convention that, notwithstanding his explicit request, he was not brought to the court hearing in which the Gribanovskiy District Court stripped him of his parental rights.

THE LAW

1.  The applicant complained under Article 3 of the Convention that he had been ill-treated in January 2002.

The Court notes that the complaint refers to the events that occurred on 24 January 2002 and that there were no proceedings pending after that date. However, the applicant only introduced his application on 22 April 2003, that is more than six months later.

It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

2.  The applicant complained under Article 5 of the Convention that his detention was not “lawful” from 19 October to 2 December 2002.

The Court notes that the applicant did not raise this complaint before a domestic court.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

3.  The applicant complained under Article 6 § 3 (d) of the Convention that the trial court did not summon and interview the witnesses who could have confirmed his innocence of the charge of rape.

The Government submitted that the trial court interviewed five victims and six (out of seven) witnesses who had been listed by the prosecution in the bill of indictment. According to the trial record, the parties did not object to the consideration of the case in the absence of the seventh witness for the prosecution. The trial court summoned and examined five further witnesses whose names were suggested by the prosecution or by the defence. The applicant did not ask the trial court to examine any other witnesses, although he had been aware of his statutory right to seek the attendance of witnesses on his behalf.

The applicant maintained his complaint.

The Court notes that the Russian Code of Criminal Procedure establishes the right of the defendant to lodge requests for the attendance of witnesses (Article 271). The applicant did not dispute the Government’s contention that he did not request the summoning of additional witnesses during trial.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

4.  The applicant complained under Article 13 of the Convention that the authorities did not let him make copies of documents in the case-file.

The Court notes that neither Article 13 nor any other provision of the Convention provides for a right to make copies of the case-file. Even assuming that the applicant’s intention was to complain about a violation of his right to a fair trial under Article 6 of the Convention, the Court notes that by the time of the events complained about the charges against the applicant had already been determined in the final instance.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

5.  The applicant complained under Article 4 of Protocol No. 7 that, after he had already served three days’ arrest for disorderly acts on 4 January 2002, he was re-detained and tried again for the same offence. The relevant part of Article 4 of Protocol No. 7 provides 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...”

The Government submitted that the District Court acquitted the applicant of the charge of disorderly acts under Article 213 § 2 of the Criminal Code and thereby remedied an earlier violation of the applicant’s rights committed by the investigation. The applicant’s conviction under Articles 318 and 319 of the Criminal Code related to the events that occurred after the report on an administrative offence had been drawn up. Thus, the applicant had not been previously tried for either insult of a public official or threat to use violence.

The applicant maintained that he had not been convicted or punished twice, but tried twice before the District Court in respect of the same offences. His first conviction was “criminal” in nature, having regard to the nature and severity of the penalty (deprivation of liberty). The second round of prosecution was based on the same facts, and the offences of “disorderly acts” (Article 158 and Article 213) and “disobedience or resistance to a lawful order” (Article 165 and Articles 318 and 319) had the same essential elements. The applicant submitted that the authorities had opened and carried on a new round of proceedings against him in full knowledge of his previous conviction.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

6.  The applicant complained under Article 5 of the Convention that he was not permitted to attend the hearing before the District Court, in which the issue of his parental rights was determined.

The Court firstly notes that at that time the applicant was serving his sentence after conviction by a competent court. There is nothing to suggest that the requirements of Article 5 § 1 (a) were not complied with. Even assuming that the applicant had an arguable claim under Article 6 or Article 8 of the Convention, the judgment of 27 October 2003 that had been given in the applicant’s absence was later quashed and the matter was remitted for re-examination. It has not been alleged that the applicant would not be able to assert his parental rights in the pending proceedings. This complaint is therefore premature.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaint that he was tried again for the offence, of which he had been previously convicted;

Declares the remainder of the application inadmissible.

Søren Nielsen Christos Rozakis 
 Registrar President

ZOLOTUKHIN v. RUSSIA DECISION


ZOLOTUKHIN v. RUSSIA DECISION