EHRM, 10-02-2009, nr. 14939/03

The applicant submitted that his conviction of an offence under Article 158 of the Code of Administrative Offences satisfied the criteria set out in the Court's jurisprudence on interpretation of the notion of ‘criminal charge’. He pointed out that it was the potential penalty — in his case, fifteen days' imprisonment — rather than the actual penalty imposed which was the decisive element for classification of an offence as ‘criminal’ (he referred to the cases of Engel and Others v. the Netherlands, 8 June 1976, § 85, Series A no. 22, and Lauko v. Slovakia, 2 September 1998, Reports of Judgments and Decisions1998-VI). He recalled that he had been handcuffed in order to be brought before a judge, found guilty on the same day and sentenced to three days' imprisonment with immediate effect.

The Government accepted that the applicant's conviction on 4 January 2002 had been ‘criminal’ in nature.

The applicant submitted that where different offences were prosecuted consecutively as the result of a single act, the key question was whether or not the offences had the ‘same essential elements’. In the Court's jurisprudence, separate offences were distinguished, using the ‘same essential elements’ test, in five circumstances. Firstly, where the conduct attributed to the applicant was not the same with regard to the two offences (as in Manasson, cited above). Secondly, where the offences themselves had different essential aspects (as in Schutte v. Austria, no. 18015/03, 26 July 2007, where the Criminal Code referred to the use of dangerous threat or force against official authority, while the Road Traffic Act merely punished a failure to stop for the purpose of a traffic check). Thirdly, where an essential condition as to the nature of the defendant's guilt was required for one offence but did not apply to the other (such as proof of intent or neglect, as in Rosenquist, cited above, or proof of wilful failure, as in Ponsetti and Chesnel v. France (dec.), nos. 36855/97 and 41731/98, ECHR 1999-VI). Fourthly, if the purpose of the measures was different (for example, prevention and deterrence as opposed to retribution, as in Mjelde v. Norway (dec.), no. 11143/04, 1 February 2007). Fifthly, where the sanctions concerned two distinct legal entities (as in Isaksen v. Norway (dec.), no. 13596/02, 2 October 2003).

With regard to the instant case, the applicant pointed out that he had been charged in criminal proceedings under Article 213 of the Criminal Code for his actions on the morning of 4 January 2002, for which he had already been subjected to an administrative penalty. In his submission, the offences for which he had been prosecuted under Article 213 of the Criminal Code and Article 158 of the Code of Administrative Offences respectively contained the same essential elements, both factual and legal.

In the applicant's view, both sets of proceedings against him had concerned the same facts, that is, swearing at the policemen, breaching public order, refusing to submit to police orders and trying to leave the police station on the morning of 4 January 2002. Their factual identity was borne out by the description of the applicant's actions in the administrative offence report of 4 January 2002 and the bill of indictment of 19 April 2002.

As to the characterisation which could be given to those facts in law, the prosecution of the applicant's actions was possible either under Article 158 of the Code of Administrative Offences or under Article 213 of the Criminal Code. Although the actus reus of the two offences was not precisely the same, they both had the same essential elements. The notion of ‘flagrant displays of disrespect towards the community’ under Article 213 essentially encompassed ‘utterance of obscenities [and] offensive behaviour towards others’ under Article 158. The applicant referred to the jurisprudence of the Russian Supreme Court, which had held since 1978 that one act could constitute either an administrative offence of ‘minor disorderly acts’ or a crime of ‘disorderly acts’ but never both (see paragraph 30 above). Consequently, the possibility of a single act constituting various offences (concours ideal d'infractions) was excluded in the present case.

The Government maintained that the applicant had committed two offences which were distinct from both a factual and legal point of view.

On the facts, the Government claimed that the prosecution of the applicant for the crime of ‘disorderly acts’ under Article 213 § 2 of the Criminal Code had referred to his verbal assaults on Captain S. and Major K. while the latter was preparing an administrative offence report, that is, after the administrative offence had already been committed. According to the Government, given the requirements that the administrative proceedings be conducted ‘speedily’ and within a ‘reasonable time’, the domestic authorities had been unable to prosecute those actions on the part of the applicant immediately as they had been occupied with bringing the applicant before a judge. The institution of criminal proceedings had necessitated additional time and the completion of specific procedural acts. In the Government's view, the present case was similar in terms of its factual circumstances to the cases of Schutte (cited above) and Asci v. Austria (dec., no. 4483/02, ECHR 2006-…).

As to the legal characterisation, the Government acknowledged that both the administrative offence of ‘minor disorderly acts’ and the crime of ‘disorderly acts’ protected the same legal interest, that of public order. However, the two offences differed in their actus reus, the seriousness of the breach of public order and also the severity of the penalty. The administrative offence was less serious than the crime since it covered merely a deviation from established social and moral norms, whereas the crime implied the use of violence and resistance against a public official. The Government pointed out that not only were ‘minor disorderly acts’ punishable by a shorter term of imprisonment, but the conditions of administrative detention were also better than they would be in a prison where convicted criminals served their sentences. There was therefore no identity of the offences.

The third party argued that the French word ‘infraction’ and the English word ‘offence’ had a twofold origin: firstly in the actual, concrete malicious act that created public disorder, and secondly in the legal classification of the offence, that is, the description in a legal rule of conduct which was liable to a penalty. The lay meaning of ‘infraction’ or ‘offence’ related to the offender's conduct. That confusion was maintained by the instruments of international law, which in fact used both expressions (‘offences’ and ‘facts’). This explained why ‘offence’ had been translated as ‘les mêmes faits’ in the French version of the 1990 Convention Implementing the Schengen Agreement.

In the third party's opinion, the ambiguity surrounding the terms ‘infraction’ and ‘offence’ created confusion within the Convention institutions. Whereas the Commission, in the case of Raninen v. Finland (no. 20972/92, Commission decision of 7 March 1996), and the Court in the case of Gradinger v. Austria (23 October 1995, Series A no. 328-C) used the word ‘offence’ to describe the applicant's conduct, the judgment in the case of Oliveira v. Switzerland (30 July 1998, Reports 1998-V) signalled a new departure, whereby the Court accepted that different courts could adjudicate on ‘separate offences, even if they [were] all part of a single criminal act’. Hence, the ‘offence’ concept construed as conduct had begun to give way to an approach which the authors of Protocol No. 7 had not foreseen.

The third party criticised the Court's case-law for its unpredictability and legal uncertainty and urged the Court to adopt a more consistent approach. In its opinion, the approach consisting in defining idem on the basis of the ‘same facts’ was a much safer method for the individual than that based on legal identity. The adoption of the ‘same facts’ approach would enhance the credibility of the Court's case-law concerning an inalienable right which must never be subject to national discretionary powers.

The body of case-law that has been accumulated throughout the history of application of Article 4 of Protocol No. 7 by the Court demonstrates the existence of several approaches to the question whether the offences for which an applicant was prosecuted were the same.

The first approach, which focuses on the ‘same conduct’ on the applicant's part irrespective of the classification in law given to that conduct (idem factum), is exemplified in the Gradinger judgment. In that case Mr Gradinger had been criminally convicted of causing death by negligence and also fined in administrative proceedings for driving under the influence of alcohol. The Court found that although the designation, nature and purpose of the two offences were different, there had been a breach of Article 4 of Protocol No. 7 in so far as both decisions had been based on the same conduct by the applicant (see Gradinger, cited above, § 55).

The second approach also proceeds from the premise that the conduct by the defendant which gave rise to prosecution is the same, but posits that the same conduct may constitute several offences (concours idéal d'infractions) which may be tried in separate proceedings. That approach was developed by the Court in the case of Oliveira (cited above), in which the applicant had been convicted first of failing to control her vehicle and subsequently of negligently causing physical injury. Her car had veered onto the other side of the road, hitting one car and then colliding with a second, whose driver had sustained serious injuries. The Court found that the facts of the case were a typical example of a single act constituting various offences, whereas Article 4 of Protocol No. 7 only prohibited people from being tried twice for the same offence. In the Court's view, although it would have been more consistent with the principle of the proper administration of justice if the sentence in respect of both offences had been passed by the same court in a single set of proceedings, the fact that two sets of proceedings were at issue in the case in question was not decisive. The fact that separate offences, even where they were all part of a single criminal act, were tried by different courts did not give rise to a breach of Article 4 of Protocol No. 7, especially where the penalties were not cumulative (see Oliveira, cited above, §§ 25–29). In the subsequent case of Göktan the Court also held that there had been no violation of Article 4 of Protocol No. 7 because the same criminal conduct of which the applicant had been convicted constituted two separate offences: a crime of dealing in illegally imported drugs and a customs offence of failing to pay the customs fine (see Göktan, cited above, § 50). This approach was also employed in the cases of Gauthier v. France (dec., no. 61178/00, 24 June 2003) and Ongun v. Turkey (dec., no. 15737/02, 10 October 2006).

The third approach puts the emphasis on the ‘essential elements’ of the two offences. In Franz Fischer v. Austria (no. 37950/97, 29 May 2001), the Court confirmed that Article 4 of Protocol No. 7 tolerated prosecution for several offences arising out of a single criminal act (concours idéal d'infractions). However, since it would be incompatible with this provision if an applicant could be tried or punished again for offences which were merely ‘nominally different’, the Court held that it should additionally examine whether or not such offences had the same ‘essential elements’. As in Mr Fischer's case the administrative offence of drunken driving and the crime of causing death by negligence while ‘allowing himself to be intoxicated’ had the same ‘essential elements’, the Court found a violation of Article 4 of Protocol No. 7. It also pointed out that had the two offences for which the person concerned was prosecuted only overlapped slightly, there would have been no reason to hold that the defendant could not be prosecuted for each of them in turn. The same approach was followed in the case of W.F. v. Austria (no. 38275/97, 30 May 2002) and Sailer v. Austria (no. 38237/97, 6 June 2002), both of which were based on a similar set of circumstances.

Since the introduction of the concept of ‘essential elements’ the Court has frequently referred to it in the follow-up cases. In Manasson the ‘essential element’ distinguishing the taxation-law contravention from the criminal-law offence was found to be ‘the applicant's reliance on the incorrect information contained in the books when submitting his tax returns’ (see Manasson, cited above). Similarly, in Bachmaier, the Court noted that the special aggravating element of drunken driving had been established only in one set of proceedings (see Bachmaier v. Austria (dec.), no. 77413/01, 2 September 2004).

In a series of cases involving tax-related offences, two taxation offences were found to differ in their criminal intent and purpose (see Rosenquist, cited above). The same two distinctions were found to be relevant in the cases of Storbråten and Haarvig, both cited above.

A different set of ‘essential elements’ featured in the Court's analysis in two Austrian cases. In Hauser-Sporn it held that the offence of abandoning a victim and the offence of failing to inform the police about an accident differed in their criminal intent and also concerned different acts and omissions (see Hauser-Sporn v. Austria, no. 37301/03, §§ 43–46, 7 December 2006). In Schutte the ‘essential element’ of one offence was the use of dangerous threat or force as a means of resisting the exercise of official authority, whereas the other concerned a simple omission in the context of road safety, namely the failure to stop at the request of the police (see Schutte, cited above, § 42).

Finally, in its most recent decision on the subject the Court determined that the two offences in question had different ‘essential elements’ in that they were distinguishable in terms of their gravity and consequences, the social value being protected and the criminal intent (see Garretta v. France (dec.), no. 2529/04, 4 March 2008).

The Court considers that the existence of a variety of approaches to ascertaining whether the offence for which an applicant has been prosecuted is indeed the same as the one of which he or she was already finally convicted or acquitted engenders legal uncertainty incompatible with a fundamental right, namely the right not to be prosecuted twice for the same offence. It is against this background that the Court is now called upon to provide a harmonised interpretation of the notion of the ‘same offence’ — the idem element of the non bis in idem principle — for the purposes of Article 4 of Protocol No. 7. While it is in the interests of legal certainty, foreseeability and equality before the law that the Court should not depart, without good reason, from precedents laid down in previous cases, a failure by the Court to maintain a dynamic and evolutive approach would risk rendering it a bar to reform or improvement (see Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 56, ECHR 2007-…).

An analysis of the international instruments incorporating the non bis in idem principle in one or another form reveals the variety of terms in which it is couched. Thus, Article 4 of Protocol No. 7 to the Convention, Article 14 § 7 of the UN Covenant on Civil and Political Rights and Article 50 of the Charter of Fundamental Rights of the European Union refer to the ‘[same] offence’ (‘[même] infraction’), the American Convention on Human Rights speaks of the ‘same cause’ (‘mêmes faits’), the Convention Implementing the Schengen Agreement prohibits prosecution for the ‘same acts’ (‘mêmes faits’), and the Statute of the International Criminal Court employs the term ‘[same] conduct’ (‘[mêmes] actes constitutifs’) . The difference between the terms ‘same acts’ or ‘same cause’ (‘mêmes faits’) on the one hand and the term ‘[same] offence’ (‘[même] infraction’) on the other was held by the Court of Justice of the European Communities and the Inter-American Court of Human Rights to be an important element in favour of adopting the approach based strictly on the identity of the material acts and rejecting the legal classification of such acts as irrelevant. In so finding, both tribunals emphasised that such an approach would favour the perpetrator, who would know that, once he had been found guilty and served his sentence or had been acquitted, he need not fear further prosecution for the same act (see paragraphs 37 and 40 above).

The Court considers that the use of the word ‘offence’ in the text of Article 4 of Protocol No. 7 cannot justify adhering to a more restrictive approach. It reiterates that the Convention must be interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory. It is a living instrument which must be interpreted in the light of present-day conditions (see, among other authorities, Tyrer v. the United Kingdom, 25 April 1978, § 31, Series A no. 26, and Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 75, ECHR 2002-VI). The provisions of an international treaty such as the Convention must be construed in the light of their object and purpose and also in accordance with the principle of effectiveness (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 123, ECHR 2005-I).

The Court further notes that the approach which emphasises the legal characterisation of the two offences is too restrictive on the rights of the individual, for if the Court limits itself to finding that the person was prosecuted for offences having a different legal classification it risks undermining the guarantee enshrined in Article 4 of Protocol No. 7 rather than rendering it practical and effective as required by the Convention (compare Franz Fischer, cited above, § 25).

Accordingly, the Court takes the view that Article 4 of Protocol No. 7 must be understood as prohibiting the prosecution or trial of a second ‘offence’ in so far as it arises from identical facts or facts which are substantially the same.

The guarantee enshrined in Article 4 of Protocol No. 7 becomes relevant on commencement of a new prosecution, where a prior acquittal or conviction has already acquired the force of res judicata. At this juncture the available material will necessarily comprise the decision by which the first ‘penal procedure’ was concluded and the list of charges levelled against the applicant in the new proceedings. Normally these documents would contain a statement of facts concerning both the offence for which the applicant has already been tried and the offence of which he or she stands accused. In the Court's view, such statements of fact are an appropriate starting point for its determination of the issue whether the facts in both proceedings were identical or substantially the same. The Court emphasises that it is irrelevant which parts of the new charges are eventually upheld or dismissed in the subsequent proceedings, because Article 4 of Protocol No. 7 contains a safeguard against being tried or being liable to be tried again in new proceedings rather than a prohibition on a second conviction or acquittal (compare paragraph 110 below).

The Court's inquiry should therefore focus 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.

The Court will begin its analysis of the circumstances in the instant case by reviewing the sequence of events that occurred on 4 January 2002 and the charges brought against the applicant.

Early in the morning the applicant's girlfriend was discovered within the military compound and they were both taken to police station no. 9 in order to furnish explanations. No proceedings were brought in respect of the applicant's girlfriend's unlawful entry into the compound.

Once at the police station, the applicant began to shout at Ms Y. and Captain S. and pushed the latter away. He then attempted to leave but was stopped and handcuffed. The police officers decided that the applicant's insolent behaviour amounted to an administrative offence.

The applicant was then taken to the office of Major K., who started drafting a report on the administrative offence. Captain S. and another officer were also present. The applicant continued to behave improperly and swore at Major K.

After the report had been completed, the policemen put the applicant in a car to take him to the Gribanovskiy ROVD. En route the applicant continued to swear at Major K. — who was riding in the same car — and threatened to kill him.

As regards the proceedings brought against the applicant, the Court observes firstly that on 4 January 2002 the District Court convicted the applicant of an offence of ‘minor disorderly acts’ under Article 158 of the Code of Administrative Offences. Although the District Court's judgment contained only one sentence relevant to the establishment of the facts and did not mention any evidence, it may be reasonably assumed that it was based on the administrative offence report which had been compiled by the police and submitted to the District Court (see paragraph 15 above). It transpires that the applicant was found guilty in the administrative proceedings of swearing at police employees and breaching public order shortly after his arrival at police station no. 9.

In the subsequent criminal proceedings the applicant was indicted on three charges in relation to the events of 4 January 2002 (see the charge sheet cited in paragraph 21 above). Firstly, he was charged with ‘disorderly acts’ under Article 213 of the Criminal Code for swearing at Ms Y. and Captain S. and breaching public order in the immediate aftermath of his arrival at police station no. 9. Secondly, he was charged with insulting a public official under Article 319 of the Criminal Code for swearing at Major K. in his office while the latter was drafting the administrative offence report. Thirdly, he was charged with threatening violence against a public official under Article 318 of the Criminal Code for threatening to kill Major K. en route to the Gribanovskiy ROVD.

This recapitulation of the events and charges demonstrates that in the first episode the applicant swore at Ms Y. and Captain S. on the premises of the passport office, whereas in the second and third episodes he insulted Major K., first in his office and then in the car, and threatened him with violence. Hence, there was no temporal or spatial unity between the three episodes. It follows that although in essence the applicant's conduct was substantially similar during the entire day of 4 January 2002 — in that he continued being verbally abusive towards various officials — it was not a continuous act but rather different manifestations of the same conduct shown on a number of distinct occasions (compare Raninen, cited above).

As to the second and third episodes involving Major K., the charges against the applicant were raised for the first and only time in the criminal proceedings. It cannot therefore be said that he was tried again for an offence of which he had already been finally acquitted or convicted. Accordingly, no issue arises under Article 4 of Protocol No. 7 in respect of his prosecution under Articles 319 and 318 of the Criminal Code.

The situation is, however, different with regard to the disorderly conduct in respect of which the applicant was first convicted in the administrative proceedings under Article 158 of the Code of Administrative Offences and subsequently prosecuted under Article 213 of the Criminal Code. Since the same conduct on the part of the same defendant and within the same time frame is at issue, the Court is required to verify whether the facts of the offence of which the applicant was convicted and those of the offence with which he was charged were identical or substantially the same.

The definition of the offence of ‘minor disorderly acts’ under Article 158 referred to three types of prohibited conduct: ‘utterance of obscenities in public’, ‘offensive behaviour towards others’ and ‘other acts that breach public order’. Each of these elements was in itself sufficient for a finding of guilt. Of these, the District Court took account of two elements: uttering obscenities and failure to respond to reprimands, which could be interpreted as a form of ‘acts that breach public order’.

In the ensuing criminal proceedings the applicant was charged under Article 213 § 2 (b) of the Criminal Code. This charge required the prosecution to prove that the defendant had (a) seriously breached public order or displayed flagrant disrespect towards the community; (b) used violence or threatened the use of violence; and (c) resisted a public official. The prosecution's case was that the applicant had uttered obscenities at Ms Y. and Captain S. and also pushed the latter away and threatened him with physical violence. It is not the Court's task to decide whether each of these elements was properly substantiated because, as it has been noted above, a conviction in the second proceedings is not a required element in order for the guarantee of Article 4 of Protocol No. 7 to apply, it being sufficient for the applicant to have been liable to be tried and/or to have actually been tried on these charges.

The facts that gave rise to the administrative charge against the applicant related to a breach of public order in the form of swearing at the police officials Ms Y. and Captain S. and pushing the latter away. The same facts formed the central element of the charge under Article 213 of the Criminal Code, according to which the applicant had breached public order by uttering obscenities, threatening Captain S. with violence and offering resistance to him. Thus, the facts in the two sets of proceedings differed in only one element, namely the threat of violence, which had not been mentioned in the first proceedings. Accordingly, the Court finds that the criminal charge under Article 213 § 2 (b) embraced the facts of the offence under Article 158 of the Code of Administrative Offences in their entirety and that, conversely, the offence of ‘minor disorderly acts’ did not contain any elements not contained in the offence of ‘disorderly acts’. The facts of the two offences must therefore be regarded as substantially the same for the purposes of Article 4 of Protocol No. 7. As the Court has emphasised above, the facts of the two offences serve as its sole point of comparison, and the Government's argument that they were distinct on account of the seriousness of the penalty they entailed is therefore of no relevance for its inquiry.

The applicant submitted that Article 4 of Protocol No. 7 applied not only to cases where a defendant was convicted twice, but also to cases where a defendant was prosecuted twice, regardless of whether there had been a conviction. He recalled that in the case of Gradinger that provision had applied even though the applicant had been convicted of one offence and acquitted of the other. Similarly, he had been prosecuted, tried and eventually acquitted of the offence of ‘disorderly acts’, although he had been convicted previously of an offence of ‘minor disorderly acts’ which had the same essential elements. In his view, that situation amounted to a breach of the non bis in idem principle.

The applicant further maintained that his case was different from that of Ščiukina v. Lithuania (dec., no. 19251/02, 5 December 2006), where the domestic courts had explicitly acknowledged that there had been a violation of the non bis in idem principle and had referred to the possibility of having the previous administrative conviction erased. By contrast, in the instant case a mere reference to the administrative proceedings against the applicant in the judgment of 2 December 2002 could not be interpreted as an acknowledgement of a violation of the applicant's right not to be tried twice. No mention of the non bis in idem principle had been made in the judgment, whether as a norm of the Constitution, of international human rights law or of the Code of Criminal Procedure. As a matter of Russian law, the applicant could not benefit from that principle anyway, as the guarantee against duplication of proceedings was applicable only to ‘crimes’, whereas the applicant had been convicted of an offence classified as administrative. The applicant had been acquitted not because of the repetitive nature of the prosecution, but because of the lack of evidence to prove his guilt.

The applicant expressed his disquiet at the approach established in the case of Zigarella v. Italy (dec., no. 48154/99, 3 October 2002), whereby, in the absence of any damage proved by the applicant, Article 4 of Protocol No. 7 would be breached only if the new proceedings were brought in the knowledge that the defendant had already been tried in previous proceedings. He maintained that it was improbable that the proceedings could be instituted without the knowledge of the State, as it was always the arm of the State which instigated criminal proceedings. In any event, the applicant's factual situation had differed from that obtaining in Zigarella since the Russian authorities had conducted proceedings against him for more than fourteen months in full knowledge of his previous conviction.

The Government claimed for the first time before the Grand Chamber that the applicant could have appealed against his administrative conviction to a higher court. The time-limit for appeal was set at ten days and could be extended at the request of a party. The applicant had not appealed against the administrative conviction and it had not become ‘final’ within the meaning of Article 4 of Protocol No. 7.

In the proceedings before the Chamber, the Government maintained that the District Court had 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. As the second set of proceedings had ended in the applicant's acquittal on the charge of disorderly acts, there had been no repetition of proceedings. The Government did not repeat this argument before the Grand Chamber.

The third party criticised the Court's decision in the Zigarella case which, in its view, introduced a new criterion of applicability which had not existed in the original text of Article 4 of Protocol No. 7, namely the supposed purpose of the provision, to the effect that only new prosecutions that had been initiated intentionally flouted the non bis in idem rule. The third party urged the Court to abandon that additional criterion as it might prove hazardous for the future.

The Court reiterates that the aim of Article 4 of Protocol No. 7 is to prohibit the repetition of criminal proceedings that have been concluded by a ‘final’ decision (see Franz Fischer, cited above, § 22, and Gradinger, cited above, § 53). According to the Explanatory Report to Protocol No. 7, which itself refers back to the European Convention on the International Validity of Criminal Judgments, a ‘decision is final ‘if, according to the traditional expression, it has acquired the force of res judicata. This is the case when it 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’’. This approach is well entrenched in the Court's case-law (see, for example, Nikitin v. Russia, no. 50178/99, § 37, ECHR 2004-VIII, and Horciag v. Romania (dec.), no. 70982/01, 15 March 2005).

Decisions against which an ordinary appeal lies are excluded from the scope of the guarantee contained in Article 4 of Protocol No. 7 as long as the time-limit for lodging such an appeal has not expired. On the other hand, extraordinary remedies such as a request for reopening of the proceedings or an application for extension of the expired time-limit are not taken into account for the purposes of determining whether the proceedings have reached a final conclusion (see Nikitin, cited above, § 39). Although these remedies represent a continuation of the first set of proceedings, the ‘final’ nature of the decision does not depend on their being used. It is important to point out that Article 4 of Protocol No. 7 does not preclude the reopening of the proceedings, as stated clearly by the second paragraph of Article 4.

In the instant case the administrative judgment of 4 January 2002 was printed on a standard form which indicated that no appeal lay against it and that it took immediate effect (see paragraph 19 above). However, even assuming that it was amenable to an appeal within ten days of its delivery as the Government claimed, it acquired the force of res judicata after the expiry of that time-limit. No further ordinary remedies were available to the parties. The administrative judgment was therefore ‘final’ within the autonomous meaning of the Convention term by 15 January 2002, while the criminal proceedings began on 23 January 2002.

Like the Chamber, the Court reiterates that Article 4 of Protocol No. 7 is not confined to the right not to be punished twice but extends to the right not to be prosecuted or tried twice (see Franz Fischer, cited above, § 29). Were this not the case, it would not have been necessary to add the word ‘punished’ to the word ‘tried’ since this would be mere duplication. Article 4 of Protocol No. 7 applies even where the individual has merely been prosecuted in proceedings that have not resulted in a conviction. The Court reiterates that Article 4 of Protocol No. 7 contains three distinct guarantees and provides that no one shall be (i) liable to be tried, (ii) tried or (iii) punished for the same offence (see Nikitin, cited above, § 36).

The applicant in the present case was finally convicted of minor disorderly acts and served the penalty imposed on him. He was afterwards charged with disorderly acts and remanded in custody. The proceedings continued for more than ten months, during which time the applicant had to participate in the investigation and stand trial. Accordingly, the fact that he was eventually acquitted of that charge has no bearing on his claim that he was prosecuted and tried on that charge for a second time. For that reason the Grand Chamber, like the Chamber, finds without merit the Government's contention that there had been no repetition of the proceedings because the applicant had eventually been acquitted of the charge under Article 213 § 2 of the Criminal Code.

Finally, the Court will examine the Government's alternative argument that the applicant's acquittal of the charge under Article 213 § 2 of the Criminal Code had deprived him of his status as a ‘victim’ of the alleged violation of Article 4 of Protocol No. 7.

The Court notes that it has previously found that the way in which the domestic authorities dealt with the two sets of proceedings may be relevant for determination of the applicant's status as a ‘victim’ of the alleged violation of Article 4 of Protocol No. 7 in accordance with the consistent criteria established in its case-law. Thus, in the Zigarella case (cited above) the domestic authorities conducted two sets of proceedings against the applicant concurrently. Following delivery of a ‘final’ judgment in the first proceedings, the second proceedings were terminated on the ground that their conduct was in breach of the non bis in idem principle. The Court accepted that the authorities had explicitly acknowledged a violation and, by discontinuing the second set of proceedings, had offered adequate redress. The applicant therefore lost his status as a ‘victim’ of the alleged violation of Article 4 of Protocol No. 7.

The Court elaborated on this approach in the Falkner case, in which it found that it must be possible for the national authorities to remedy situations such as the one obtaining in that case, in which the first proceedings had been conducted by an administrative authority lacking jurisdiction in the matter. As the authority had subsequently acknowledged its error, discontinued the proceedings and reimbursed the fine, the applicant could no longer claim to be affected by the outcome of those proceedings (see Falkner v. Austria (dec.), no. 6072/02, 30 September 2004).

The Court therefore accepts that in cases where the domestic authorities institute two sets of proceedings but later acknowledge a violation of the non bis in idem principle and offer appropriate redress by way, for instance, of terminating or annulling the second set of proceedings and effacing its effects, the Court may regard the applicant as having lost his status as a ‘victim’. Were it otherwise it would be impossible for the national authorities to remedy alleged violations of Article 4 of Protocol No. 7 at the domestic level and the concept of subsidiarity would lose much of its usefulness.

Turning to the facts of the present case, the Court finds no indication that the Russian authorities at any point in the proceedings acknowledged a breach of the non bis in idem principle. The applicant's acquittal under Article 213 § 2 of the Criminal Code was not based on the fact that he had been tried for the same actions under the Code of Administrative Offences. The reference to the administrative proceedings of 4 January 2002 in the text of the judgment of 2 December 2002 was merely a statement that those proceedings had taken place. On the other hand, it emerges clearly from the text of the judgment that the District Court had examined the evidence against the applicant and found that it failed to meet the criminal standard of proof. Accordingly, his acquittal was founded on a substantive rather than a procedural ground.

The failure of the domestic court to acknowledge a breach of the non bis in idem principle distinguishes the instant case from the Ščiukina case (cited above), where the Supreme Court of Lithuania had expressly acknowledged a violation of this principle by reference to the provisions of the Lithuanian Constitution and Code of Criminal Procedure.

In the Russian legal system, however, the prohibition on repetition of proceedings is restricted to the criminal justice sphere. Under the Code of Criminal Procedure, a previous conviction for an essentially similar administrative offence does not constitute a ground for discontinuing the criminal proceedings (see paragraph 27 above). Similarly, the Russian Constitution only protects an individual against a second conviction for the same ‘crime’ (see paragraph 26 above). Hence, unlike in the Ščiukina case, the Russian courts do not have at their disposal legal provisions which would allow them to avoid a repetition of proceedings in a situation where the defendant is on trial for an offence of which he or she has already been finally convicted or acquitted under the Code of Administrative Offences.

In the light of the above considerations, the Court finds that the applicant's acquittal of the charge under Article 213 § 2 of the Criminal Code did not deprive him of his status as a ‘victim’ of the alleged violation of Article 4 of Protocol No. 7.