Constitutionality of Article 212.1 of Criminal Code

JurisdictionRusia
CourtRussian Federation Constitutional Court
JudgeKokotov,Krasavchikova,Danilov,Knyazev,Zharkova,Bondar,Zorkin,Khokhryakova,Aranovsky,Mavrin,Yaroslavtsev,Kazantsev,Gadzhiev,Rudkin,Melnikov
Docket Number(Judgment No 2-P/2017)

Russian Federation, Constitutional Court.

(Zorkin, President; Aranovsky, Bondar, Gadzhiev, Danilov, Zharkova, Kazantsev, Knyazev, Kokotov, Krasavchikova, Mavrin, Melnikov, Rudkin, Khokhryakova and Yaroslavtsev, Judges)

(Judgment No 2-P/2017)

Re Review of Constitutionality of Article 212.1 of the Criminal Code of the Russian Federation 1

Human rights — Peaceful assembly and association — Universal Declaration of Human Rights 1948, Article 20(1) — International Covenant on Civil and Political Rights, 1966, Article 21 — European Convention on Human Rights, 1950, Article 11 — Restrictions on right to freedom of peaceful assembly and association — Review of constitutionality of Article 212.1 of Criminal Code of Russian Federation — Whether criminalizing a breach of rules on the organization and holding of a public event compatible with the right of peaceful assembly

Human rights — International Covenant on Civil and Political Rights, 1966, Article 14(7) — Protocol No 7 to 1950 European Convention on Human Rights, 1984, Article 4(1) — Non bis in idem — Review of constitutionality of Article 212.1 of the Criminal Code of Russian Federation — Whether criminalizing multiple breaches of rules on the organization and holding of a public event compatible with the principle non bis in idem

Human rights — Fair trial — European Convention on Human Rights, 1950, Article 6 — Review of constitutionality of Article 212.1 of the Criminal Code of Russian Federation — Whether facts established in judgments imposing administrative liability can be given prejudicial character in criminal proceedings — The law of the Russian Federation

Summary:2The facts:—The complainant, Mr Dadin, referred the question of the constitutionality of Article 212.1 of the Criminal Code of the Russian Federation3 (“the Criminal Code”) to the Constitutional Court of the Russian Federation.

Article 20.2 of the Administrative Offences Code of the Russian Federation4 (“the Administrative Offences Code”) imposed administrative liability for various breaches of the rules on the organization and holding of an assembly, meeting, demonstration, procession or picketing. Article 212.1 of the Criminal Code criminalized breaches of rules on the organization and holding of a public event if they were committed repeatedly, i.e. if administrative liability for a breach under Article 20.2 of the Administrative Offences Code was imposed on a person more than twice during a period of 180 days.

By resolutions dated 4, 23 and 26 September 2014, the Tverskoy District Court of Moscow imposed three administrative fines on the complainant for his participation in three public events held without a preliminary notification to the executive bodies of the City of Moscow, which constituted an administrative offence punishable under Section 5 of Article 20.2 of the Administrative Offences Code.

After the complainant participated in another public event held on 5 December 2014 without a notification of the executive bodies, a criminal case was initiated against him under Article 212.1 of the Criminal Code. The case was referred to a body of preliminary investigation.

On 15 January 2015, the complainant participated in another public event held without a preliminary notification. By resolution dated 16 January 2015, the Tverskoy District Court of Moscow imposed an administrative penalty on the complainant based on Section 5 of Article 20.2 of the Administrative Offences Code.

The criminal case was heard by the Basmanny District Court of Moscow. On 7 December 2015, this Court found the complainant guilty of the crime envisaged by Article 212.1 of the Criminal Code and sentenced him to deprivation of liberty for a term of three years.

Held:—Article 212.1 of the Criminal Code was compatible with the Constitution of the Russian Federation.

(1) The right to assemble peacefully envisaged by Article 20(1) of the Universal Declaration of Human Rights 1948,5 Article 21 of the International Covenant on Civil and Political Rights, 19666 and Article 11 of the European Convention on Human Rights, 19507 (“the European Convention”) was not absolute. It was subject to restrictions prescribed by the law that were necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of public health or morals or the protection of rights and freedoms. Such restrictions, however, should not hinder the full realization of the right to assemble peacefully and should be in conformity with the principles of necessity and proportionality and should be commensurate with the gravity of any threat posed.

(a) The principles of necessity, proportionality and commensurateness required a gradual aggravation of liability and coercion depending on the degree of danger to the public order. Accordingly, Russian law imposed administrative liability for a single breach of the rules on the organization or holding of a public event, stricter measures of administrative liability for a repeated breach under Article 20.2 of the Administrative Offences Code and criminal liability for multiple breaches under Article 212.1 of the Criminal Code (paras. 2 and 5.2).

(b) However, the imposition of criminal liability for multiple commission of such breaches did not always constitute a restriction compatible with the

full realization of the right to assemble peacefully. There was a differentiation between the breaches envisaged under Article 20.2 of the Administrative Offences Code. Some sections of the article dealt with breaches that were not linked to causing, or creating a threat of causing, harm to the health or property of third persons, public security or other constitutionally guarded values. Other sections dealt with offences with increased danger to the public order where such harm or threat were present. In the latter case, when the application of measures of administrative liability under Article 20.2 proved insufficient and did not prevent multiple breaches of the rules on the organization or holding of a public event, the degree of danger to the public order of such breaches justified stricter measures of coercion, including criminal liability. However, if those multiple breaches were merely formal and entailed no occurrence or a threat of occurrence of the said negative circumstances, a restriction of the right of peaceful assembly by way of criminal coercion was not justified or admissible. Therefore, the commission of multiple administrative breaches under Article 20.2 of the Administrative Offences Code could only lead to criminal liability under Article 212.1 of the Criminal Code if the conduct in question caused harm or created a threat of causing harm to the health and property of third persons, public security or other constitutionally guarded values (para. 5).

(2) In establishing measures of criminal liability for breaches of the rules on the organization or holding of a public event, the legislator had to observe general principles of criminal liability, including the principle non bis in idem. Criminal liability for a repeated breach of the established rules on the organization or holding of a public event was not incompatible with the principle non bis in idem as reflected in Article 14(7) of the International Covenant on Civil and Political Rights8 and Article 4(1) of Protocol No 7 to the European Convention, 1984.9 Article 212.1 of the Criminal Code did not impose criminal liability on a person for a breach of the established rules on the organization or holding of a public event for which this person had been previously subjected to administrative liability. The action for which a person was being charged under Article 212.1 of the Criminal Code should not have been a ground for administrative liability of that person (paras. 3 and 4.2).

(3) Article 6 of the European Convention10 provided entitlement to judicial protection against unfounded criminal charges. In the context of Article 212.1 of the Criminal Code, this required that the prejudicial character

of the prior administrative judgments was not regarded as irrefutable, but rather that the court verified all the circumstances of the commission of the action and ensuing criminal liability (para. 5.4).

The following is the text of the judgment of the Constitutional Court:

1. In accordance with Article 212.1 of the Criminal Code of the Russian Federation, breach of the established order of the organization or holding of an assembly, meeting, demonstration, procession or picketing, if this action has been committed repeatedly, is punished by a penalty in the amount of 600,000 to 1,000,000 roubles or in the amount of a convicted person's salary or other income for the period of two to four years, or mandatory labour for the term of up to 480 hours, or correctional labour for the term of one to two years, or compulsory labour for the term of five years, or deprivation of liberty for the same term. At this, the breach of the established order of organization or holding of an assembly, meeting, demonstration, procession or picketing is recognized, in accordance with the footnote to this Article, as committed repeatedly, if breach of the established order of organization or holding of an assembly, meeting, demonstration, procession or picketing, if this person was earlier made administratively answerable for the commission of administrative offences envisaged by Article 20.2 of the Administrative Offences Code of the Russian Federation more than twice during 180 days.

1.1. By resolutions of the Tverskoy District Court of the City of Moscow of 4, 23 and 26 September 2014 I. I. Dadin for the commission of administrative offences—participation in public events, which were held on the Manezhnaya square without preliminary notification of bodies of executive power of the City of Moscow—picketings (23 August and 13 September 2014) and a meeting (6 August 2014), under Section 5...

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