The ECHR judgment of 25 July 2017 in the case of Rostovtsev v. Ukraine (application No. 2728/16).
In 2016, the applicant was assisted in the preparation of the application. Subsequently, the application was communicated to Ukraine. The applicant successfully complained of the impossibility of reviewing the conviction in connection with the unpredictable application of the rules of the criminal process. The case involved violation of the requirements of Article 2 of Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
The applicant, who did not use the services of a lawyer during the trial, was convicted of illegal acquisition and possession of narcotic drugs, the crime provided for in Part 2 of Article 309 of the Penal Code, and was sentenced to imprisonment. He tried to appeal the verdict on the grounds that he should have been charged with a less serious crime, "violation of established rules for the circulation of narcotic drugs, psychotropic substances, their analogues or precursors", stipulated in Article 320 of the Criminal Code. However, he was denied the right to appeal, when the Court of Appeal noted that, since the applicant recognized the circumstances of the commission of the crime in court, pursuant to part 2 of article 394 of the Code of Criminal Procedure, he could not appeal the verdict.
In the conventional proceedings, the applicant claimed, referring to Article 2 of Protocol No. 7 to the Convention, that he was deprived of the right of appeal and, in particular, challenging the legal qualifications of the acts committed by him.
ISSUES OF LAW
Concerning compliance with Article 2 of Protocol No. 7 to the Convention. It was not contested that, in principle, the applicant had the right to review the case on his complaint and that he could not do so, because he recognized the circumstances on which the charge was based, thus he agreed to a simplified form of the proceedings. However, although the applicant's confession could amount to the waiver of some of his procedural rights, it was also not disputed that any such refusal did not cover the right to appeal for reasons of the legal qualifications of his actions. That was the reason for his complaint. Accordingly, it can not be asserted that the applicant renounced his right to appeal. The second part of Article 394 of the Code of Criminal Procedure provides: "The court decision of the court of first instance can not be appealed on appeal on the grounds of objection to circumstances that were not challenged by anyone during the trial and whose investigations were declared inadmissible by the court in accordance with the provisions of part three of Article 349 of this Code. "
The Court of Appeal directly referred to the legal qualification of the applicant's actions as one of the grounds on which the decision was not subject to appeal, and his conclusions were approved by the Higher Specialized Court for the Review of Civil and Criminal Cases (hereinafter referred to as HSC). However, this position directly contradicted the interpretation by the respondent State authorities of the applicable domestic legal norms and the HSC case-law, cited by the Ukrainian authorities, according to which the concept of "circumstances" used in the relevant domestic proceedings only extended to the actual circumstances of the case and did not include their criminal legal qualifications . In addition, the HSC himself, referring to this complaint pending before the European Court, recalled in a circular letter to lower courts that the recognition of factual circumstances in the court does not deprive the defendant of the right to appeal the sentence for reasons of improper application of substantive law. Consequently, it could not be argued that the applicant should have foreseen that, in acknowledging the facts established by the court during the proceedings, he refused to appeal his conviction if he considered the legal qualification of his actions incorrect.
Accordingly, the interpretation of the relevant domestic legal norms adopted by the country's courts in the applicant's case was not "predictable", and by accepting it, the courts of Ukraine violated the very essence of his right to appeal.
In the case there was a violation of the requirements of Article 2 of Protocol No. 7 to the Convention (unanimously adopted).
In the application of Article 41 of the Convention. Establishing the fact of the violation would be sufficient just compensation for moral harm, the resumption of proceedings in principle would constitute the most expedient form of compensation available in the legislation of Ukraine.