FIFTH SECTION

DECISION

Application no. 35374/12 Andriy Vasylyovych ISHCHENKO against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 11 June 2019 as a Committee composed of:

Yonko Grozev , President, Gabriele Kucsko-Stadlmayer , Lado Chanturia , judges, and Milan Blaško , Deputy Section Registrar ,

Having regard to the above application lodged on 24 May 2012,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Andriy Vasylyovych Ishchenko , is a Ukrainian national, who was born in 1980. He is serving a life imprisonment sentence in Vinnytsya Prison. He was represented before the Court by Mr O.A. Shabatura , a lawyer residing in Vinnytsya .

A. The circumstances of the case

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

3. By a judgment of 17 October 2000 the Zaporizhzhya Regional Court, acting as a first-instance court, found the applicant guilty of two aggravated murders committed on 9 January and 7 February 2000 and sentenced him, under Article 93 of the 1960 Criminal Code of Ukraine (“the 1960 Code”), to life imprisonment. On 11 January 2001 the Supreme Court upheld that judgment.

4. Article 93 of the 1960 Code initially provided for a sentence of eight to fifteen years ’ imprisonment or the death penalty for the type of crimes committed by the applicant. By a decision of 29 December 1999 the Constitutional Court declared the death penalty unconstitutional and instructed Parliament to bring the 1960 Code into line with this decision. By the Law of 22 February 2000, which entered into force on 29 March 2000, Parliament amended the Code and introduced a life imprisonment sentence instead of the death penalty. On 5 April 2001 a new version of the Code was adopted, also providing for life imprisonment sentences for crimes such as those committed by the applicant.

5. On 15 April 2008 the new Code was amended further, providing that if a criminal law were to be amended several times after a person had committed a crime, then the version of the law that provided for the most lenient sentence would be deemed applicable retroactively. Following that amendment, on an unspecified date the applicant requested the domestic courts to bring his sentence into conformity with the 2008 amendments. He argued that his life sentence should be commuted to fifteen years ’ imprisonment – allegedly the maximum punishment in existence at the time when he had committed his crimes (that is, during the period after the death penalty had been declared unconstitutional and before life imprisonment sentences had been introduced into law).

6. In the meantime, in a decision of 26 January 2011, delivered upon a request by the Supreme Court, the Constitutional Court held that after its decision of 29 December 1999 the 1960 Code had not become a new law that mitigated criminal liability for particularly serious crimes. It noted that from the date of adoption of its decision of 29 December 1999, and prior to the Law of 22 February 2000 entering into force, there had been a period of time during which Parliament had been deciding on the amendments to the 1960 Code to replace the death penalty with a life imprisonment sentence. That period came about due to the non-simultaneous loss of force of the provisions of the 1960 Code in respect of the death penalty and the entry into force of the Law of 22 February 2000. However, the fact that this interim period of time had existed did not mean that the relevant sanctions under the 1960 Code had lost their alternative character and that it had only laid down imprisonment for a maximum term of fifteen years as punishment. This was confirmed, in particular, by the fact that the 1960 Code had established a non-alternative sanction – imprisonment for a term of up to fifteen years – in respect of murder without aggravating factors (Article 94). However, the legislature had not provided for the same punishment in respect of murder with aggravating factors, because it had considered that it had to be possible for the courts to apply a more severe criminal punishment (Article 93 of the 1960 Code). It confirmed that, after the decision of 29 December 1999, the 1960 Code had not become a new law that mitigated the criminal liability of individuals who had committed particularly serious crimes. The Code could be changed only by another law on criminal liability coming into effect, and not by a decision of the Constitutional Court, which could only declare relevant provisions unconstitutional. It concluded that the provisions of the 1960 Code, as amended by the Law of 22 February 2000, which entered into force on 29 March 2000, on the replacement of the death penalty with a life imprisonment sentence, should be understood to be a new law which mitigated criminal liability and had retroactive effect.

7. By a final decision of 26 January 2012, the Higher Specialised Civil and Criminal Court of Ukraine rejected the applicant ’ s request. Referring mainly to the decision of 26 January 2011, it held that the fact that there had been a gap between the decision of 29 December 1999 and the entry into force of the Law of 22 February 2000 had not meant that during that period the relevant criminal sanctions had lost their alternative character and that the law had only provided for imprisonment of up to fifteen years. Furthermore, the decision of 29 December 1999 had not made the 1960 Code into a new law mitigating criminal liability for particularly serious crimes. Life imprisonment as a new type of punishment had been a less severe punishment than the death penalty. The amendments of 22 February 2000 had to be understood, in particular, as retrospectively mitigating the criminal liability of persons sentenced to the death penalty but whose sentences had not been executed at the moment of the entry into force of those amendments.

B. Relevant domestic law and practice

8. The relevant domestic law and practice were summarised in Ruban v. Ukraine ( no. 8927/11 , §§ 19-27, 12 July 2016).

COMPLAINTS

9. The applicant complained under Article 7 of the Convention of the domestic courts ’ refusal to commute his sentence from life imprisonment to imprisonment of up to fifteen years.

10. He further complained under Article 6 § 1 of the Convention about the outcome of the criminal proceedings against him and of the proceedings for a commutation of his sentence of life imprisonment.

THE LAW

11. The applicant complained under Article 7 of the Convention of the domestic courts ’ refusal to commute his life imprisonment to imprisonment of up to fifteen years, which he alleged was the maximum punishment for his crimes at the time when he had committed them. The above provision reads, in so far as relevant, as follows:

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”

12. The Court notes that in the case of Ruban v. Ukraine (no. 8927/11, 12 July 2016) the applicant in that case, who had also committed an aggravated murder, similarly argued that in his case the domestic courts should have applied the most favourable wording of the relevant provisions of the Criminal Code, which was that in place between 29 December 1999 and 29 March 2000, when the death penalty had been abolished and life imprisonment had yet to be introduced. In examining that complaint, the Court took notice of the specific context in which the abolition of the death penalty as a punishment for aggravated murder had taken place in Ukraine and accepted that the creation of the gap between 29 December 1999 and 29 March 2000 had been unintentional. It then found that it would be difficult to argue that the wording of the 1960 Code, which existed between 29 December 1999 and 29 March 2000, contained a punishment for the type of crime committed by the applicant that the legislator considered proportionate. The Court further found that from the cited domestic law and practice it could not detect any intention of the legislator in particular, and of the State in general, to mitigate the law during the above period to the extent claimed by that applicant. Consequently, it found no violation of the applicant ’ s rights under Article 7 of the Convention (see Ruban , cited above, §§ 45-46).

13. The Court considers that similar considerations also apply in the present case. The crimes committed by the applicant were punishable by the death penalty prior to 29 December 1999 and the fact that he had committed them in the period between 29 December 1999 and 29 March 2000 – an unintentional gap created after the abolition of the death penalty and before the introduction of the replacement sentence of life imprisonment – did not mean that there was any intention of the legislator and the State to mitigate the criminal law during that period to the extent claimed by him. In other words, that fact did not mean that the death penalty, as previously laid down for the type of crimes committed by the applicant, was automatically replaced by the next most severe penalty in existence during that period (that is, by imprisonment of up to fifteen years). It follows, therefore, that the applicant ’ s complaint is manifestly ill-founded and that it must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

14. The applicant further complained under Article 6 § 1 of the Convention about the outcome of the criminal proceedings against him and of the proceedings in which he sought the commutation of his sentence from life imprisonment to fifteen years ’ imprisonment.

15. The Court has examined the above complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, those complaints do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

16. It follows that those complaints must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 4 July 2019 .

Milan Blaško Yonko Grozev Deputy Registrar President