FIFTH SECTION

DECISION

Applications nos. 31430/09 and 29104/11 Maksim Viktorovich STEPANENKO against Ukraine and Volodymyr Sergeyevych OSOSKALO against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 14 January 2014 as a Committee composed of:

Angelika Nußberger, President, Ganna Yudkivska, André Potocki, j udges, and Stephen Phillips , Deputy Section Registrar ,

Having regard to the above applications lodged on 14 May 2009 and 22 April 2011 respectively,

Having deliberated, decides as follows:

THE FACTS

The applicant in the first case, Mr Maksim Viktorovich Stepanenko, is a Ukrainian national, who was born in 1975.

The applicant in the second case, Mr Volodymyr Sergeyevych Ososkalo, is a Ukrainian national, who was born in 1969.

Both applicants are currently serving their prison sentences.

A. The circumstances of the case

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

1. Case of Mr Stepanenko

On 25 September 1997 the applicant was sentenced to death by the Donetsk Regional Court for murder. On 12 December 1998 the Supreme Court upheld the decision of the regional court.

On 29 December 1999 the Constitutional Court of Ukraine declared the death penalty to be contrary to the Constitution of Ukraine and repealed the relevant provisions of the Criminal Code.

On 22 February 2000 the Verkhovna Rada (Parliament) replaced the death penalty with life imprisonment in the cases concerned.

On 23 June 2000 the Donetsk Regional Court commuted the applicant ’ s death penalty to life imprisonment.

In December 2005 the applicant lodged an application (no.1860/06) with this Court complaining about the commutation of his sentence. The application was declared inadmissible by a Committee on 2 October 2007 as being manifestly ill-founded.

On 15 April 2008 the Verkhovna Rada adopted an amendment act on humanisation of criminal liability (the Amendment Act), which provided that the most favourable Act of Parliament on criminal liability should have retroactive effect.

On 24 November 2008 the applicant requested the Bogunskyy District Court to review his sentence and to replace his life sentence with fifteen years ’ imprisonment on the basis of the above Amendment Act.

On 5 December 2008 the court rejected the applicant ’ s request on the ground that he had been sentenced in accordance with the law then applicable to the crime of aggravated murder. It further noted that when the death penalty had been replaced by life imprisonment his sentence had been mitigated accordingly from the death penalty to the life imprisonment. As life imprisonment remained a penalty for aggravated murder, there were no reasons to mitigate his sentence further. The applicant was informed about that decision on 10 December 2008. The court also informed the applicant that he could seek a presidential pardon and replacement of his life sentence with twenty-five years ’ imprisonment.

On 3 February 2009 the Zhytomyr Court of Appeal upheld the decision of the first-instance court.

2. Case of Mr Ososkalo

On 23 February 1998 the applicant was sentenced to death by the Volyn Regional Court for murder and other crimes committed in February-May 1997. On 31 March 1998 the Supreme Court upheld the decision of the regional court.

On 24 May 2000, following the abolition of the death penalty described above, the Volyn Regional Court commuted the applicant ’ s death penalty to life imprisonment.

On an unknown date the applicant requested the Sokalskyy District Court to review his sentence and to replace his life sentence with fifteen years ’ imprisonment.

On 24 March 2010 the court rejected the applicant ’ s request on the ground it was not competent to review his case which had been decided at first-instance by the higher court.

By letter of 8 April 2010, the Supreme Court informed the applicant that persons who had committed crimes between 29 December 1999 (when the death penalty was abolished) and 4 April 2000 (when the new maximum penalty of life imprisonment was introduced) could be sentenced to fifteen years ’ imprisonment. Persons who had committed their crimes prior to 29 December 1999 and had been sentenced to death had had their sentences commuted to life imprisonment and there were no grounds to review the applicant ’ s case.

On 26 January 2011 the Constitutional Court of Ukraine adopted its decision in the case concerning replacement of a death penalty with life imprisonment (see domestic law part below).

B. Relevant domestic law and practice

1. Constitution of 28 June 1996

Article 152 § 2 provides that acts of the parliament and other legal acts or provisions that have been declared unconstitutional shall be considered void from the date of the relevant decision of the Constitutional Court.

2. Criminal Code of 28 December 1960 (as worded prior to 29 December 1999)

The relevant provisions of the Code provided as follows:

Article 93. Aggravated murder

Murder: (a) committed for profit; ... (c) committed because of the victim ’ s official or public activity;... (i) committed by a hired killer;... (j) committed premeditatedly by a group of persons or an organised group, –

shall be punishable by imprisonment of eight to fifteen years or by the death penalty and, in cases provided for by subparagraph (a), with confiscation of property.

Following the decision of the Constitutional Court of Ukraine concerning the death penalty (see below), the parliament adopted on 22 February 2000 amendments to the Criminal Code by which the death penalty, as a punishment for some crimes, was replaced with life imprisonment. The amendments entered into force on 29 March 2000.

3. Decision of the Constitutional Court of Ukraine of 29 December 1999 in the case concerning the death penalty

“...The Constitutional Court of Ukraine decided:

1. The provisions ... of the Criminal Code of Ukraine, which provide for the death penalty as a form of punishment, are declared to be contrary to the Constitution of Ukraine (unconstitutional).

2. The provisions of the Criminal Code of Ukraine, which have been declared unconstitutional, shall be null and void from the date of adoption of this Decision by the Constitutional Court of Ukraine.

3. The Verkhovna Rada of Ukraine shall bring the Criminal Code of Ukraine in accordance with this Decision of the Constitutional Court of Ukraine.”

4. Criminal Code of 1 September 2001

On 5 April 2001 the Verkhovna Rada adopted the new Criminal Code which entered into force on 1 September 2001. Under paragraph 2 of Article 115 of the Code, aggravated murder is punishable by imprisonment for a term of ten to fifteen years, or life imprisonment.

Under paragraph 2 of Article 87 of the Code, a Presidential pardon can replace life imprisonment by imprisonment for not less than twenty-five years.

5. Amendment Act on humanisation of criminal liability of 15 April 2008 (the Amendment Act)

This Act amended the Criminal Code and the Code of Criminal Procedure. In particular the amended Article 5 of the Criminal Code contains the following provisions:

“1. A law on criminal liability which repeals criminality of an act, mitigates criminal liability or otherwise improves the situation of a person, shall have a retroactive effect in time, that is it shall apply to persons who had committed relevant acts before such law entered into force, including the persons serving their sentence or those who have completed their sentence but have a conviction.

...

4. If the law on criminal liability was amended several times after the person had committed the act foreseen by this Code, the law which repeals criminality of an act, mitigate criminal liability or otherwise improves situation of a person, shall have a retroactive effect in time.”

6. Decision of the Constitutional Court of Ukraine of 26 January 2011 in the case concerning replacement of a death penalty with a life imprisonment

In this decision, with reference to the admissibility decision in the case of Hummatov v. Azerbaijan ((dec.), nos. 9852/03 and 13413/04, 18 May 2006) the Constitutional Court decided in particular that after its decision of 29 December 1999 on abolition of the death penalty, the Criminal Code had not become a new law that mitigated criminal liability for particularly aggravated crimes. According to it, only the Parliament had competence to amend its Acts and under the Constitution the criminality of actions and punishment for committing crimes had to be defined exclusively by Acts of Parliament. It concluded therefore that the provisions of the Criminal Code, as amended by the Act of Parliament on 29 March 2000 on replacement of the death penalty with life imprisonment, should be understood as a new act which mitigated criminal liability and had retroactive effect in time.

COMPLAINTS

Mr Stepanenko complains under Articles 1, 6 § 1, 7, 13, 14 and 53 of the Convention that the domestic courts unlawfully refused to review his sentence under the Amendment Act of 2008 and to apply the Criminal Code in its most favourable wording.

Mr Ososkalo complains under Articles 3, 6 § 1 and 7 of the Convention that he is serving an unlawful life sentence and that the Constitutional Court in its decision of 26 January 2011 interpreted the criminal law erroneously and to his detriment.

THE LAW

1. Mr Stepanenko complained about refusal of the domestic courts to review his sentence .

Insofar as he referred to Article 6 of the Convention, the Court notes that the said Article, under its criminal head, applies to proceedings involving “determination ... of any criminal charge”. In the present case the applicant ’ s death sentence and its consequent commutation to life imprisonment took place between 1997 and 2000.

The proceedings undertaken by applicant in 2008 seeking to review his sentence involved neither a determination of any criminal charge in his respect, nor any appeal against that criminal charge. Nor did they result in the application of any new criminal law or imposition of any new sentence in respect of the applicant which had not already been applied or imposed before. The Court concludes that, in such circumstances, the proceedings in question did not involve “determination ... of any criminal charge” within the meaning of Article 6 of the Convention.

It follows that, in so far as Mr Stepanenko relied on Article 6 of the Convention, this complaints is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

2. Both applicants further referred to Article 7 of the Convention considering that the provisions of the Criminal Code, in its most favourable wording had not been applied to them.

The Court notes first that both sentencing and commuting of sentence of the applicants took place between 1997 and 2000, all the dates being more than six months prior to lodging of these applications to this Court respectively on 14 May 2009 and 22 April 2011 . Moreover, Mr Stepanenko previously complained about the same matters to the Court in application no. 1860/06. The complaints were declared inadmissible.

The Court further notes that it is clear that the penalty imposed on the applicants at the time of their conviction (death penalty) was applicable under the relevant law at the time the criminal offences were committed. In 2000 this penalty was commuted to life imprisonment. In this connection, the Court reiterates that, for the purposes of Article 7 of the Convention as applied to similar complaints previously examined by the Court, it is only concerned with the question whether the new retroactively applied penalty is heavier than the penalty which was applicable at the time the criminal offence was committed and actually imposed as a punishment for that criminal offence at the time of the applicant ’ s conviction, and not compared to any other alternative penalties which also existed at the time of conviction but were never actually imposed on the applicant by the court which convicted him (see Maksimov v. Azerbaijan (dec.), no. 38228/05, 1 February 2007). As the Court has found previously, the new sentence of life imprisonment is not a heavier sentence than the death penalty which was actually imposed on the applicant at the time of his conviction ( Hummatov v. Azerbaijan (dec.), nos. 9852/03 and 13413/04, 18 May 2006 ). Therefore, the Court cannot conclude that a heavier penalty was imposed on the applicant than the one that was applicable at the time the criminal offence was committed.

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

3. Finally, the applicants ’ reference to other Articles of the Convention in respect of the complaints examined above do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Decides to join the applications

Declares the applications inadmissible.

Stephen Phillips Angelika Nußberger Deputy Registrar President