Resolution CM/ ResDH (2011)312 [1]

Execution of the judgment of the European Court of Human Rights

Savinskiy against Ukraine

(Application No. 6965/02, judgment of 28/02/2006, final on 28/05/2006)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the quashing of a final judgment in criminal proceedings against the applicant under the supervisory review procedure (violation of A rticle 6, paragraph 1 , of the Convention ) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Noting that no just satisfaction was awarded by the Court as the applicant had submitted no claim under this head;

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments , the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ ResDH (2011) 312

Information about the measures to comply with the judgment in the case of

Savinskiy against Ukraine

Introductory case summary

The case concerns the quashing of a final judgment in criminal proceedings against the applicant under the supervisory review ( protest ) procedure. The applicant, a customs officer, was originally charged with aiding and abetting smuggling and tax evasion, abuse of power and fraud and, in November 2000, sentenced to three years ’ imprisonment for negligent performance of his professional duties, absolved of this sentence under an Amnesty Act. Following two requests for supervisory review, the applicant was eventually found guilty of all original charges and sentenced to five years ’ imprisonment in October 2001.

The Court noted that the supervisory review procedure had been initiated twice , at the request of the President of the Regional Court . The Court found in this respect that the grounds for the re-opening of the proceedings were based neither on new facts, nor on serious procedural defects, but rather on the personal disagreement of the President of the Regional Court with the assessment of the facts and the classification of the applicant ’ s actions by the lower instances. The Court thus concluded that the s tate authorities had failed to strike a fair balance between the interests of the applicant and the need to ensure the effectiveness of the criminal justice system.

The Court furthermore stated that the manner in which the President and Presidium of the Regional Court had insisted on a particular qualification and sentence in the criminal case against the applicant was in itself incompatible with the fair trial guarantees (violation of Article 6, paragraph 1).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

The applicant submitted no claim for just satisfaction. Hence the Court made no award under this head.

b) Individual measures

It follows from the Court ’ s judgment (§ 18) that following the aboli tion of the supervisory review procedure in Ukraine in 2001 (see below under general measures), the Supreme Court of Ukraine allowed the applicant ’ s cassation appeal in July 2002 and reconsidered the applicant ’ s case under the new cassation procedure. The Supreme Court changed the decision and sentenced the applicant to two years ’ imprisonment for the negligent performance of his professional duties while acquitting him of the other charges and absolving him from his sentence under the Amnesty Act.

Consequently, no individual measure was considered necessary by the Committee of Ministers.

II. General measures

The supervisory review procedure in Ukraine was abolished in June 2001 following a legislative reform which set up a three-level court system (first-instance court, court of appeal and cassation court , with effect from 29 June 2001). According to the relevant provisions of the Code of Criminal Procedure, a cassation appeal similar to that found in other member s tates of the Council of Europe has since then been available to both prosecution and defence in criminal case s . Its exercise does not depend on the discretionary power of a s tate authority. Leave to appeal in cassation against a decision is given by a judge of the Supreme Court, who may decide to refer the cassation appeal to a three-judge chamber of the Supreme Court for consideration of its merits.

According to the Court ’ s inadmissibility decision in the case of Arkhipov (of 18/05/2004, Application No. 25660/02), the review of final judgments through the new cassation procedure in criminal proceedings meets the requirements of the Convention. As decisions of lower courts given after 29 June 2001 cannot be challenged in cassation indefinitely but only within the time-limits laid down in the Code of Criminal Procedure, the new cassation procedure therefore does not undermine the principle of legal certainty.

The judgment of the Court was translated into Ukrainian and placed on the official website of the Ministry of Justice. It was published in the official government bulletin, the Official Herald of Ukraine [ Ofitsiinyi Visnyk Ukrainy ], No. 45/2006. A summary of the judgment was also published in the Government ’ s Currier ( Uriadovyi Kurier ), No. 117 of 24/06/2006.

III. Conclusions of the respondent state

The government considers that no individual measure is required , that the general measures adopted will prevent similar violations and that Ukraine has thus complied with its obligati ons under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers by tacit procedure in accordance with the decision taken at the 1128 th meeting (December 2011) under item F.