Published on 3 May 2021

FIFTH SECTION

Application no. 48831/18 Petro Petrovych ZASYMCHUK against Ukraine lodged on 6 October 2018 communicated on 12 April 2021

SUBJECT MATTER OF THE CASE

The case concerns the applicant ’ s conviction for desertion allegedly in breach of the nullum crimen sine lege principle enshrined in Article 7 of the Convention: he was found guilty of having evaded “military service upon mobilisation for a special period”, whilst at the time of the events (on 29 March 2014) the domestic law had not provided for such type of military service. Furthermore, the applicant complains, under Article 6 of the Convention in substance, that the domestic courts ’ decisions were arbitrary to the point of prejudicing the fairness of proceedings.

On 21 March 2014 the applicant (a 44-year-old civilian) was summoned to the local military commissariat. As indicated in the notice, under a headline “Information for the enterprise (institution) administration”, he was summoned for a ten-day military training. According to the applicant, given that the last day of the ten-day period in question fell on a weekend, the military unit commandment allowed him, together with some other persons in a similar situation, to return home on 28 March 2014 (Friday).

On 7 December 2015 the Berdychiv City Court (“the Berdychiv Court”) found the applicant guilty of desertion (“unauthorised abandonment of a military unit or a place of one ’ s military service with a view to evading military service”) and sentenced him to three years ’ imprisonment suspended for a probationary period of one year and six months. The trial court relied on testimonies of the military unit senior officials who claimed having explained to the applicant that he had been called to the army for a “special period” following the announcement of a partial mobilisation by the President of Ukraine on 17 March 2014 (in relation to the escalating situation in Crimea). As regards the reference to the ten-day military training in the notice of 21 March 2014, it was found to be irrelevant given that it was addressed to “the enterprise (institution) administration”. The military unit commandment further stated that no permission had been given to the applicant and others to leave. They had not been prevented from leaving, however, as there was an imminent risk of a riot. The applicant ’ s arguments in his defence were as follows: there had been no written document committing him to stay in the army longer than for ten days; he had neither undergone a medical examination nor taken a military oath, both being essential for the military service beginning; furthermore, he had stayed in contact with the military unit after his departure and had even received a certificate of gratitude for having repaired some equipment for it in summer 2014. Lastly, the applicant submitted that at the time of the events there had existed the following types of military service under the Law “On military duty and military service”: conscription, contract military service and studies in a military school (faculty). He emphasised that military service upon mobilisation for a “special period” was added to that list only on 1 April 2014, with the entry into force of the legislative amendments to that effect. The applicants ’ arguments were dismissed as unfounded. As regards his last-mentioned argument, the Berdychiv Court held that the offence committed by the applicant had been of a continuous nature and that the date of the entry into force of the legislative amendments in question was therefore not decisive.

On 22 March and 11 November 2016 the Zhytomyr Regional Court of Appeal quashed the verdict of the Berdychiv Court and discontinued the criminal proceedings against the applicant for the absence of the constituent elements of a criminal offence. Both those rulings were, however, quashed by the Higher Specialised Court for Civil and Criminal Matters (on 20 September 2016 and 23 June 2017, respectively), which remitted the case to the appellate court for fresh examination. Having examined the case for the third time, on 25 September 2017 the Court of Appeal upheld the judgment of 7 December 2015. On 31 May 2018 the Cassation Criminal Court of the Supreme Court (which replaced the Higher Specialised Court for Civil and Criminal Matters following a judiciary reform) rejected the applicant ’ s appeal on points of law and his conviction became final.

QUESTION S TO THE PARTIES

1. Did the applicant have a fair trial in compliance with Article 6 of the Convention? In particular, did the domestic courts provide adequate reasoning in their decisions and did they truly “hear” the applicant ’ s arguments (see, for example, Ilgar Mammadov v. Azerbaijan (no. 2) , no. 919/15, §§ 205-10 and 237, 16 November 2017, and the case-law references therein)?

2. Was the applicant ’ s conviction for desertion compatible with the requirements of Article 7 of the Convention?