Communicated on 21 April 2016

FIFTH SECTION

Application no. 2728/16 Oleksandr Olegovych ROSTOVTSEV against Ukraine lodged on 18 December 2015

STATEMENT OF FACTS

The applicant, Mr Oleksandr Olegovych Rostovtsev , is a Ukrainian national, who was born in 1983 and lives in Kyiv. He is represented before the Court by Mr O.M. Guzun , a lawyer practising in Vyshgorod .

A. The circumstances of the case

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

On 7 May 2015 the applicant stood trial before the Kyiv Obolonsky District Court charged with unlawful purchase and possession of large quantities of narcotic drugs, an offence under Article 309 § 2 of the Criminal Code. A prosecutor was present.

It appears from the trial court judgment that when questioned in the course of the trial, the applicant stated that he had been feeling unwell so had been taking Tramadol to relieve the pain. He had suspected that this medication had been prohibited. He admitted that on 22 January 2015 he had bought ten blisters of Tramadol, a narcotic-like pain reliever, from a stranger in the street for the equivalent of about EUR 53 and had been arrested shortly afterwards. He expressed remorse and asked for leniency in sentencing. In view of those admissions the tria l court, relying on Article 349 § 3 of the Code of Criminal Procedure, ruled it unnecessary to examine the evidence related to “circumstances” which were “not contested by any party”. On the same day the trial court convicted the applicant of illegal purchase and possession of drugs, an offence under Article 309 § 2 of the Criminal Code, and sentenced him to two years and six months ’ imprisonment.

The applicant appealed, arguing that his admissions before the trial court had related only to the facts and not to the legal classification of the offence, which he maintained was erroneous. He argued that his acts should have been classified as an offence under Article 320 of the Criminal Code, namely a breach of rules related to the purchase and circulation of drugs and analogous products.

On 1 July 2015 the Kyiv City Court of Appeal dismissed the applicant ’ s appeal without considering it on the merits. It stated that the trial court had decided not to examine the evidence related to circumstances which were uncontested by the parties. Accordingly, no appeal lay against the judgment on the grounds cited by the applicant.

On 3 August 2015 the Higher Specialised Civil and Criminal Court dismissed on the same grounds an appeal on points of law lodged by the applicant.

B. Relevant domestic law

1. Criminal Code 2001

Under Article 309 § 2 of the Code it is unlawful to purchase and possess large quantities of narcotic drugs, psychotropic substances or analogous products where it is not for the purpose of trafficking. The offence is punishable by two to five years ’ imprisonment.

Under Article 320 of the Code breaches of the rules governing the sale and circulation of narcotic drugs, psychotropic substances, analogous products or drug precursors are punishable by a fine, short-term detention ( арешт ) for a period of three to six months or by imprisonment for a period of up to three years.

2. Code of Criminal Procedure 2012

Article 349 § 3 of the Code reads:

“ 3. Provided that the parties do no object, the court may rule that it is unnecessary to examine the evidence concerning circumstances ( обставин ) which are uncontested by the parties. In doing so, the court must satisfy itself that the parties have an adequate understanding of the respective circumstances and that there is no doubt that they have taken that position voluntarily. The court must also explain to them that in this case, they would not have a right to contest such circumstances on appeal.”

Article 394 § 2 of the Code reads:

“2. No appeal may be lodged against a trial court judgment on the grounds that the appellant contests circumstances which were uncontested by the parties at the trial and which the trial court ruled it was unnecessary to examine under Article 349 § 3 of this Code.”

COMPLAINT

The applicant complains under Article 6 of the Convention that he was deprived of the right to appeal against his conviction.

QUESTIONS TO THE PARTIES

W as the applicant afforded a right of appeal compatible with the requirements of Article 2 of Protocol No. 7? In particular:

- Did the applicant waive his right to appeal? If so, was any such waiver established in an unequivocal manner and was it attended by minimum safeguards commensurate to its importance (see, mutatis mutandis , Natsvlishvili and Togonidze v. Georgia , no. 9043/05, § 92, ECHR 2014 (extracts) )?

- Was the restriction of the applicant ’ s right to appeal compatible with the requirements of the above provision? In particular, was the domestic courts ’ interpretation of the scope of the notion of “circumstances” used in Article 349 § 3 of the Code of Criminal Procedure “foreseeable”?