Communicated on 6 January 2014

FIFTH SECTION

Application no. 8927/11 Vladimir Nikolayevich RUBAN against Ukraine lodged on 15 October 2010

STATEMENT OF FACTS

The applicant, Mr Vladimir Nikolayevich Ruban , is a Ukrainian national, who was born in 1972 and is currently serving a life sentence . He is represented before the Court by Ms N. Burns , a lawyer practising in Wembley .

A. The circumstances of the case

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

On 13 August 1996 the Voznesensk Local Prosecutor ’ s Office of Mykolayiv Region started an investigation into the murder of four persons.

On 18 October 1999 the Donetsk Regional Prosecutor ’ s Office started investigating the murder of Mr A.

On 10 November 1999 the Slavyansk Police Department of Donetsk Region started investigation into the hooliganism against Mr R.

On 22 November 1999 the above three investigations were joined. Several persons were suspected of committing the above crime as a group, one of them being the applicant.

On 14 December 1999 the Donetsk Regional Prosecutor ’ s Office formally charged the applicant in absentia with the above crimes. He was also placed on the list of wanted persons. The same day the investigation in respect of the applicant was suspended until he was found, while the criminal proceedings continued in respect of other persons.

On 23 December 2002, the Donetsk Regional Court of Appeal convicted and sentenced Mr G., Mr P. and Mr F. for the murders described above.

On 2 February 2004 the Slavyansk Local Court ordered the applicant ’ s detention.

On 28 June 2007 the applicant was apprehended by the Yartsevo Prosecutor ’ s Office in Smolensk Region, Russia.

On 31 March 2008 the investigation was resumed after the applicant had been extradited to Ukraine. The same day the applicant was formally charged with participation in an organised criminal group together with Mr G., Mr P., Mr F. and two persons, who had died by that time. The applicant was accused of strangling Mr A., of killing four persons together with Mr. G. in 1996 and inflicting grievous bodily harm on Mr R. in a murder attempt, the latter crime in the context of extortion from the brother of Mr R. All those crimes had been committed in a group.

On 22 May 2008 the investigation was completed and on 26 June 2008 the case was transferred to the Donetsk Regional Court of Appeal.

On 10 July 2009 the Court of Appeal, acting as a first-instance court, found the applicant guilty of aggravated murder and banditry and sentenced him to life imprisonment.

The applicant and his lawyer appealed considering that the applicant ’ s guilt had not been proved.

On 15 July 2010 the Supreme Court of Ukraine upheld the judgment of 10 July 2009. On that day the applicant ’ s lawyer submitted an additional appeal claiming that the court of appeal had to apply the most favourable wording of the relevant provisions of the Criminal Code, which was that between 29 December 1999 and 29 March 2000 , when the death penalty had been already abolished and the life imprisonment had not been introduced yet . The Supreme Court in its decision noted that the applicant had been sentenced correctly.

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 their 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 Act 1483 on 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 new Criminal Code which entered into force on 1 September 2001. Under paragraph 2 of Article 115 of the Code an aggravated murder is punishable by imprisonment for a term of ten to fifteen years, or life imprisonment.

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, mitigate criminal liability or otherwise improves 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 a 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 s 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. It noted in particular:

“4. The Constitutional Court of Ukraine proceeds from the fact that from the date of adoption by the Constitutional Court of Ukraine of its Decision of 29 December 1999 and prior to entry into force of Act 1483 there was a period of time during which the Verkhovna Rada of Ukraine was deciding on amendments to the [Criminal] Code of 1960 concerning replacement of the death penalty with an other type of punishment - life imprisonment. This period was due to non-simultaneous loss of force by the provisions of the Code of 1960 on the death penalty and the entry into force of Act 1483 on introduction of a new type of punishment...

However, the existence of the mentioned period of time does not mean that the then existing relevant sanctions of articles of the Code of 1960 lost an alternative character and foresaw only a punishment of imprisonment for a maximum term of fifteen years. This is confirmed, in particular, by the fact that the Code of 1960 established non- alternative sanction - imprisonment for up to fifteen years - for murder without aggravating circumstances (Article 94). However, the legislator did not recognize the same punishment comparable with the punishment for murder under aggravating circumstances, because it considered that there had to be a possibility for the court to apply a more severe criminal punishment (Article 93 of the Code of 1960).

...

In addition, the Constitutional Court of Ukraine considers that after its decision of 29 December 1999 the Code of 1960 did not become a new law that mitigated criminal liability of individuals for committing particularly serious crimes. ...

Constitutional Court of Ukraine proceeds from the fact that paragraph 4 of Article 5 of the [Criminal] Code of 2001 provides that [the Code] could be changed only by another law on criminal liability and not by a decision of the Constitutional Court of Ukraine, which is authorized only to declare provisions of the law on criminal responsibility unconstitutional.”

It concluded therefore that the provisions of the Criminal Code, as amended by the Act of Parliament on 2 9 March 2000 on replacement of the death penalty with the life imprisonment, should be understood as a new act which mitigated criminal liability and had retroactive effect in time.

COMPLAINT

The applicant complains under Article 7 of the Convention that in his case the courts should have appl ied the most favourable wording of the relevant provisions of the Criminal Code, which was that between 29 December 1999 and 29 March 2000 , when the death penalty was already abolished and the life imprisonment had not yet been introduced .

QUESTION TO THE PARTIES

Was the failure of the domestic courts to apply the relevant provisions of the Criminal Code in their wo rding, which existed between 29 December 1999 and 29 March 2000, as the most favourable criminal law in the applicant ’ s case compatible with the “ retrospectiveness ” requirement of Article 7 of the Convention (cf. Scoppola v. Italy (no. 2) [GC], no. 10249/03, § § 108 and 109, 17 September 2009 ) ?