Information Note on the Court’s case-law 209

July 2017

Rostovtsev v. Ukraine - 2728/16

Judgment 25.7.2017 [Section IV]

Article 2 of Protocol No. 7

Refusal, owing to unforeseeable application of rules of criminal procedure, of leave to appeal against conviction: violation

Facts – The applicant, who was unrepresented at his trial, was convicted of the illegal purchase and possession of drugs, an offenc e under Article 309 § 2 of the Criminal Code, and given a prison sentence. He sought to appeal on the grounds that he should have been charged with the lesser offence of breaking the rules related to the purchase and circulation of drugs and analogous prod ucts under Article 320 of the Criminal Code. However, he was denied leave to appeal after the court of appeal noted that, because he had admitted the circumstances of the offence at his trial, he was precluded by Article 394 § 2 of the Code of Criminal Pro cedure* from appealing.

In the Convention proceedings, the applicant complained under Article 2 of Protocol No. 7 that he had been deprived of his right to appeal and, in particular, to challenge the legal classification of the acts he had admitted to comm itting.

Law – Article 2 of Protocol No. 7: It was uncontested that in principle the applicant had the right to have his case examined on appeal and that he had been unable to do so because he had admitted to the circumstances on which his conviction was ba sed, thereby accepting the use of an abridged form of proceedings. However, although the applicant’s admission may have amounted to a waiver of some of his procedural rights, it was also uncontested that any such waiver did not encompass the right to appea l on the grounds of the legal classification of his acts. This was precisely the grounds of his appeal. Accordingly, it could not be said that the applicant had waived his right to appeal.

The court of appeal explicitly referred to the legal classification of the applicant’s acts as one of the grounds on which the decision was not amenable to appeal and its conclusions were endorsed by the Higher Specialised Civil and Criminal Court (HSC). However, that position was in direct contradiction with the Governme nt’s interpretation of the relevant domestic legal provisions and with the HSC’s case-law cited by the Government, according to which the notion of “circumstances” used in the relevant domestic proceedings extended only to the factual circumstances of the case and did not include their criminal-law classification. Moreover, the HSC had, with reference to the instant application pending before the Court, itself reiterated in a circular letter to the lower courts that the admission of factual circumstances at the trial did not deprive the defendant of the right to appeal on the grounds that the substantive criminal law had been incorrectly applied. It could not therefore be said that the applicant should have foreseen that, by admitting to the facts as establi shed by the court in the course of his trial, he was forgoing the possibility of appealing against his conviction if he believed the legal classification of his acts was incorrect.

Accordingly, the interpretation of the relevant domestic legal provisions a dopted by the domestic courts in the applicant’s case was not “foreseeable” and, by adopting it, the domestic courts had infringed the very essence of his right of appeal.

Conclusion : violation (unanimously).

Article 41: finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage, the reopening of the proceedings being in principle the most appropriate form of redress and available in Ukrainian law.

* Article 394 § 2 of the Code of Criminal Procedure provides: “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”.

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