CONCURRING OPINION OF JUDGE ZUPAN Č I Č

This case presents us with a genuine “prisoner ’ s dilemma”. Due to the peculiar nature of Ukrainian criminal procedure, the applicant spent his entire time in prison in “pre-trial detention” although that detention had de facto been post-trial and pre-sentencing. In the end, the trial court calculated the sentence by including all the “pre-trial” time spent in detention. Accordingly, the applicant was due to be released immediately after the subsequent pronouncement of the sentence.

A dilemma thus arose for the applicant. If he accepted the judgment and sentence as final, he was free to walk out of prison. However, if he chose to exercise his right of appeal guaranteed by the Convention, the Constitution and the criminal procedure, he was destined to remain in what was dubbed “pre-trial” detention.

In other words, by a quirk of the system he was prevented, or at the very least seriously discouraged, from exercising his right of appeal as per Article 2, paragraph 1, of Protocol No. 7:

Right of appeal in criminal matters

“1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.

... ”

I agree with the outcome in this case, of course, but propose to draw an analogy here with the well-known precept of criminal procedure concerning the so-called “prohibition of reformatio in peius ”. Some legal authors maintain that this is a right of constitutional rank, namely, that the defendant, where he is the sole appellant, must have the assurance that his sentence on appeal will not be harsher than the sentence pronounced by the lower-instance court. [1]

However, no such guarantee is enshrined in the Convention or its Protocols; neither do we believe that the prohibition of reformatio in peius is per se of constitutional importance.

What is of constitutional importance, on the other hand, is the defendant ’ s right of appeal. The latter is, as per H.L.A. Hart, a prescriptive norm, whereas the prohibition of reformatio in peius is a n instrumental rule vis - Ã - vis the prescriptive norm .

On the other hand, the immediate ratio legis of the prohibition of reformatio in peius is also very pragmatic. If the appellate courts are to have access to certain kinds of cases in order to be able to streamline the criminal case-law, appellants convicted in the lower-instance courts are not to be discouraged from lodging their appeals.

Nevertheless, even from this down-to-earth perspective, the prohibition of reformatio in peius is perceived as a traditional right of defendants who have been convicted in a non-final judgment in continental criminal proceedings; it is a legitimate appendage to their post-trial procedural position, irrespective of the narrower ratio legis enunciated above. Even if only tangentially, therefore, these defendants are supposed to benefit from this guarantee. Thus, from their own point of view, as well as from the point of view of the rule of law, criminal defendants must not be seriously discouraged from appealing against their convictions.

However, this is precisely what happened in the case before us. If the defendant had appealed against his conviction, his “pre-trial” detention would have been extended for the period it would have taken the appellate court to decide the case. Thus, he was barred from appealing against the judgment of the first-instance court. Accordingly, his right of appeal guaranteed under Article 2, paragraph 1, of Protocol No. 7 ( supra ) was in fact violated.

If we were to consider in abstracto the prohibition of reformatio in pei us as a procedural right appended to the right of appeal, the discouragement inherent in this case regarding the defendant ’ s right to appeal would have been deemed to infringe the same ratio legis . For this reason, his case never reached the appellate court. It would, however, unquestionably have been in his interest as well as in the interest of the rule of law for the appellate court to have had the opportunity to adjudicate the case.

However, the Convention does not yet directly recognise the prohibition of reformatio in peius as a right of the defendant. Moreover, there is no case-law of the European Court of Human Rights on the matter. But the idea of not discouraging appellants does apply even within the Strasbourg system. As was pointed out by Judge Wojtyczek in paragraph 11 of his separate opinion in Janowiec and Others v. Russia ( [ GC], nos. 55508/07 and 29520/09 , ECHR 2013 ) ,

“[ i t ] should be noted that the instant case was referred to the Grand Chamber at the request of the applicants . While the Convention does not set out a prohibition of reformatio in peius , the situation is paradoxical , in that a remedy provided for by Article 43 of the Convention and used by the applicants with a view to ensuring protection of [ their ] human rights has ultimately led to a Grand Chamber judgment which is much less favourable to them than the Chamber judgment . ”

[1] 1. See , for example , C. Herke and D. T ó th , “ Theoretical and Practical Issues of the Prohibition of Reformatio in Peius in Hungary ” , Issue s of Business and Law , Volume 3 (2011), at www.herke.hu/tan/11litv.pdf .