FOURTH SECTION      CASE OF ROSTOVTSEV v. UKRAINE (Application no. 2728/16)       JUDGMENT       STRASBOURG 25 July 2017 FINAL 25/10/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.In the case of Rostovtsev v. Ukraine,The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Vincent A. De Gaetano, President, Ganna Yudkivska, Egidijus Kūris, Iulia Motoc, Carlo Ranzoni, Marko Bošnjak, Péter Paczolay, judges,and Marialena Tsirli, Section Registrar,Having deliberated in private on 27 June 2017,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 2728/16) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Oleksandr Olegovych Rostovtsev (“the applicant”), on 18 December 2015.2. The applicant was represented by Mr O. Guzun, a lawyer practising in Vyshgorod. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna.3. The applicant alleged that he had been deprived of the right to appeal against his conviction.4. On 21 April 2016 the application was communicated to the Government.THE FACTSI. THE CIRCUMSTANCES OF THE CASE5. The applicant was born in 1983 and lives in Kyiv.6. 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. The applicant was unrepresented.7. 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 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 trial court, relying on Article 349 § 3 of the Code of Criminal Procedure (“CCP”) (see paragraph 13 below), ruled it unnecessary to examine the evidence related to the “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.8. 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 mere possession of Tramadol was not unlawful as such, except where it was in breach of the applicable regulations. For this reason, his acts should have been classified not under Article 309 of the Criminal Code as drug possession but rather under Article 320 of the Criminal Code, namely breach of the rules related to the purchase and circulation of drugs and analogous products.9. On 1 July 2015 the Kyiv City Court of Appeal, sitting as a single‑judge formation, denied the applicant leave to appeal. The court stated that the applicant had admitted the circumstances of the offence and the trial court had then proceeded under Article 349 § 3 of the CCP. However, in his appeal the applicant was contesting his conviction under Article 309 of the Criminal Code and the legal classification of his actions. The court held that, because of the applicant’s admission and the procedure used at the trial under Article 394 § 2 of the CCP (see paragraph 14 below), the decision was not amenable to appeal on the grounds invoked by the applicant.10. On 3 August 2015 the Higher Specialised Civil and Criminal Court dismissed an appeal on points of law lodged by the applicant, holding that the Court of Appeal’s decision had complied with the rules of criminal procedure.II. RELEVANT DOMESTIC LAW AND PRACTICEA. Criminal Code 200111. 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.12. 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.B. Code of Criminal Procedure 201213. Article 349 § 3 of the CCP 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.”14. Article 394 § 2 of the CCP 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.”15. Article 409 of the CCP provides that a trial court judgment may be quashed or amended on appeal on the following grounds: (i) a substantial breach of the rules of criminal procedure; (ii) an error in application of the substantive criminal law; (iii) a sentencing error; or (iv) an error of fact or incompleteness of the trial.16. Article 445 of the CCP reads: “1. Grounds for review by the Supreme Court of Ukraine of the judicial decisions which came into force shall be:...(4)  a finding by an international judicial body, whose jurisdiction is accepted by Ukraine, of a violation by Ukraine of its international obligations during the judicial examination of the case.”Articles 446-458 of the CCP set out the following procedure for the examination of reopening requests lodged under Article 445 of that code:(i)  a request for reopening can be lodged by “the person in whose favour the international court ruled” (hereinafter “the beneficiary”) or his or her representative within three months of the day on which the beneficiary has learned or ought to have learned that the international court’s judgment has become final. However, the Supreme Court can extend this time-limit if a valid reason is shown;(ii)  the request for reopening must contain certain information such as the applicant’s contact details, must be signed and accompanied by certain supporting documents, notably a copy of the international court’s judgment;(iii)  a single judge of the Supreme Court first conducts an initial examination of any request for review. The judge must verify whether the request complies with the formal requirements in terms of the details it must contain and the accompanying documents and, if it does not, must set a time-limit for the applicant to fix the defects. If the defect is fixed within the time-limit set, the date on which the request was originally lodged is taken for the purposes of calculation of the three-month time-limit;(iv)  if the single judge is satisfied that the request is well-founded, the judge initiates review proceedings. If the judge is not so satisfied, the matter of initiation of proceedings is referred to a panel of three judges;(v)  once the proceedings are initiated, the review request is examined at the joint meetings of all chambers of the Supreme Court. The parties to the proceedings are notified of the date and time of the hearing. If they fail to appear without providing a good reason the Supreme Court can proceed in their absence. The parties present have a right to address the court;(vi)  after the hearing the Supreme Court may reject the request for review or grant it and (a) amend lower court(s) decisions without remitting the case or (b) quash lower court(s)’ decisions and remit the case for retrial or rehearing on appeal or (c) quash previous judicial decisions and discontinue proceedings in the criminal case.C. Case-law of the Higher Specialised Civil and Criminal Court concerning the right to appeal in cases where defendants plead guilty17. The Higher Specialised Civil and Criminal Court (“the HSC”) examined the following cases on the merits and allowed appeals on points of law in situations where the defendants had pleaded guilty and the trial proceeded in an abridged form under Article 349 § 3 of the CCP:(i)  on 25 March 2014 the HSC allowed an appeal lodged by a prosecutor against the judgment of the Brovary Court of 28 January 2013 convicting a defendant of shoplifting, an offence which the trial court had classified as completed. In the appeal the prosecutor argued that the offence should have been classified as “attempted” shoplifting. The HSC agreed and amended the judgment accordingly;(ii)  on 21 May 2016 the HSC allowed an appeal lodged by a prosecutor and quashed the ruling of the Chernihiv Regional Court of Appeal of 17 November 2015 by which the court of appeal had refused to examine the prosecutor’s appeal against a lower court’s judgment convicting two defendants of carjacking. The HSC held that the court of appeal, in refusing to examine the prosecutor’s appeal, had misapplied Article 394 § 2 of the CCP because the prosecutor had challenged not the facts of the case, which the defendants had admitted, but merely the legal classification of one of the defendant’s actions as committed “repeatedly”, which qualified as a characteristic of an aggravated offence under the relevant provision of the Criminal Code.18. Following communication of the case to the respondent Government, on 16 November 2016 the HSC sent a circular letter to the courts of appeal explaining, with reference to the instant application pending before the Court, that the admission of factual circumstances by the defendant and the application of the abridged procedure pursuant to Article 349 § 3 of the CCP did not deprive the defendant of the right to appeal on the grounds that the substantive criminal law had been incorrectly applied.D. Case-law of the Supreme Court concerning reopening of proceedings following judgments of the European Court of Human Rights19. It appears that in the period since the delivery of the Court’s judgment in Yaremenko v. Ukraine (no. 2) (no. 66338/09, 30 April 2015), which clarified the consequences of a finding of a violation of the right to a fair trial in criminal cases, the Supreme Court quashed the applicants’ convictions and remitted cases for retrial in all cases where requests for reopening complied with formal requirements of domestic law (see paragraph 16 (i) and (ii) above).20. In particular, on 6 July 2015 the Supreme Court quashed the applicant’s conviction and remitted the case for retrial following the Chopenko v. Ukraine judgment (no. 17735/06, 15 January 2015), on 9 November 2015 following Yaremenko v. Ukraine (no. 2) (no. 66338/09, 30 April 2015), and Zhyzitskyy v. Ukraine (no. 57980/11, 19 February 2015) judgments, on 30 November 2015 following Ogorodnik v. Ukraine judgment (no. 29644/10, 5 February 2015), on 21 December 2015 following Ushakov and Ushakova v. Ukraine judgment (no. 10705/12, 18 June 2015), and on 6 February 2017 following Zyakun v. Ukraine judgment (no. 34006/06, 25 February 2016).21. In the above period there appeared to be no instances where the Supreme Court would not reopen proceedings where the Court found a violation of the right to a fair trial and the applicant’s request for reopening complied with formal requirements. However, requests for reopening were rejected in a number of cases where the requests did not comply with those requirements. Requests for reopening based on judgments in Yushchenko and Others v. Ukraine (nos. 73990/01 and 3 others, 15 July 2010), Sobko v. Ukraine (no. 15102/10, 17 December 2015), and Zakshevskiy v. Ukraine (no. 7193/04, 17 March 2016) were rejected on those grounds.E. Law on the Execution of Judgments of the European Court of Human Rights 200622. Section 10 of the Law provides for additional individual measures with a view to the execution of judgments of the Court, including the review of a case by a court and the reopening of judicial proceedings.THE LAWI. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL NO. 723. The applicant complained that he had been deprived of the right to appeal against the judgment in his criminal case. He relied on Article 2 of Protocol No. 7, which reads as follows:“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.2. This right may be subject to exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal.”A. Admissibility24. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.B. Merits1. The parties’ submissions25. The applicant submitted that in the course of the trial he had not said anything about the legal classification of the acts which he had admitted to committing. This was understandable, as he had no legal training and had not been represented by a lawyer. Accordingly, he had not waived his right to appeal. The scope of the notion of “circumstances” adopted by the domestic courts had not been “foreseeable” and the Court of Appeal and the HSC had dismissed his appeals unlawfully. That restriction on the right to appeal was incompatible with Article 2 of Protocol No. 7 and domestic law.26. The Government submitted that the notion of “circumstances” used in Articles 349 § 3 and 394 § 2 of the Code of Criminal Procedure (see paragraphs 13 and 14 above) encompassed only factual circumstances and allowed appeals on questions of law, including those concerning the legal classification of the acts or omissions admitted by the defendant. In this connection, the Government referred to the case-law of the HSC (see paragraph 17 above). For the Government, the procedure established by Article 349 § 3 of the CCP allowed defendants to validly waive their procedural rights. Moreover, it complied with the requirements for a valid waiver set forth in the Court’s case-law, in that it required the domestic courts to verify that defendants understood the implications of accepting the use of that abridged procedure and accepted it voluntarily. Moreover, the waiver under Article 349 § 3 was not absolute in that it did not prevent appeals on procedural grounds and did not extend to the legal classification of the admitted facts. In that sense, the scope of the notion of “circumstances” used in the provision in question was precise and foreseeable. Accordingly, the applicant had not been deprived of the right to appeal against his conviction. His appeal had been dismissed apparently because the domestic courts had considered that, despite his apparent wish to challenge the legal classification of the offence, he “in fact challenged his admittance [sic] of the facts under Article 349 § 3 procedure”.

Outcome for Article 41: violation