CASE OF SAVINSKIY v. UKRAINE
Violation of Art. 6-1
7. The applicant was born in 1969 and lives in the village of Ponyatovka, Odessa region, Ukraine. 8. The applicant worked as a customs officer at the Rozdilnyanska Customs Office in the Odessa Region, Ukraine. 9. On 24 July 2000 the applicant was charged with the criminal offences of aiding and abetting in smuggling and tax evasion, abuse of power and fraud. The same day the applicant was arrested. He remained in custody until 6 November 2000. 10. On 6 November 2000 the Novozavodsky District Court of Chernigiv decided the applicant’s case. The court established, in particular, that the applicant had certified documents confirming that two vans with goods had left the customs territory of Ukraine, and that the applicant had not checked the actual presence of the vehicles at the customs post. The goods were, however, found and seized by the Security Service somewhere else within the customs territory of Ukraine. The court did not find any proof that the applicant had acted deliberately in order to aid the crime: the applicant denied any criminal intent and no other persons involved in the actual smuggling or tax evasion had been established by the investigation. On the basis of these findings, the court sentenced the applicant to three years’ imprisonment for the negligent performance of his professional duties and to a fine of UAH 400. At the same time, the court acquitted the applicant of other charges. By the same decision, the applicant was absolved from this sentence under the Amnesty Law of 11 May 2000. This decision was not appealed and became final on 14 November 2000. 11. On an unspecified date, the President of the Chernigiv Regional Court lodged a request for a supervisory review of the judgment of 6 November 2000, on the grounds of an erroneous qualification of the applicant’s actions and his unreasonable acquittal on the other criminal charges brought by the prosecution. The President also noted that the sentence was too lenient. 12. On 25 December 2000 the Presidium of the Chernigiv Regional Court allowed the request of its President, quashed the judgment of 6 November 2000, and remitted the case for a fresh consideration. The court instructed the first instance court to examine more thoroughly the existing evidence in the case and to conduct additional, more comprehensive interrogations of the accused and the witnesses. 13. On 29 January 2001 the Novozavodsky District Court of Chernigiv considered the case anew and sentenced the applicant to five years’ imprisonment, suspended for two years pending probation, and a fine of UAH 1,000. The court found the applicant guilty of aiding and abetting in smuggling, an abuse of power and fraud. The court acquitted the applicant of aiding and abetting tax evasion, since all the smuggled goods had been seized by the law enforcement bodies and no profit had been made by anyone selling them. 14. On 1 March 2001 the Criminal Chamber of the Chernigiv Regional Court upheld the decision of the first instance court. The former found that the first instance court had correctly qualified the applicant’s actions. This decision was final. 15. On an unspecified date, the President of the Chernigiv Regional Court lodged a request for a supervisory review of the judgments of 29 January and 1 March 2001, on the ground that the courts had not followed the instructions given in the previous decision of the Presidium of the Chernigiv Regional Court of 25 December 2000 about the qualification of the applicant’s actions and the severity of the sentence. 16. On 19 March 2001 the Presidium of the Chernigiv Regional Court chaired by the President allowed the request, quashed the decision of 29 January 2001, and remitted the case for a fresh consideration. The Presidium found that the first instance court had not followed the earlier instructions and that the sentence was too lenient. 17. On 2 October 2001 the Novozavodsky District Court of Chernigiv considered the case anew, found the applicant guilty of all charges and sentenced him to five years’ imprisonment. 18. On 9 July 2002 the Supreme Court allowed the applicant’s cassation appeal and changed the decision of the first instance court, sentencing the applicant to two years’ imprisonment for the negligent performance of his professional duties. The court noted that no criminal intent in the applicant’s actions could be established and, given the lapse of time, it seemed improbable that any other offenders, who had been directly involved in smuggling, could be found. Therefore, the court acquitted the applicant of the other charges (aiding and abetting in smuggling and tax evasion) for a lack of corpus delicti. By the same decision, the applicant was absolved from his sentence under the Amnesty Law of 11 May 2000. 19. At the material time, Chapter 31 of the Code of Criminal Procedure allowed a final and binding judgment to be subject to a supervisory review. The final judgment in a case could be appealed under the supervisory review procedure by the President of a Regional Court or the Supreme Court of Ukraine, the Regional Prosecutor or the Prosecutor General of Ukraine or their Deputies (Article 384), and had to be considered by the Regional Court or the Supreme Court (Article 388). Under Article 385, if the appeal against the final judgment was to the detriment of the person thereby convicted or acquitted, it could be lodged only within a year after the impugned judgment had come into force. Otherwise, the supervisory review appeal could be lodged at any time. The supervisory review procedure was repealed in June 2001.