CASE OF ROSTOVTSEV v. UKRAINE
Violation of Article 2 of Protocol No. 7 - Right of appeal in criminal matters (Article 2 of Protocol No. 7 - Review of conviction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)
Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano
5. 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 singlejudge 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.