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JUDGMENT
STRASBOURG
12 July 2016
This judgment will become final in the circumstances set out in Article 44
2 of the Convention. It may be subject to editorial revision.
PROCEDURE
1. The case originated in an application (no. 8927/11) 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 Vladimir Nikolayevich Ruban (the applicant), on
15 October 2010.
2. The applicant, who had been granted legal aid, was represented by
Ms N. Burns, a lawyer practising in Wembley, London. The Ukrainian
Government (the Government) were represented most recently by their
Acting Agent, Ms O. Davydchuk of the Ministry of Justice.
3. The applicant alleged, in particular, that in sentencing him the
domestic courts had not applied the most lenient criminal provisions, in
violation of Article 7 of the Convention.
4. On 6 January 2014 the above complaint under Article 7 was
communicated to the Government and the remainder of the application was
declared inadmissible pursuant to Rule 54 3 of the Rules of Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant, Mr Vladimir Nikolayevich Ruban, is a Ukrainian
national, who was born in 1972 and is currently serving a life sentence.
4. If a law on criminal liability has been amended several times after the person had
committed the act foreseen by this Code, the law which decriminalises an act,
mitigates criminal liability or otherwise improves the situation of a person shall have
retroactive effect.
In addition, the Constitutional Court considers that after its decision of 29 December
1999 the Code of 1960 did not become a new law that mitigated criminal liability of
individuals who had committed particularly serious crimes ...
The Constitutional Court proceeds from the basis that paragraph 4 of Article 5 of the
[Criminal] Code of 2001 provides that [the Code] could be changed only by another
law on criminal liability and not by a decision of the Constitutional Court of Ukraine,
which is authorised only to declare provisions of the law on criminal responsibility
unconstitutional.
Moreover, Ukraine committed itself to ratify within three years from the time of
accession (9 November 1995) Protocol No. 6 of the European Convention on Human
Rights on the abolition of the death penalty; the deadline is now over and the protocol
has not been ratified
...
3. Moreover, it appears from the aide-mmoire submitted by the Ukrainian
delegation on 22 June 1999, that the following developments took place recently:
...
- on 14 June 1999, the Constitutional Court began to examine a motion forwarded
by parliamentarians on the initiative of the Ukrainian delegation to the Council of
Europe regarding the unconstitutionality of the death penalty;
...
4. This is the reason why the Assembly decides that it would be appropriate to start
at the first part of the 2000 Ordinary Session, in accordance with Rule 6 of its Rules of
Procedure, the procedure aiming at suspending the rights of the members of the
Ukrainian delegation to table official documents in the sense of Rule 23 of the Rules
of Procedure, take on duties and vote in the Assembly and its bodies, while
maintaining those members rights to attend and to speak at Assembly part-sessions
and meetings of its bodies, unless further developments regarded as substantial
progress in the sense of Resolution 1179 of January 1999 have taken place.
"I trust that, encouraged by this success, the Ukrainian authorities will now keep
the momentum and continue to take the initiatives necessary to complete the process
of democratic reforms", the President concluded.
Resolution 1194 stated that the Ukrainian authorities, including the Parliament -the
Verkhovna Rada - were responsible to a great extent for the failure to respect their
commitments and obligations as a member of the Council of Europe. Further progress
was necessary to bring the Ukrainian legislation into conformity with European
standards and to ensure that the Ukrainian authorities observe these principles in their
practical work.
-----------(*) President Lord Russell-Johnston was formally informed about these
developments yesterday by a letter of Oleksandr TKACHENKO, President of the
Ukrainian Parliament.
THE LAW
ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION
31. The applicant maintained that in his case the courts should have
applied the most favourable wording of the relevant provisions of the
Criminal Code, which was that which had been in place between
29 December 1999 and 29 March 2000, when the death penalty had already
been abolished and life imprisonment had not yet been introduced. Failure
to do so, in his opinion, violated Article 7 of the Convention, which reads as
follows:
1. No one shall be held guilty of any criminal offence on account of any act or
omission which did not constitute a criminal offence under national or international
law at the time when it was committed. Nor shall a heavier penalty be imposed than
the one that was applicable at the time the criminal offence was committed.
2. This article shall not prejudice the trial and punishment of any person for any act
or omission which, at the time when it was committed, was criminal according to the
general principles of law recognised by civilised nations.
A. Admissibility
32. The parties made no objections as to the admissibility of this
complaint.
33. The Court notes that this complaint 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. Merits
1. The parties submissions
(a) The applicant
36. The Government maintained that the applicant had interpreted the
domestic law incorrectly. They noted that after the decision of the
Constitutional Court of 29 December 1999 no new law had been created.
They stated that the criminal law could only be changed by the Verkhovna
Rada and that the provisions for aggravated murder had not lost their
alternative character. They considered that the period after 29 December
1999 had been given to the Verkhovna Rada in order to bring the
1960 Criminal Code into line with the decision of 29 December 1999. They
referred to the decision of the Constitutional Court of 26 January 2011
(cited above) in support of their argument. They maintained that the
1960 Criminal Code had only changed and become a new law after the
introduction of amendments by the Verkhovna Rada which had come into
force on 29 March 2000. The Government concluded that the fact that the
domestic courts had sentenced the applicant to life imprisonment had not
violated the principle of retroactivity of the more lenient version of the 1960
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37. The Court first reiterates that the guarantee enshrined in Article 7,
which is an essential element of the rule of law, occupies a prominent place
in the Convention system of protection, as is underlined by the fact that no
derogation from it is permissible under Article 15 in time of war or other
public emergency. It should be construed and applied, as follows from its
object and purpose, so as to provide effective safeguards against arbitrary
prosecution, conviction and punishment. Accordingly, Article 7 is not
confined to prohibiting the retrospective application of the criminal law to
an accuseds disadvantage: it also embodies, more generally, the principle
that only the law can define a crime and prescribe a penalty (nullum crimen,
nulla poena sine lege) and the principle that the criminal law must not be
extensively construed to an accuseds detriment, for instance by analogy
(Kononov v. Latvia [GC], no. 36376/04, 185, ECHR 2010; Maktouf and
Damjanovi v. Bosnia and Herzegovina [GC], nos. 2312/08 and 34179/08,
66, ECHR 2013 (extracts)). Article 7 1 guarantees not only the principle
of non-retrospectiveness of more stringent criminal laws but also, implicitly,
the principle of retrospectiveness of the more lenient criminal law; in other
words, where there are differences between the criminal law in force at the
time of the commission of an offence and subsequent criminal laws enacted
before a final judgment is rendered, the courts must apply the law whose
provisions are most favourable to the defendant (see Scoppola v. Italy
(no. 2) [GC], no. 10249/03, 109, 17 September 2009).
38. In the above Scoppola (no. 2) case ( 108) the Court also noted:
In the Courts opinion, it is consistent with the principle of the rule of law, of
which Article 7 forms an essential part, to expect a trial court to apply to each
punishable act the penalty which the legislator considers proportionate. Inflicting a
heavier penalty ... would amount to disregarding any legislative change favourable
to the accused which might have come in before the conviction and continuing to
impose penalties which the State and the community it represents now consider
excessive.
39. In the recent case of Gouarr Patte v. Andorra the Court extended
the guarantees of Article 7 to the possibility of retrospective revision of the
final sentence if the domestic law provided for such a possibility. In coming
to such conclusion, the Court relied on the choice of the legislator in
introducing retrospectiveness of more lenient punishments (Gouarr Patte
v. Andorra, no. 33427/10, 33 to 36, 12 January 2016).
40. The Court notes also that in the recent inadmissibility decision in the
case of Mikulovi and Vujisi v. Serbia ((dec.), nos. 49318/07 and
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law adopted by the Parliament which came into effect on 29 March 2000,
that is long before the applicants conviction, and which has been in place
ever since, did not upset the applicants rights as guaranteed by Article 7 of
the Convention. As the Court has found previously, the sentence of life
imprisonment is not a heavier sentence than the death penalty (see, among
many other authorities, Hummatov v. Azerbaijan (dec.), nos. 9852/03
and 13413/04, 18 May 2006; and Stepanenko and Ososkalo v. Ukraine
(dec.), nos. 31430/09 and 29104/11, 14 January 2014). Therefore, the
domestic courts, having sentenced the applicant to the life imprisonment,
which was an applicable penalty at the time of conviction, and not to the
death penalty, which was a relevant penalty at the time he had committed
the crime, did apply the more lenient punishment. It follows that there was
no violation of Article 7 of the Convention.
Claudia Westerdiek
Registrar
Angelika Nuberger
President
A.N.
C.W.
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