CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ THE RIGHT OF APPEAL IN CRIMINAL MATTERS ȃ CASEǧLAW OF ECtHR … of the applicant before the Supreme Court, which held that it was not a serious offence and that the applicant should only be warned, not fined. The applicant argued that there was no possibility of appeal against the order finding her guilty of an administrative offence. The Government responded by arguing that the applicant had ultimately been exonerated from administrative liability and therefore there had been no violation of Article 2 of Protocol No. 7 to the ECHR. The ECtHR notes that Ukrainian law did not provide the applicant with an opportunity to appeal against her conviction. The ECtHR notes that the applicant was formally and effectively excluded from the review proceedings. In the ECtHR’s view, she cannot therefore be considered to have enjoyed a right of appeal against her conviction within the meaning of Article 2 of Protocol No. 7 to the ECHR. The ECtHR emphasises that the right to review is not absolute and that exceptions may apply, particularly in respect of offences of a less serious nature. However, the ECtHR stated that it could not ignore that the offence of which the applicant was convicted concerned petty theft and was not punishable by imprisonment. It therefore concluded that the offence was of a minor nature and that the applicant’s case fell within the exceptions allowed by Article 2(2) of Protocol No. 7 to the ECHR. The ECtHR therefore concluded that there had been no violation of Article 2 of Protocol No. 7 to the ECHR. 13 It can be deduced from the analysed decision that in the case of minor administrative offences, the so-called exclusion of Article 2 of Protocol No. 7 to the ECHR is activated. An example is, for example, petty theft, which is punishable by a fine, not by imprisonment, and which does not require the need for judicial review in the context of the appeal procedure. In Shvydka v. Ukraine , 14 the applicant Shvydka claimed a violation of her right to freedom of expression under Article 10 ECHR and objected to the fact that she was denied the right to appeal under Article 2 of Protocol No. 7 to the ECHR. According to the judgment, the applicant was guilty of separating a part of the ribbon with the inscription “President of Ukraine” from the ceremonial wreath laid by the then President of Ukraine, V.F. Yanukovych, at the monument during the Independence Day celebrations. The applicant was detained by the police for the offence of petty disorderly conduct or hooliganism. The Kyiv District Court found the applicant guilty and imposed a sentence of 10 days’ administrative detention. The applicant appealed, but the Court of Appeal upheld the decision of the first instance court, and the applicant served her full prison sentence pending the Court of Appeal’s decision. The applicant argued that the late review of her appeal, although in accordance with established procedure, undermined her right to appeal because it occurred after her sentence had been served in full. The delayed examination of her appeal effectively nullified its effect on the outcome of the administrative offence proceedings against her. The government argued only that her appeal had been properly reviewed. The applicant’s appeal against the judgment, which was lodged on the same day, did not have suspensive effect and the sentence imposed was executed immediately. This practice was established under the Administrative Offences Act, which provided for the immediate execution of a sentence only where it was a deprivation of liberty. In the present case, however, the appellate review did not take place until after the imprisonment sentence imposed on the applicant by the court of first instance had been fully served. 13 ECtHR decision in Luchaninova v. Ukraine , of 9 June 2011, application no. 16347/02, §§ 68–73. 14 ECtHR decision in Shvydka v. Ukraine , of 30 October 2014, application no. 17888/12.

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