CYIL vol. 15 (2024)

JIŘÍ MULÁK Again, the ECtHR stated that it is inconceivable how this review could effectively remedy the defects of the lower court’s decision at a stage when the sentence has already been fully served. It therefore again held in the case that there had been a violation of Article 2 of Protocol No. 7 to the ECHR. 15 In Ruslan Yakovenko v. Ukraine , 16 the applicant challenged the illegality of his detention and the violation of his right to appeal in criminal proceedings in which the court found him guilty of grievous bodily harm and imposed a sentence of 4 years and 7 months’ imprisonment. The Court also decided that the applicant should remain in precautionary detention pending the final judgment. An appeal was allowed against the judgment within 15 days. The applicant’s lawyer filed an application for immediate release from custody, and the 15-day time limit for filing an appeal subsequently expired. The prison administration declared that it could not release the applicant until the preventive measure was changed. The prison administration subsequently obtained a court order to execute the final judgment and only then was the applicant released. The applicant, referring to Article 2 of Protocol No. 7 to the ECHR, argued that he had been effectively deprived of his right to appeal against the judgment in his criminal case. He argued that he was effectively obliged to choose between exercising his right to appeal against the judgment in his criminal case on the one hand and his liberty on the other (in other words, if he had chosen to appeal, it would have delayed his release considerably). The Government argued that the applicant had a right to appeal but chose not to exercise that right, even though Ukrainian law provided a clear procedure for appealing against a criminal conviction. The ECtHR therefore considered whether the applicant had been prevented from exercising his right to appeal and, if so, whether this impediment could be regarded as a violation of Article 2 of Protocol No. 7 to the ECHR. The national courts considered it necessary to keep the applicant in custody as a precautionary measure until the judgment of the Court of First Instance had become final, even after the prison sentence imposed on him by that judgment had expired. The ECtHR thus examined, without an appeal, the 12-day period in question lasted and, if the applicant had decided to appeal, whether this would have delayed for an unspecified period the time at which the judgment would have become final. In other words, whether those facts would have delayed his release. The ECtHR agreed with the applicant’s argument that the exercise of his right to appeal in this case would be at the cost of his liberty, particularly given that the length of his detention would be uncertain. This was a clear violation of Article 2 of Protocol No. 7 to the ECHR. 17 The main significance of this ECtHR decision is that the right of appeal should not worsen the applicant’s position. That is to say, the effectiveness of his right of appeal to a guilty verdict should not criminally worsen his position as a detainee. In the present case, release from custody was fixed on the entry into force of the court’s judgment. That is to say, if he had appealed against a judgment which had not yet become final, the suspensive effect of the appeal would have been activated, the judgment would not have become final, and the applicant would have remained in detention. This is an unconventional legal construction in

15 ECtHR decision in Shvydka v. Ukraine , of 30 October 2014, application no. 17888/12, §§ 46–55. 16 ECtHR decision in Ruslan Yakovenko v. Ukraine , of 4 June 2015, application no. 5425/11. 17 ECtHR decision in Ruslan Yakovenko v. Ukraine , of 4 June 2015, application no. 5425/11, §§ 74–83.

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