CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ THE RIGHT OF APPEAL IN CRIMINAL MATTERS ȃ CASEǧLAW OF ECtHR … continental law, where the effectiveness of appeals is limited by other instruments of criminal repression. The series of Ukrainian cases is extended by the ECtHR decision in Rostovtsev v. Ukraine . 18 There, the applicant claimed that he was deprived of the right to appeal against his conviction because he had been convicted by a district court in Kiev for illegal possession of large quantities of narcotics. The applicant claimed that he was in pain, taking Tramadol (a narcotic-like painkiller) which he had bought from a street dealer. The applicant eventually pleaded guilty and expressed remorse before the court but was nevertheless sentenced by the court to 2 years and 6 months imprisonment. The applicant appealed against such a harsh sentence and the Court of Appeal dismissed his appeal, as the Court of Appeal held that the grounds raised by the applicant could not be applied. The applicant lodged an appeal which was dismissed as the Court of Appeal found the Court of Appeal’s decision to be in accordance with the law. The applicant argued that he was deprived of the right to appeal against the judgment in his criminal case in view of the wording of Article 2 of Protocol No. 7 to the ECHR. The applicant submitted that he was entitled in principle to have his case reviewed on appeal. The fact that he could not have his case so reviewed stemmed from the fact that he had admitted the circumstances on which his conviction was based, having agreed to the use of the summary form of proceedings. The applicant submitted that, although he had waived certain procedural rights, that did not mean that he had also waived his right to appeal. The ECtHR assessed the case on the basis of whether the substance of the applicant’s right of appeal had been prejudiced by the rejection of his appeal as inadmissible. It then considered whether the refusal could be regarded as foreseeable. The ECtHR held that it could not be said that the applicant should have foreseen that, by admitting the facts established by the court during the proceedings, he would at the same time waive the possibility of appeal. Thus, the ECtHR concluded that the interpretation of the relevant domestic legislation adopted by the courts in the applicant’s case was not “foreseeable” and, in adopting it, the courts had violated the very essence of the applicant’s right to appeal. This, the ECtHR concluded, violated Article 2 of Protocol No. 7 to the ECHR. 19 The significance of this decision is that the need for review mechanisms is examined in great detail, even in the case of various departures from criminal proceedings. Even if a person confesses to an offence or declares that they have committed it, this must not mean that they automatically waive all review mechanisms. In case Mikhaylova v. Ukraine , 20 the applicant alleged that the court which convicted her of contempt was not impartial, that she had not had time to prepare her defence and that her right to legal aid under the Convention had not been respected. She further objected, in the context of Article 2 of Protocol No. 7 to the ECHR, to the fact that her conviction could not be appealed. The facts were that the company in charge was recovering arrears of utility bills, pursuing those arrears in court proceedings against the applicant, and in those proceedings the applicant verbally assaulted the judge. As a consequence of her actions, contempt proceedings 18 ECtHR decision in Rostovtsev v. Ukraine , of 25 July 2017, application no. 2728/16. 19 ECtHR decision in Rostovtsev v. Ukraine , of 25 July 2017, application no. 2728/16, §§ 27–38. 20 ECtHR decision in Mikhaylova v. Ukraine , of 6 March 2018, application no. 10644/08.

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