Resolution of the Grand Chamber of the Supreme Court on the Possibility to Appeal Judgments on Application on Amnesty Issued at the Stage of Enforcing the Sentence

Taking into account Item 8 of Part 3 of Article 129 of the Constitution of Ukraine edited by the Law of Ukraine No. 1401-VIII of 2 June 2016 “On Amending the Constitution of Ukraine (Regarding Justice)”, an individual’s right to cassation appeal of a judgment in criminal proceedings shall have restricted nature and shall be implemented only in cases provided by the Criminal Procedure Code of Ukraine.

Judgments on the application of amnesty issued at the stage of enforcing the sentence may not be appealed in cassation court, since the CPC of Ukraine does not provide an individual’s right to their cassation appeal.

A complainant, in his cassation appeal, asks to cancel rulings of courts of first and appeal instances regarding the refusal to satisfy the motion on the application of Article 6 of the Law of Ukraine No. 1185-VII of 8 April 2014 “On the Amnesty in 2014” as for him at the stage of enforcing the sentence, to apply Article 6 of the Law of Ukraine No. 1185-VII as for him, to halve the unserved portion of his sentence under the judgment of the court of first instance.

By Item 8 of Part of Article 129 of the Constitution of Ukraine as applicable at the moment of lodging the cassation appeal, unlike its previous edition, it was stated that appeal procedure was obligatory for reviewing a judgment, whilst an individual’s right to cassation appeal of a judgment should be ensured under the circumstances provided by law.

Similarly, Article 14 of the Law of Ukraine No. 1402-VIII of 2 June 2016 “On the Judiciary and the Status of Judges” edited by the Law of Ukraine No. 2147-VIII of 3 October 2017 "On Amendments to the Commercial Procedural Code of Ukraine, the Civil Procedure Code of Ukraine, the Code of Administrative Proceedings of Ukraine and Other Legislative Acts" provides that parties to a case subject to consideration and other persons have the right to appeal review and in cases stipulated by law – to cassation.

Such approach to the procedure of appealing a judgment shall also be coordinated with the basic provisions of the case-law of the European Court of Human Rights. The establishment of relevant procedural filters for cassation at the normative level, for instance, the determination of judgments, which may be appealed in cassation procedure, is not contrary to the ECHR case-law.

The restrictions as for cassation appeal are provided by Article 424 of the CPC of Ukraine, the provisions of which establish the list of judgments of first and appeal instances courts to be challenged in cassation procedure, among which there are no procedural judgments issued by court in the procedure determined by Article 539 of the CPC of Ukraine and connected with the fulfillment of sentence.

The main feature, pursuant to which the grounds for cassation appeal of rulings of first instance court after their review in appeal procedure, as well as rulings of appeal court, are established, is determined by Part 2 of Article 424 of the CPC of Ukraine, particularly, if they impede the further criminal proceedings, except for circumstances provided by this Code.

Follow the link http://www.reyestr.court.gov.ua/Review/79445662 to see the full text of the Resolution of the Grand Chamber of the Supreme Code of 23 January 2019 in the case No. 738/1482/16-к (proceedings No. 13-38кс18).