CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 23 novembre 2023

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Nesterenko, a lawyer practising in Kyiv; the decision to give notice of the application to the Ukrainian Government (“the Government”), represented, most recently, by their Agent, Ms   M.   Sokorenko; the parties’ observations; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The case concerns the applicant’s conviction for desertion, allegedly in breach of the nullum crimen sine lege principle enshrined in Article   7 and the fair trial requirements set out in Article 6 § 1 of the Convention. THE CIRCUMSTANCES OF THE CASE 2.     In connection with the events described in Ukraine v.   Russia (re   Crimea) ((dec.) ([GC], nos. 20958/14 and 38334/18, 16 December 2020), partial mobilisation of the military was announced in Ukraine on 17   March   2014 by presidential decree, which was approved by Law no. 1126-VII on the same date. Article 5 of the decree provided for the call-up of persons liable for military service. 3.     On 20 March 2014, in accordance with the above-mentioned decree, the applicant, a civilian liable for military service and call-up, was summoned to the local military commissariat. On 21 March 2014 he was assigned to the staff of a specific military unit, with the military rank of senior sergeant. On   29 March 2014 he left the military unit, together with some other servicemen who had also been called up. By an order of 1 April 2014 the commander of the military unit declared that the applicant had abandoned the unit without permission and ordered the payment of his salary to be discontinued. 4.     On 7 December 2015 the Berdychiv City Court found the applicant guilty of desertion under Article 408 § 1 of the Criminal Code of Ukraine and sentenced him to three years’ imprisonment, suspended with a probationary period of one year and six months. On 22 March and 11 November 2016 the Zhytomyr Regional Court of Appeal quashed the Berdychiv City Court’s decision and discontinued the criminal proceedings against the applicant for the absence of the constituent elements of a criminal offence. However, both of those rulings were quashed by the Higher Specialised Civil and Criminal Court (on 20 September 2016 and 22 June 2017 respectively), which remitted the case to the appellate court for fresh examination. After examining the case for a third time, on 25 September 2017 the Court of Appeal upheld the judgment of 7 December 2015. On 31 May 2018 the Criminal Cassation Court of the Supreme Court (which had replaced the Higher Specialised Civil and Criminal Court following a judiciary reform) rejected the applicant’s appeal on points of law and his conviction became final. 5.     The applicant raised the following arguments in his defence. Firstly, the summons he had received referred to a ten-day military training. He had not taken a military oath. He did not therefore have the status of serviceman and could not be held liable under Article 408 of the Criminal Code. Secondly, he had been found guilty of evading “military service upon mobilisation during a special period”, while at the material time (on 29   March 2014) this type of military service was not on the list of the existing types set out in Article 2 § 4 of the Law “On   Military Duty   and Military Service”. It was added to that list only on 1 April 2014 with the entry into force of legislative amendments to that effect. 6.     The domestic courts dismissed those arguments as unfounded on the following grounds. Firstly, the section of the summons referring to a ten-day training was addressed to the applicant’s employer and was therefore irrelevant; in any event, the applicant had left the military unit before the end of the ten-day period. Secondly, the courts referred to the testimonies of the military unit’s senior officials, who submitted that they had explained to the applicant that he had been called to the army following the announcement of a partial mobilisation. The commanders further stated that no permission had been given to the applicant and others to leave. They had not been prevented from leaving, however, as there had been an imminent risk of a riot. Thirdly, the courts observed that the applicant had effectively performed military service and had been paid a salary; therefore, even though he had not taken the oath, he was a serviceman within the meaning of Article 1 §   9 of the Law “On   Military Duty   and Military Service”. Lastly, the above-mentioned presidential decree of 17 March 2014 and the Law “On Mobilisation Training and Mobilisation” (the “Mobilisation Law”), as in force at the material time, did provide for a type of military service classified as “service upon mobilisation during a special period”. RELEVANT DOMESTIC LAW Criminal Code   of Ukraine of 2001 (as in force at the material time) 7.     Article 408 § 1 provided that   the unauthorised abandonment of a military unit or place of one’s military service with a view to evading military service was punishable by imprisonment for a term of from two to five years. 8.     Under Article 401 military offences were defined as the offences listed in section XIX of the Code and infringing the established lawful order of performance or execution of military service, committed by military service personnel and persons liable for military service and call-up   during a training (or training review) session or a special assembly. Law of Ukraine “On   Military Duty   and Military Service”, no. 2232-XII of 25 March 1992 (as in force at the material time) 9.     Under Article 1 § 9 service personnel were defined as persons who performed military service. 10.     Article 2 § 4 set out a list of the different types of military service: mandatory fixed-term service, contractual military service, studies in a   military school and military service of officers upon conscription. On   1   April 2014 this provision was amended to include “military service upon mobilisation during a special period” (Law no. 1169-VII of 27   March   2014). 11.     In accordance with Article 39 the call-up of reservists and individuals liable for military service during mobilisation was to be carried out in accordance with the procedure set out in the   Mobilisation Law. Law of Ukraine “On Mobilisation Training and Mobilisation”, no.   3543-XII of 21 October 1993 (as in force at the material time) 12.     In accordance with Article 4 § 5 the type, scope, procedure and term of the   mobilisation were to be determined by the President of Ukraine. 13.     Under Article 22 §§ 3 and 5, during a mobilisation, citizens were required to report to military units or assembly points of the military commissariats   within the deadline indicated in the summons. The call-up of citizens for military service during mobilisation was to be carried out by local executive   bodies through military commissariats. Regulation on the performance of military service in the armed forces of Ukraine by citizens of Ukraine, approved by Presidential Decree   no.   1153/2008   of   10   December   2008 14.     Under Article 252 § 1, in the event that mobilisation is announced , individuals liable to be drafted and citizens of conscription age are to be called up for military service.   THE COURT’S ASSESSMENT A. Alleged violation of Article 7 of the Convention 15.     The applicant complained that his conviction had been arbitrary and in breach of the principle of non-retroactivity enshrined in Article 7. 16.     The general principles set out in the Court’s case-law under Article 7 of the Convention are summarised in Del Río Prada v. Spain ([GC], no.   42750/09, §§ 91-93, ECHR 2013) and, most recently, in   Yüksel Yalçınkaya v. Türkiye ([GC], no. 15669/20, §§ 237-242, 26 September 2023). In   particular, Article 7 should be construed and applied in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment. 17.     The Court’s function under Article 7 § 1 of the Convention is therefore to assess whether there was a sufficiently clear legal basis, having regard to the applicable law at the material time, for the applicant’s conviction. In particular, the Court will examine whether the applicant’s conviction could reasonably have been foreseen by him (see Vasiliauskas v. Lithuania [GC], no. 35343/05, § 162, ECHR 2015). 18.     The Court, firstly, notes that Article 408 § 1 of the Criminal Code was accessible to the applicant and formulated with sufficient precision for him to be able to regulate his conduct. 19.     Although the applicant argued that he had been called up for military training and not military service, the domestic courts attached decisive weight to the consistent testimonies of the commanders who stated that they had clarified to the newly mobilised staff of their military unit, including the applicant, their status, notably that they were service personnel drafted to the army upon mobilisation in accordance with the presidential decree of 17   March 2014. On that basis, the domestic courts found it established that the applicant had intended to evade military service – an element necessary for the applicant to be convicted of the criminal offence in question. 20.     In this connection, the Court reiterates that it is not its task to substitute its own assessment of the facts for that of the domestic courts, and in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 150, 20 March 2018). 21.     The Court is, furthermore, unconvinced by the applicant’s argument that at the material time (on 29 March 2014) domestic law did not provide for “military service upon mobilisation during a special period”. The Court notes that the domestic courts rejected that argument by referring to the   Mobilisation Law and the presidential decree of 17 March 2014. It is true that the list contained in Article 2 § 4 of the Law “On   Military Duty   and Military Service” (see paragraph 11 above) was amended to include this type of military service on 1 April 2014. Nevertheless, it is clear that domestic law provided for military service upon mobilisation even before the legislative amendment in question had been adopted (see paragraphs 12-15 above). 22.     The applicant could therefore have reasonably foreseen that his conduct would constitute an offence under Article 408 § 1 of the Criminal Code. 23.     In sum, the Court finds no basis to conclude that the decision of the domestic courts to convict the applicant was affected by any element of arbitrariness or that it was otherwise manifestly unreasonable (see   Vasiliauskas , cited above, §   160). 24.     Accordingly, this complaint is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and must be rejected pursuant to Article 35 § 4 of the Convention. B. Alleged violation of Article 6 of the Convention 25.     The applicant complained that the domestic courts had not truly heard and examined his arguments, rendering his trial unfair. 26.     The Court reiterates that it should not act as a   fourth instance   and will not therefore question under Article 6 § 1 the judgment of the national courts, unless their findings can be regarded as arbitrary or manifestly unreasonable (see   Bochan v.   Ukraine (no. 2)   [GC], no.   22251/08 , § 61, ECHR 2015). 27.     Turning to the present case, the Court finds that the applicant had the benefit of adversarial proceedings, in which he was able to adduce evidence. His arguments were properly examined by the courts and dismissed in well-reasoned decisions. The courts’ conclusions and their interpretation of the relevant law cannot be regarded as manifestly arbitrary or unreasonable. 28.     In his observations of 22 February 2022 the applicant argued that the domestic courts had relied on the testimonies of military staff who could not be regarded as unbiased. The Court observes, however, that the applicant did not raise this issue before the domestic courts. 29.     It follows that the present complaint is inadmissible under Article   35   §   3   (a) of the Convention as manifestly ill-founded and must be rejected pursuant to Article 35 § 4. 30.     In his observations of 22 February 2022 the applicant complained, for the first time, that the criminal proceedings against him had breached the “reasonable time” requirement. 31.     The final decision in the proceedings in issue was delivered on 31   May   2018. It follows that this complaint is inadmissible under Article   35 § 1 of the Convention for non-compliance with the six-month rule and must therefore be rejected pursuant to Article 35 § 4 thereof. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 14 December 2023. {signature_   Martina Keller   Lado Chanturia   Deputy Registrar   President