KUPINSKYY v. UKRAINE

Judgment Date10 November 2022
ECLIECLI:CE:ECHR:2022:1110JUD000508418
CounselPROTSENKO O.O. ; TARAKHKALO M.O.
Date10 November 2022
Application Number5084/18
CourtFifth Section (European Court of Human Rights)
Respondent StateUcrania
Applied Rules3;7;7-1;41

FIFTH SECTION

CASE OF KUPINSKYY v. UKRAINE

(Application no. 5084/18)

JUDGMENT

Art 7 • Art 3 • Heavier penalty • Inhuman or degrading punishment • Conversion, upon prisoner’s transfer, of a foreign reducible life sentence into an irreducible one due to unavailability of parole for life prisoners in his home State • Significant change of the scope of the penalty by the domestic courts, going beyond the mere measures of enforcement and thus rendering Art 7 applicable

STRASBOURG

10 November 2022

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.


In the case of Kupinskyy v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

Síofra O’Leary, President,

Stéphanie Mourou-Vikström,

Lətif Hüseynov,

Lado Chanturia,

Arnfinn Bårdsen,

Mattias Guyomar,

Mykola Gnatovskyy, judges,

and Victor Soloveytchik, Section Registrar,

Having regard to:

the application (no. 5084/18) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Sergiy Onisiyevych Kupinskyy (“the applicant”), on 15 January 2018;

the decision to give notice to the Ukrainian Government (“the Government”) of the complaints concerning the irreducibility of the applicant’s life sentence under Articles 3 and 7 of the Convention and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated in private on 4 October 2022,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1. The applicant complained that the reducible life sentence imposed on him by the Hungarian courts was converted into a de facto irreducible life sentence by the Ukrainian courts in violation of Article 7 of the Convention. He also complained that his irreducible life sentence was contrary to Article 3 of the Convention.

THE FACTS

2. The applicant was born in 1973 and is serving his life sentence in the Izyaslav Correctional Colony, Ukraine. The applicant was represented by Ms O.O. Protsenko and Mr M.O. Tarakhkalo, lawyers practising in Kyiv, Ukraine.

3. The Government were represented by their Acting Agent, Ms O.V. Davydchuk, from the Ministry of Justice.

4. The facts of the case may be summarised as follows.

5. On 8 December 1999 the applicant was arrested in Hungary on suspicion of having committed a double murder with Mr K.

6. On 21 March 2002 the Békés District Court (Hungary) found the applicant and his accomplice K. guilty of conspiracy to commit premeditated double murder for motives of personal gain, the offence being committed on 11 November 1999. The applicant was sentenced to life imprisonment with the possibility of release on parole after serving twenty years of imprisonment and being deported.

7. On 21 August 2003 the Szeged Court of Appeal (Hungary) upheld the judgment of 21 March 2002.

8. On 6 May 2004 the Hungarian Ministry of Justice initiated the procedure for the applicant’s transfer to Ukraine, his home country, to serve his sentence, on the basis of the Convention on the Transfer of Sentenced Persons 1983 (“the 1983 Convention”). That procedure, which required the applicant’s consent, failed for want of such consent.

9. On 23 January 2006 the Hungarian Ministry of Justice initiated another procedure for the applicant’s transfer to Ukraine under the Additional Protocol to the 1983 Convention. That procedure did not require the consent of the person who was to be transferred (see paragraph 34 below).

10. On 8 May 2007 the applicant was transferred to Ukraine.

11. On 14 June 2007 the request for enforcement of the applicant’s sentence was sent to the Supreme Court of Ukraine.

12. On 26 September 2007 the Zakarpattya Regional Court of Appeal recognised the sentence imposed on the applicant by the Hungarian courts. The appellate court noted that the classification of the applicant’s actions fully corresponded to the qualifying features contained in Article 93 of the Criminal Code of 1960 and was punishable by the death penalty, which was a more serious punishment than life imprisonment. It further noted that at the time of the conversion of the applicant’s sentence, the new Criminal Code of 2001 was in force and Article 115 of that Code provided for life imprisonment for the same crime. The court thus decided that the applicant should be considered guilty under Article 115 § 2 (1), (6) and (12)...

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