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FIFTH
SECTION
CASE OF BURYAK v. UKRAINE
(Application
no. 32764/06)
JUDGMENT
STRASBOURG
20
December 2011
This
judgment is final but it may be subject to editorial revision.
In the case of Buryak v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Mark
Villiger,
President,
Ganna
Yudkivska,
André
Potocki, judges,
and
Stephen Phillips,
Deputy Section Registrar,
Having
deliberated in private on 29 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an
application (no. 32764/06) 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 Oleksandr Pavlovych Buryak (“the
applicant”), on 14 July 2006.
2. The
Ukrainian Government (“the Government”) were represented
by their Agent, Ms V. Lutkovska, of the Ministry of Justice.
- On
10 September 2010 the
Court decided to give notice of the application to the Government.
THE FACTS
- The
applicant was born in 1982 and lives in the Kyiv
Region.
- On
14 July 1999, in the presence of others, the applicant shot Mr P. who
eventually died in a hospital.
- On
15 July 1999 the police started criminal investigations into the
event.
- On
19 July 1999 the applicant was accused of inflicting bodily injuries;
on the same day he gave an undertaking not to abscond.
- On
15 October 1999 the police also instituted criminal proceedings
against the applicant on suspicion of unlawful possession of arms.
- On
20 October 1999 the police changed the legal qualification of the
applicant’s actions and accused him of murder.
- On
24 October 1999 the police accused the applicant of murder and
unlawful possession of arms.
- On
29 October 1999 the police submitted the criminal case to the
Kyevo-Svyatoshynskyy District Court for trial.
- On
29 February 2000 the court convicted the applicant of premeditated
murder committed in the state of extreme emotional disturbance and
sentenced him to three years and six months’ imprisonment.
- On
12 April 2000 the Kyiv Regional Court upheld that judgment, which
thus became final.
- On
6 September 2000 the prosecutor lodged a protest against the
decisions in the case. On 12 October 2000 the Presidium of the Kyiv
Regional Court rejected the protest.
- On
6 January 2001 the Deputy Prosecutor General lodged a new protest.
- On
25 January 2001 the Supreme Court found that the lower court had not
duly established the motive of the crime, quashed the decisions in
the case and remitted it to the prosecutors for additional
investigations.
- On
12 July 2001 the investigations were completed and on 19 July 2001
the case was submitted to the Kyevo-Svyatoshynskyy Court for trial.
- On
12 December 2001 the court convicted the applicant of premeditated
murder and sentenced him to seven years’ imprisonment.
- On
10 April 2002 the Kyiv Regional Court of Appeal changed that
judgment. On 17 September 2002 the Supreme Court found that the court
of appeal had not duly established the motive of the crime and
remitted the case to that court for fresh consideration.
- On
6 November 2002 the Court of Appeal, in the applicant’s
absence, upheld the judgment of 12 December 2001 with some minor
modifications.
- On
10 June 2003 the Supreme Court quashed the decision of 6 November
2002 as it had been taken in the applicant’s absence and
remitted the case to the Court of Appeal for fresh consideration.
- On
13 August 2003 the Court of Appeal changed the judgment of
12 December 2001 and sentenced the applicant to four years’
imprisonment for murder committed in the state of extreme
disturbance. By the same judgment the court amnestied the applicant.
- On
1 April 2004 the Supreme Court found that the Court of Appeal had not
duly established the motive of the crime, quashed this decision and
remitted the case for fresh consideration on appeal.
- On
1 October 2004 the Court of Appeal sentenced the applicant to four
years’ imprisonment and changed the judgment of 12 December
2001.
- On
17 November 2005 the Supreme Court found that the severity of the
applicant’s sentence did not correspond to the gravity of the
crime, quashed the decision of 1 October 2004 and remitted the case
for fresh consideration to the Court of Appeal.
- On
6 February 2006 the Court of Appeal upheld the judgement of
12 December 2001 with minor modifications.
- On
6 April 2007 the Supreme Court rejected the appeal in cassation
lodged by the applicant’s lawyer.
- In
the course of the proceedings nine forensic examinations were
ordered. Four times the applicant was placed in detention after
conviction. Subsequently, he was released twice following the
annulment of the convictions and twice on specific conditions. There
were seven witnesses and a number of experts heard by the courts. The
applicant and his lawyer lodged four procedural requests and four
appeals against the courts’ judgments and decisions.
THE LAW
I. LENGTH OF PROCEEDINGS COMPLAINT
- The
applicant complained that the length of the
proceedings had been incompatible with the “reasonable time”
requirement, laid down in Article 6 § 1 of the Convention, which
reads as follows:
“In the determination of ... any
criminal charge against him everyone is entitled to a ... hearing
within a reasonable time by [a] ... tribunal...”
- The
Government disagreed. They submitted that the length of the
proceedings in the applicant’s case had been reasonable. In the
Government’s view, the case was complex, given the nature of
the charges brought against the applicant, the number of witnesses
and experts involved and the need to carry out forensic examinations.
The Government also noted that the protraction of the proceedings had
been due to the conduct of the applicant and his lawyer, who had
failed to appear and had lodged various procedural requests, while
the national authorities had acted with due diligence.
- The
Court notes that the period to be taken into consideration began on
15 July 1999 and ended on 6 April 2007, excluding the interval from
12 April 2000 to 25 January 2001 when no proceedings were
pending. It thus lasted about seven years for three levels of
jurisdiction.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities (see, among
many other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999-II).
- Turning
to the facts of the present case, the Court observes that it was not
particularly complex, as it concerned charges of murder and unlawful
possession of arms of which there were eyewitnesses. The Court also
observes that the applicant and his lawyer did not contribute
significantly to the length of the proceedings.
- As
to the conduct of the authorities, the Court notes that on four
occasions the higher courts remitted the case to lower courts due to
factual and procedural omissions and on one occasion the case was
sent to the prosecutors for additional investigations. In this
respect, the Court reiterates that since remittal is usually ordered
because of errors committed by lower courts, the repetition of such
orders within one set of proceedings discloses a serious deficiency
in the judicial system (Wierciszewska v. Poland, no. 41431/98,
§ 46, 25 November 2003).
- The Court has frequently found violations of Article 6
§ 1 of the Convention in cases raising issues similar to
the one in the present case (see Pélissier and Sassi,
cited above).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
- There
has accordingly been a breach of Article 6 § 1.
II. OTHER COMPLAINTS
- The
applicant complained under Article 6 § 1 of the Convention that
the Court of Appeal dealing with his case had been biased. In his
submissions dated 22 March 2011, the applicant further complained
under the same provision about a violation of the principle of legal
certainty as the judgments in his case had been quashed several
times. Relying on Article 13 of the Convention, he also complained of
the lack of domestic remedy for the excessive length of the criminal
proceedings against him.
- Having
carefully examined the remainder of the applicant’s complaints
in the light of all the material in its possession, and in so far as
the matter complained of is within its competence, the Court finds
that it does not disclose any appearance of a violation of the rights
and freedoms set out in the Convention or its Protocols.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 1, 3
(a) and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 10,000 euros (EUR) in respect
of non-pecuniary damage.
-
The Government contested that claim.
- The
Court, ruling on an equitable basis, awards the applicant
EUR 1,200 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant did not submit any claims under that
head. Therefore, the Court makes no award.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the applicant’s complaint under
Article 6 § 1 of the Convention concerning the excessive length
of the proceedings admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant,
within three months, EUR 1,200 (one thousand two hundred euros), plus
any tax that may be chargeable, in respect of non-pecuniary damage,
to be converted into the national currency at the rate applicable at
the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 20 December 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Mark
Villiger
Deputy Registrar President
