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FIFTH
SECTION
CASE OF BUROV v. UKRAINE
(Application
no. 14704/03)
JUDGMENT
STRASBOURG
17 March
2011
This
judgment is final but it may be subject to editorial revision
In the case of Burov v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Boštjan M. Zupančič,
President,
Ganna Yudkivska,
Angelika
Nußberger,
judges,
and Stephen Phillips,
Deputy Section Registrar,
Having
deliberated in private on 22 February 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 14704/03) 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 Sergey Nikolayevich Burov (“the applicant”),
on 8 April 2003.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
22 February 2010 the
President of the Fifth Section decided to
communicate to the Government the complaints under Articles 5 §
3 and 6 § 1 of the Convention concerning the length of the
applicant’s detention on remand and criminal proceedings
against him. In accordance with Protocol no. 14, the
application was allocated to a Committee of three Judges.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1962 and lives in Kharkiv, Ukraine.
A. Criminal proceedings against the applicant
- In
June 1995 a certain G. was murdered and criminal proceedings were
instituted.
- On
9 July 1995 the applicant was arrested on suspicion of having
committed the above-mentioned crime; on 11 July 1995 he was charged
with the above-mentioned crime and remanded in custody. Alongside the
applicant, three other persons (a certain B., K. and D., who were
also suspected of the crime and who had been present when G. had been
murdered) were also charged. At the later stage of the proceedings
the charges against the applicant were disjoined from the rest of the
charges and the outcome of the proceedings against B., K. and D. is
not clear.
- According to the applicant, he was ill-treated during
the initial period of the pre-trial investigation by the authorities
with the aim of obtaining a confession. It is not clear whether the
applicant complained of ill-treatment at the domestic level.
Furthermore, on 10 July 1995 he was not provided with a legal-aid
lawyer, notwithstanding his request. Apparently, the applicant was
legally represented from 18 July 1995.
- During
the pre-trial investigation B., K. and D. stated that the applicant
had murdered G. Later, B. and K. changed their statements in the
applicant’s favour, asserting that it was D. who had murdered
G.
- By
November 1995 the pre-trial investigation was completed and the case
was transferred to the Zhovtnevyy District Court of Kharkiv.
- On
6 February 1996 the court remitted the case for additional
investigation. On 9 April 1996 this decision was upheld by the
Kharkiv Regional Court.
- By
December 1996 the pre-trial investigation had been completed and the
case was transferred back to the Zhovtnevyy District Court of
Kharkiv.
- On
4 August 1998 the court remitted the case for additional
investigation. On 3 November 1998 this decision was upheld by the
Kharkiv Regional Court. On 19 February 1999 the presidium of the
latter court rejected the prosecutor’s protest against that
remittal.
- On
24 March 1999 the applicant was released subject to an undertaking
not to abscond. It was noted in the release decision that the
applicant had been detained for more than three years, the statutory
time limit for the applicant’s detention on remand had
already expired and there was no need for further detention given the
applicant’s permanent place of residence and other
circumstances of the case.
- On
5 July 1999 the pre-trial investigation was completed and the case
was transferred to the Leninskyy District Court of Kharkiv.
- On
12 October 2000 the applicant was again remanded in custody. The
aforesaid court held that the applicant had threatened his legal-aid
lawyer and, as the latter refused to defend him, it was the
applicant’s conduct which was thwarting the progress of the
case. It also referred to the severity of the charges against the
applicant and of the anticipated sentence.
- On
several occasions the hearings were postponed because of the accused,
victim’s, witnesses’ and defence lawyers’ failure
to appear before the trial court.
- On
25 December 2001, although the applicant pleaded not guilty, the
Leninskyy District Court of Kharkiv convicted him of murder and other
crimes and sentenced him to thirteen years’ imprisonment. In
doing so the court relied on statements by the accused, witness
testimonies, forensic reports and other pieces of evidence. In
particular, it established that on 20 June 1995, shortly after
midnight, the applicant, B., K. and D., having quarrelled with G.,
had taken the latter to a desolate place and beaten him. After that
the applicant had stabbed G. several times and he died. B., K. and D.
had buried G. to conceal the crime. The court heard, inter alia,
statements by B., K. and D. It found the statements by B. and K.
exonerating the applicant untrue, as inconsistent with other pieces
of indirect evidence.
- On
7 November 2002 the Kharkiv Regional Court of Appeal (before June
2001 the Kharkiv Regional Court) quashed this judgment because the
trial court had unlawfully refused to make an audio recording of the
hearings, and remitted the case for fresh consideration. It also
noted that during the retrial all the applicant’s submissions
should be duly examined.
- The
applicant appealed against this remittal but on 28 January 2003 the
Supreme Court of Ukraine rejected the applicant’s request for
leave to appeal in cassation.
- In
November 2002 the case was transferred to the Chervonozavodskyy
District Court of Kharkiv.
- During
the retrial the applicant maintained his “not guilty”
plea.
- Again,
as at the trial, the hearings were postponed on several occasions
because of the participants’ failure to appear before the
court.
- According
to the applicant, on several occasions he requested the trial court
to summon certain witnesses who in his view would prove his
innocence. In particular, on 31 March 2004 he requested the court to
summon over twenty witnesses, among whom were the experts who had
drew up forensic reports in the case, the prosecutors and the
investigators who had dealt with the case. Later, on 13 April 2004 he
also requested the court to summon again D., one of the persons who
had been present when G. had been murdered. The court, according to
him, rejected the requests.
- In the course of the proceedings against him the
applicant was legally represented by different lawyers appointed
under the legal-aid scheme or privately hired. At least on three
occasions (on 13 November 2000, some time after 25 September 2001 and
on 9 April 2004) he refused their representation as, according to
him, they had acted contrary to his defence interests and had
colluded with the prosecution, and requested the trial court to
replace them with either a particular or any other lawyer. The court
dismissed these requests. In particular, on the latter occasion the
court, finding that there was no need to replace the lawyer, had
regard to the fact that several lawyers had defended the applicant,
that the applicant had not been satisfied with any of their services,
and that it had already allowed his requests to change his lawyer.
- During the retrial the applicant and his lawyer also
made several, unsuccessful applications for release (for example, on
some date in February 2001, on 2 December 2002, 22 January, 18 April,
13 and 21 November, and 29 December 2003), referring, inter
alia, to lack of any justification for further detention, absence
of any intention by the applicant to flee during the period when he
had been released (that is from March 1999 to October 2000),
deteriorated condition of the applicant’s health, impossibility
for the applicant to obstruct the criminal proceedings against him as
all necessary pieces of evidence had been already taken. In its
decisions of 23 April, 17 and 21 November, and 29 December 2003 the
court, dismissing these applications, referred mostly to the severity
of charges against the applicant or of the anticipated sentence; it
also reasoned that no information was available that the applicant
could not be further detained because of his state of health or,
after having obtained forensic medical report on the applicant’s
state of health, that the applicant’s ailments could be
adequately treated in detention or merely that the matter had been
already examined and applications dismissed.
- On
9 April 2004 the applicant also unsuccessfully requested the court to
give him the opportunity to familiarise himself with the case file.
- On 27 April 2004 the court convicted the applicant of
murder and other crimes and sentenced him to seven years and six
months’ imprisonment. The court made the same factual findings
as in the judgment of 25 December 2001 and again found untrue the
statements by B. and K. exonerating the applicant, because the
applicant and B. were brothers whereas K. had complained that
pressure had been put on him by the applicant and B. In finding the
applicant guilty it accordingly relied on earlier, incriminating,
statements by B. and K. and the statements by D. made at the
pre-trial stage, and on other pieces of indirect evidence. The court
also noted, inter alia, that on two occasions the applicant
had tried to destroy certain pieces of evidence against him while he
was being familiarised with the case file.
- The
applicant appealed, complaining, inter alia, about the lower
court’s failure to summon D.
- On
3 May 2007 the Kharkiv Regional Court of Appeal essentially upheld
the judgment. It did not expatiate on the above-mentioned complaint
by the applicant. Additionally, the Court of Appeal rendered two
special rulings (окремі
ухвали)
drawing the attention of the Kharkiv Regional prosecutor and the head
of the Kharkiv Regional Judges’ Council to the procedural
shortcomings of the respective authorities in charge of the case (in
particular, that certain important pieces of evidence had been lost
during the pre-trial investigation and that the judge of the
Chervonozavodskyy District Court of Kharkiv had repeatedly failed to
comply with procedural formalities to make the case file ready for
examination by the appellate court, and had thus protracted the
appeal proceedings for two years and six months).
- The
applicant appealed in cassation; he did not complain about the lower
courts’ failure to summon D. Nor did he complain that he had
been ill-treated and not provided with a legal-aid lawyer in 1995. On
3 December 2007 the Supreme Court of Ukraine rejected the applicant’s
request for leave to appeal in cassation.
B. Proceedings relating to the applicant’s
complaints that his and his late parents’ property had been
embezzled
- According
to the applicant, shortly after his arrest in 1995 his personal
belongings and the property of companies founded by him were
embezzled by the domestic authorities. Although he complained
quickly, the investigation was initiated only in June 1996 and
subsequently was terminated as no person responsible had been
identified.
- On
14 February 2001 the applicant requested the trial court to take
measures to preserve the property of his late parents. According to
him, the court rejected this request as it lacked clarity; all his
subsequent, allegedly clarified, requests were disregarded by the
trial court.
- On
9 April 2004 the applicant requested the trial court to return to him
certain items of his property which had been seized by the
investigator as evidence in the criminal proceedings against him.
According to the applicant, the court disallowed this request.
C. Request for a copy of the case file
- By
letters of 12 May, 1 July and 15 December 2003, 24 September 2004 and
30 July 2009 the Registry requested the applicant to provide the
copies of certain documents in his case. The applicant, in his turn,
requested on several occasions the copies of the abovementioned and
other documents but in vain. For instance, on 25 February 2008 the
applicant’s lawyer requested the Chervonozavodskyy District
Court of Kharkiv to make a copy of the case file. On 15 April 2008
the court rejected the request as not based on law. Eventually
however the applicant provided the Registry with the necessary
documents.
II. RELEVANT DOMESTIC LAW
- Provisions
of the Code of Criminal Procedure of 28 December 1960 on preventive
measures are set out in Nevmerzhitsky
v. Ukraine (no. 54825/00, §
54, ECHR 2005 II (extracts)).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that the length of him detention on remand had
been excessive. He relied on Article 5 § 3 of the Convention,
which, in so far as relevant, reads as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be ...
entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.”
A. Admissibility
- The Government pleaded that the complaint is partly
inadmissible. In particular, they maintained that, for the purposes
of Article 5 § 3 of the Convention, the applicant had been
detained (i) from 9 July 1995 (when he had been arrested)
to 24 March 1999 (when he had been released), (ii) from 12
October 2000 (when he had been remanded in custody again) to
25 December 2001 (the applicant’s first conviction) and
(iii) from 7 November 2002 (when the first conviction
had been quashed) to 27 April 2004 (when he had been convicted for
the second time). Given that the application had been lodged on
8 April 2003, they
argued that the first
two periods were out of the six-month period.
- The Court first observes that the Convention entered
into force in respect of Ukraine on 11 September 1997.
- It further reiterates that, in determining the length
of detention pending trial under Article 5 § 3 of the
Convention, the period to be taken into consideration begins on the
day the accused is taken into custody and ends on the day when the
charge is determined, even if only by a court of first instance (see
Labita v. Italy [GC], no. 26772/95, §§ 145 and 147,
ECHR 2000 IV).
- The Court also reiterates that, in view of the
essential link between Article 5 § 3 of the Convention and
paragraph 1 (c) of that Article, a person convicted at first instance
cannot be regarded as being detained “for the purpose of
bringing him before the competent legal authority on reasonable
suspicion of having committed an offence”, as specified in the
latter provision, but is in the position provided for by Article 5 §
1 (a), which authorises deprivation of liberty “after
conviction by a competent court” (see Kudła v. Poland
[GC], no. 30210/96, §§ 104 and
105, ECHR 2000 XI).
- Turning
to the present case the Court agrees with the Government that the
periods outlined by them are the relevant periods for the purposes of
the abovementioned case-law.
- It
further notes that the first-mentioned period of the applicant’s
detention partly falls out of the Court’s jurisdiction
ratione temporis. Furthermore, having regard the applicant’s
release and the date of introduction of the application, the Court
considers that, as propounded by the Government, the complaint
relating to this period has been introduced out of time and must be
rejected in accordance with Article 35 §§ 1 and 4 of the
Convention (see Pekov v. Bulgaria, no. 50358/99, §
58, 30 March 2006 and Tüm v. Turkey, no. 11855/04, §
31, 17 June 2008).
- As
to the remaining periods, the Court reiterates that consecutive
detention periods of the applicant should be regarded as a whole, and
the six-month period should only start to run from the end of the
last period of pre-trial custody (see Solmaz v. Turkey, no.
27561/02, § 36, ECHR 2007 II (extracts)),
that is from 27 April 2004. For this reason, it
dismisses the Government’s objection in so far as it relates to
the second period of the applicant’s detention on
remand.
- Making an overall
evaluation of the accumulated second and third periods under Article
5 § 3 of the Convention, the Court therefore concludes that the
period to be taken into consideration in the instant case lasted two
years and eight months.
- The
Court notes that the complaint relating to the last two periods of
detention on remand is not manifestly ill-founded within the meaning
of Article 35 § 3 of the Convention and is not inadmissible on
any other grounds. It must therefore be declared admissible.
B. Merits
- In
view of the above objection (see paragraph 37 in fine), the
Government limited their submissions on the merits to the third
period of detention only. They contended that the length of the
applicant’s detention on remand during that period had been
reasonable given the number of accused persons and measures that had
had to be taken by the authorities for thorough examination of the
case. They concluded that the proceedings had been conducted with due
diligence and the authorities had had sufficient grounds for the
applicant’s continued detention.
- The
Court points out that the general principles regarding the right “to
trial within a reasonable time or to release pending trial”, as
guaranteed by Article 5 § 3 of the Convention were stated in a
number of its previous judgements (see, among many other authorities,
Kudła v. Poland, cited above, § 110 and
Nevmerzhitsky v. Ukraine, cited above, § 130 et seq.).
- In
their detention decisions, the authorities, in addition to the
reasonable suspicion against the applicant, relied principally on
three grounds, namely (1) the serious nature of the
offences with which he had been charged, (2) the severity
of the penalty to which he was liable; (3) lack of any
other grounds justifying the applicant’s release (for example,
deteriorated applicant’s health, lack of adequate medical
treatment in detention). They did not, however, specify any concrete
grounds justifying their opinion (see paragraph 25 above).
- The
Court accepts that the reasonable suspicion against the applicant of
having committed serious offences could initially warrant his
detention. However, with the passage of time, those grounds became
less and less relevant. Likewise, the severity of the anticipated
sentence cannot by itself serve to justify long periods of detention
on remand (see Ilijkov v. Bulgaria, no. 33977/96, §§
80-81, 26 July 2001).
- In
the same vein the trial court’s reasons to reject the
applications for applicant’s release on medical grounds (see
paragraph 25 in fine) do not justify the applicant’s
continued detention either as the presumption under Article 5 is in
favour of release (see Bykov v. Russia [GC], no. 4378/02,
§ 61, ECHR 2009 ...).
- Lastly,
the Court notes that no alternative measures were effectively
considered by the domestic authorities to ensure the applicant’s
appearance at trial (see Nevmerzhitsky v. Ukraine, cited
above, § 137 with further references).
- Having
regard to the foregoing, the Court concludes that the grounds given
by the domestic authorities could not justify the overall period of
the applicant’s detention. In these circumstances it is not
necessary to examine whether the proceedings were conducted with
special diligence.
There
has accordingly been a violation of Article 5 § 3 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION (LENGTH OF THE CRIMINAL PROCEEDINGS AGAINST THE APPLICANT)
- The
applicant complained that the length of the criminal proceedings
against him 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 ...”
- Although
the proceedings at issue started on 9 July 1995, the period to be
taken into consideration began only on 11 September 1997 (see
paragraph 38 above). However, in assessing the reasonableness of
the time that elapsed after that date, account must be taken of the
state of proceedings at the time.
The
period in question ended on 3 December 2007. It thus lasted ten years
and almost three months 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
Government submitted that the length of the proceedings in the
applicant’s case was reasonable. In particular, they stated
that the applicant’s case was complicated on points of fact,
given the number of participants (4 accused, 20 witnesses and a
victim). This case, in their view, was also complicated on points of
law as it concerned a murder and other crimes committed by the group
of persons. They also noted that the applicant and his defence
lawyers had made ample use of their procedural rights (they had
lodged various requests, adduced additional submissions and evidence,
familiarised themselves with the case-file, appealed against
decisions, challenged the investigators and judges, and so on).
Because of the accused, victim’s, witnesses’ and defence
lawyers’ failure to appear before the trial court on numerous
occasions, the proceedings had been vastly protracted. The domestic
authorities, on the other hand, had acted with due diligence and did
their best to dispose of the case without undue delay.
- 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)
- 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, among many others, Pélissier and Sassi,
cited above, and Merit v. Ukraine, no. 66561/01, § 76, 30
March 2004).
- 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.
III. REMAINDER OF THE APPLICATION
- The
applicant complained in passing that he had been ill-treated in 1995
by the domestic authorities. Relying on Article 5 of the Convention,
the applicant further challenged the lawfulness of the decisions to
remand him in custody taken in 1995 and 2000 and the lawfulness of
his detention on remand in 1995-1999. The applicant further
complained under Article 6 §§ 1, 2 and 3 (b, c, d) and
Article 7 of the Convention that his convictions on 25 December 2001
and 27 April 2004 had been unlawful and the proceedings against him
had been flawed. The applicant also complained under Article 1 of
Protocol No. 1 that his and his late parents’ property had been
embezzled from him and that the domestic authorities had failed to
return to him certain items of his property seized as evidence in the
criminal proceedings against him. Lastly, the applicant complained
under Article 34 of the Convention that on 15 April 2008 the
Chervonozavodskyy District Court of Kharkiv had unlawfully rejected
his lawyer’s request for a copy of the case file.
- Having
carefully considered the applicant’s submissions in the light
of all the material in its possession, the Court finds that, in so
far as the matters complained of are within its competence, they do
not disclose any appearance of a violation of the rights and freedoms
set out in the Convention.
- It
follows that this part of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to Article 35
§§ 3 (a) and 4 of the Convention.
IV. 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
- In
respect of pecuniary damage the applicant claimed 3,750,000 United
States dollars (USD) (for instance, loss of his personal belongings
and property of the companies founded by him, loss of income and so
on) and USD 5,650,000 for all violations he alleged to have been
committed by the authorities in his case. Apart from that he also
claimed USD 1,840,000 in respect of non-pecuniary damage.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violations found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, ruling on an equitable basis, it awards the applicant
5,400 euros (EUR) in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed 611 Ukrainian hryvnias
(about EUR 56) for the postal expenses incurred before the
Court.
- The
Government left the matter to the Court’s discretion.
- Regard
being had to the documents in its possession and to its case law,
the Court considers that the sum claimed should be awarded in full.
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 complaints under Article 5 § 3
of the Convention concerning the length of the applicant’s
detention on remand from 12 October 2000 to 25 December 2001 and
from 7 November 2002 to 27 April 2004 and under Article 6 §
1 of the Convention concerning the length of the criminal proceedings
against him admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
- 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
5,400 (five thousand four hundred euros) in respect of non pecuniary
damage and EUR 56 (fifty six euros) for
costs and expenses, to be converted into
the national currency of the respondent State at the rate applicable
at the date of settlement, plus any tax that may be chargeable to the
applicant;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts 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 17 March 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Boštjan M. Zupančič
Deputy
Registrar President
