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

1.  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.

3.  On 10 September 2010 the Court decided to give notice of the application to the Government.

THE FACTS

4.  The applicant was born in 1982 and lives in the Kyiv Region.

5.  On 14 July 1999, in the presence of others, the applicant shot Mr P. who eventually died in a hospital.

6.  On 15 July 1999 the police started criminal investigations into the event.

7.  On 19 July 1999 the applicant was accused of inflicting bodily injuries; on the same day he gave an undertaking not to abscond.

8.  On 15 October 1999 the police also instituted criminal proceedings against the applicant on suspicion of unlawful possession of arms.

9.  On 20 October 1999 the police changed the legal qualification of the applicant’s actions and accused him of murder.

10.  On 24 October 1999 the police accused the applicant of murder and unlawful possession of arms.

11.  On 29 October 1999 the police submitted the criminal case to the Kyevo-Svyatoshynskyy District Court for trial.

12.  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.

13.  On 12 April 2000 the Kyiv Regional Court upheld that judgment, which thus became final.

14.  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.

15.  On 6 January 2001 the Deputy Prosecutor General lodged a new protest.

16.  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.

17.  On 12 July 2001 the investigations were completed and on 19 July 2001 the case was submitted to the Kyevo-Svyatoshynskyy Court for trial.

18.  On 12 December 2001 the court convicted the applicant of premeditated murder and sentenced him to seven years’ imprisonment.

19.  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.

20.  On 6 November 2002 the Court of Appeal, in the applicant’s absence, upheld the judgment of 12 December 2001 with some minor modifications.

21.  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.

22.  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.

23.  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.

24.  On 1 October 2004 the Court of Appeal sentenced the applicant to four years’ imprisonment and changed the judgment of 12 December 2001.

25.  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.

26.  On 6 February 2006 the Court of Appeal upheld the judgement of 12 December 2001 with minor modifications.

27.  On 6 April 2007 the Supreme Court rejected the appeal in cassation lodged by the applicant’s lawyer.

28.  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

29.  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...”

30.  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.

31.  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

32.  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

33.  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).

34.  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.

35.  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).

36.  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).

37.  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.

38.  There has accordingly been a breach of Article 6 § 1.

II.  OTHER COMPLAINTS

39.  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.

40.  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.

41.  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

42.  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

43.  The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage.

44.   The Government contested that claim.

45.  The Court, ruling on an equitable basis, awards the applicant EUR 1,200 in respect of non-pecuniary damage.

B.  Costs and expenses

46.  The applicant did not submit any claims under that head. Therefore, the Court makes no award.

C.  Default interest

47.  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

1.  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;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

3.  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;

4.  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


BURYAK v. UKRAINE  JUDGMENT


BURYAK v. UKRAINE  JUDGMENT