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
1.  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.
2.  The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.
3.  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
4.  The applicant was born in 1962 and lives in Kharkiv, Ukraine.
A.  Criminal proceedings against the applicant
5.  In June 1995 a certain G. was murdered and criminal proceedings were instituted.
6.  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.
7.  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.
8.  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.
9.  By November 1995 the pre-trial investigation was completed and the case was transferred to the Zhovtnevyy District Court of Kharkiv.
10.  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.
11.  By December 1996 the pre-trial investigation had been completed and the case was transferred back to the Zhovtnevyy District Court of Kharkiv.
12.  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.
13.  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.
14.  On 5 July 1999 the pre-trial investigation was completed and the case was transferred to the Leninskyy District Court of Kharkiv.
15.  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.
16.  On several occasions the hearings were postponed because of the accused, victim’s, witnesses’ and defence lawyers’ failure to appear before the trial court.
17.  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.
18.  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.
19.  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.
20.  In November 2002 the case was transferred to the Chervonozavodskyy District Court of Kharkiv.
21.  During the retrial the applicant maintained his “not guilty” plea.
22.  Again, as at the trial, the hearings were postponed on several occasions because of the participants’ failure to appear before the court.
23.  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.
24.  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.
25.  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.
26.  On 9 April 2004 the applicant also unsuccessfully requested the court to give him the opportunity to familiarise himself with the case file.
27.  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.
28.  The applicant appealed, complaining, inter alia, about the lower court’s failure to summon D.
29.  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).
30.  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
31.  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.
32.  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.
33.  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
34.  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
35.  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
36.  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
37.  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.
38.  The Court first observes that the Convention entered into force in respect of Ukraine on 11 September 1997.
39.  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).
40.  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).
41.  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.
42.  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).
43.  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.
44.  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.
45.  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
46.  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.
47.  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.).
48.  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).
49.  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).
50.  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‑...).
51.  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).
52.  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)
53.  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 ...”
54.  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
55.  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
56.  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.
57.  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)
58.  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).
59.  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
60.  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.
61.  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.
62.  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
63.  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
64.  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.
65.  The Government contested these claims.
66.  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
67.  The applicant also claimed 611 Ukrainian hryvnias (about EUR 56) for the postal expenses incurred before the Court.
68.  The Government left the matter to the Court’s discretion.
69.  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
70.  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 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;

2.  Holds that there has been a violation of Article 5 § 3 of the Convention;

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

4.  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;

5.  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