I correctly predicted that there was a violation of human rights in BURLIY v. UKRAINE.

Information

  • Judgment date: 2021-04-15
  • Communication date: 2019-04-03
  • Application number(s): 62229/12
  • Country:   UKR
  • Relevant ECHR article(s): 5, 5-1-b, 5-3, 6, 6-1
  • Conclusion:
    Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)
    Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings
    Article 6-1 - Reasonable time)
    Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review)
  • Result: Violation
  • SEE FINAL JUDGMENT

JURI Prediction

  • Probability: 0.831229
  • Prediction: Violation
  • Consistent


Legend

 In line with the court's judgment
 In opposition to the court's judgment
Darker color: higher probability
: In line with the court's judgment  
: In opposition to the court's judgment

Communication text used for prediction

The applicant, Mr Oleksandr Oleksandrovych Burliy, is a Ukrainian national, who was born in 1980 and lives in Kyiv.
The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows.
On 27 September 2009 M., a prosecutor at the Tarashcha District Prosecutor’s Office, was shot dead at his place of work.
On the same date, the Kyiv Regional Prosecutor’s Office instituted criminal proceedings in connection with the murder.
On 30 September 2009 the applicant’s friend, who had been an assistant prosecutor to M., and the friend’s brother were arrested on suspicion of M.’s murder.
On 30 September 2009 the applicant was brought by police special forces to a police station where he was allegedly beaten and questioned in relation to M.’s murder.
Later on the same day a report on the applicant’s administrative arrest for being drunk and swearing in public was drawn up by the police and a court ordered him to serve fifteen days of administrative detention.
During his administrative detention the applicant was allegedly questioned as a witness in respect of the murder of M. On 2 October 2009, the applicant was arrested as a suspect in M.’s murder investigation.
On the same day, the Tarashcha District Court refused to order the applicant’s pre-trial detention as a preventive measure due to a lack of relevant and necessary information on the part of the investigator.
At the same time, the court extended the applicant’s term in police custody until 12 October 2009 in order to allow the investigating authorities to gather the missing information.
On the same date, criminal proceedings were instituted against the applicant for failing to report information to the authorities in connection with M.’s murder.
On 12 October 2009 criminal proceedings were instituted against the applicant for the attempted murder of M. Later on the same date, the Tarashcha District Court remanded the applicant in custody for two months on the grounds that he was suspected of a serious crime, had no permanent place of residence, no family and work and might abscond investigation and trial, impede the investigation or reoffend.
This decision was upheld by the Kyiv Regional Court of Appeal (“the Court of Appeal”) on 23 October 2009.
On 30 November and 31 December 2009 the Tarashcha District Court extended the applicant’s pre-trial detention to three and four months respectively for similar reasons as in its previous decisions.
On 18 December 2009 and 15 January 2010 respectively, the Court of Appeal rejected the applicant’s appeals against the above-mentioned rulings.
It noted, inter alia, that the application of a less strict preventive measure would not ensure the appropriate behaviour of the applicant.
On 29 December 2009 the applicant’s charges were amended.
He was charged with M.’s murder committed as a member of a group of persons upon prior conspiracy and for unlawful handling of weapons and ammunition.
On the same date the investigation was completed and the applicant and his lawyer were granted access to the case file.
On 29 January and 1 March 2010 the applicant’s detention was extended by the Court of Appeal to five and six months respectively on the ground that the applicant needed more time to study the case file and, if at liberty, might abscond or impede the establishment of truth in the case.
These decisions of the Court of Appeal were not subject to appeal.
On 1 April 2010 the criminal case against the applicant and his alleged accomplices was referred to the Court of Appeal for a trial.
On 28 December 2010 the trial court convicted the applicant as charged and sentenced him to ten years’ imprisonment – to run from 30 September 2009, when the applicant had in fact been taken into custody.
On 24 May 2012 the Higher Specialised Civil and Criminal Court of Ukraine partly allowed the applicant’s appeal in cassation, quashed the above-mentioned judgment and remitted the case for fresh examination to the first-instance court.
In doing so, it ordered the applicant to remain in pre-trial detention, having provided no reason for such an order.
On an unspecified date the case was assigned to the Boguslav Town Court, where it was under examination from 16 August 2012 until 24 December 2014.
On 2 July and 30 September 2013 and on 1 April 2014 the Boguslav Town Court rejected the applicant’s requests to change his preventive measure to an obligation not to abscond.
In doing so, it relied on the gravity of the charges against the applicant and the risk of him absconding.
The court also noted that the applicant had failed to prove that there had been grounds for a change in the preventive measure.
On 25 December 2014, following a request by the Boguslav Town Court, the criminal case was assigned to the Bila Tserkva Town Court for examination at first instance.
On 21 January 2016 the Bila Tserkva Town Court allowed the applicant’s request and released him under obligation not to abscond.
Having relied on the provisions of the relevant law, according to which one day in pre-trial detention had to be counted as two days of the main sentence, the court found that the term of the applicant’s detention had already exceeded the ten years’ imprisonment term under the initial judgment of the first-instance court.
On 11 July 2016 the Bila Tserkva Town Court found the applicant guilty of M.’s murder, committed as a member of a group of persons and with prior conspiracy.
It sentenced the applicant to ten years’ imprisonment – to run from 2 October 2009, when he had been officially arrested as a suspect in the criminal proceedings.
The court further declared that the applicant had served his sentence in full in accordance with the applicable legislation.
On 30 November 2016 the Court of Appeal partly changed the judgment of 2 February 2016 in respect of one of the applicant’s co-defendants and upheld the remainder of the judgment of the first-instance court.
On 25 January 2017 the Higher Specialised Civil and Criminal Court of Ukraine rejected the applicant’s request for leave to appeal on points of law.
COMPLAINTS The applicant complains under Article 5 § 1 that his detention from 24 May 2012 to 21 January 2016 was unlawful.
He also submits under Article 5 § 3 of the Convention that his pre-trial detention was excessively long and not justified by relevant and sufficient reasons.
He further alleges under Article 5 § 4 of the Convention that on 1 April 2014 his request for release was not duly examined by the court.
Lastly, under Article 6 § 1 of the Convention the applicant complains that the length of the criminal proceedings against him was excessive.

Judgment

FIFTH SECTION
CASE OF BURLIY v. UKRAINE
(Application no.
62229/12)

JUDGMENT
STRASBOURG
15 April 2021

This judgment is final but it may be subject to editorial revision.
In the case of Burliy v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Ivana Jelić, President,Ganna Yudkivska,Arnfinn Bårdsen, judges,and Liv Tigerstedt, Deputy Section Registrar,
Having deliberated in private on 25 March 2021,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.
The case originated in an application against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 30 July 2012. 2. The Ukrainian Government (“the Government”) were given notice of the application. THE FACTS
3.
The applicant’s details and information relevant to the application are set out in the appended table. 4. The applicant complained of the excessive length of his pre-trial detention. He also raised other complaints under the provisions of the Convention. THE LAW
5.
The applicant complained principally that his pre-trial detention had been unreasonably long. He relied on Article 5 § 3 of the Convention, which reads as follows:
Article 5 § 3
“3.
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.”
6.
The Court observes 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, have been stated in a number of its previous judgments (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000‐XI, and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006‐X, with further references). 7. In the leading cases of Kharchenko v. Ukraine, no. 40107/02, 10 February 2011, and Ignatov v. Ukraine, no. 40583/15, 15 December 2016, the Court already found a violation in respect of issues similar to those in the present case. 8. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the applicant’s pre-trial detention was excessive. 9. These complaints are therefore admissible and disclose a breach of Article 5 § 3 of the Convention. 10. The applicant submitted other complaints which also raised issues under the Convention, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Merit v. Ukraine (no. 66561/01, 30 March 2004) and Svershov v. Ukraine (no. 35231/02, § 71, 27 November 2008). 11. The applicant also raised another complaint under Article 5 § 1 of the Convention. 12. The Court has examined this complaint and considers that, in the light of all the material in its possession and in so far as the matter complained of is within its competence, this complaint either does not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or does not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention. 13. 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.”
14.
Regard being had to the documents in its possession and to its case‐law (see, in particular, Ignatov, cited above), the Court considers it reasonable to award the sum indicated in the appended table and to reject any additional claims for just satisfaction raised by the applicant. 15. The Court considers it appropriate that the default interest rate 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,
(a) that the respondent State is to pay the applicant, within three months, the amount indicated in the appended table, to be converted into the currency of the respondent State 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
Done in English, and notified in writing on 15 April 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Liv TigerstedtIvana JelićDeputy RegistrarPresident

APPENDIX
Application raising complaints under Article 5 § 3 of the Convention
(excessive length of pre-trial detention)
Application no.
Date of introduction
Applicant’s name
Year of birth
Period of detention
Length of detention
Specific defects
Other complaints under
well-established case-law
Amount awarded for pecuniary and non-pecuniary damage and costs and expenses
per applicant
(in euros)[1]
62229/12
30/07/2012
Oleksandr Oleksandrovych BURLIY
1980
02/10/2009 to
28/12/2010

24/05/2011 to
21/01/2016
1 year
and 2 months
and 27 days

4 years
and 7 months
and 29 days
Failure to examine the possibility of applying other measures of restraint;
failure to assess the applicant’s personal situation reducing the risks of
re-offending, colluding
or absconding;
fragility of the reasons employed by the courts.
Art. 6 (1)
excessive length of criminal proceedings –
27/09/2009 – pending, 11 years and 5 months for 3 levels of jurisdiction,

Art.
5 (4)
deficiencies in proceedings for review of the lawfulness of detention - failure of the domestic court in its decision of 01/04/2014 to thoroughly examine the applicant’s arguments provided in his request for alternative preventive measure
3,900

Application no.
Date of introduction
Applicant’s name
Year of birth
Period of detention
Length of detention
Specific defects
Other complaints under
well-established case-law
Amount awarded for pecuniary and non-pecuniary damage and costs and expenses
per applicant
(in euros)[1]
62229/12
30/07/2012
Oleksandr Oleksandrovych BURLIY
1980
02/10/2009 to
28/12/2010

24/05/2011 to
21/01/2016
1 year
and 2 months
and 27 days

4 years
and 7 months
and 29 days
Failure to examine the possibility of applying other measures of restraint;
failure to assess the applicant’s personal situation reducing the risks of
re-offending, colluding
or absconding;
fragility of the reasons employed by the courts.
Art. 6 (1)
excessive length of criminal proceedings –
27/09/2009 – pending, 11 years and 5 months for 3 levels of jurisdiction,

Art.
5 (4)
deficiencies in proceedings for review of the lawfulness of detention - failure of the domestic court in its decision of 01/04/2014 to thoroughly examine the applicant’s arguments provided in his request for alternative preventive measure
3,900
[1] Plus any tax that may be chargeable to the applicant.