Last Updated on April 16, 2021 by LawEuro
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
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
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.
II. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW
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).
III. REMAINING COMPLAINT
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.
IV. APPLICATION OF ARTICLE 41 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,
1. Declares the complaints concerning the excessive length of pre-trial detentionand the other complaints under well-established case-law of the Court, as set out in the appended table,admissible and the remainder of the application inadmissible;
2. Holds that these complaints disclose a breach of Article 5 § 3 of the Convention concerning the excessive length of pre-trial detention;
3. Holds that there has been a violation of the Convention as regards the other complaints raised under well-established case-law of the Court (see appended table);
4. Holds
(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
5. Dismisses the remainder of the applicant’s claims for just satisfaction.
Done in English, and notified in writing on 15 April 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Liv Tigerstedt Ivana Jelić
Deputy Registrar President
____________
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
and2 months and27 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.
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