Communicated on 3 April 2019
FIFTH SECTION
Application no. 62229/12
Oleksandr Oleksandrovych BURLIY
against Ukraine
lodged on 30 July 2012
STATEMENT OF FACTS
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.
QUESTIONS TO THE PARTIES
1. Was the applicant’s pre-trial detention between 24 May 2012 and 21 January 2016 in conformity with Article 5 § 1 of the Convention?
2. Was the applicant’s pre-trial detention in breach of the requirements of Article 5 § 3 of the Convention? In particular, was the overall length of the applicant’s pre-trial detention in breach of the “reasonable time” requirement? Did the courts give sufficient and relevant reasons for the applicant’s pre-trial detention? Did they consider alternative measures of ensuring the applicant’s appearance at trial?
3. Did the procedure by which the lawfulness of the applicant’s detention was reviewed on 1 April 2014 meet the standards required by Article 5 § 4 of the Convention?
4. Was the length of the criminal proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?
The Government are requested to provide copies of all the decisions by which the domestic authorities applied, extended or maintained the applicant’s detention in custody.
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