Communicated on 3 April 2019
FIFTH SECTION
Application no. 52095/11
Ivan Ivanovych TESLYA
against Ukraine
lodged on 10 August 2011
STATEMENT OF FACTS
The applicant, Mr Ivan Ivanovych Teslya, is a Ukrainian national, who was born in 1975 and is serving a sentence of life imprisonment in Berdychiv.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 8 December 2009 the Kyiv Regional Court of Appeal, sitting as a court of first instance, found the applicant guilty of aggravated murder and sentenced him to fifteen years’ imprisonment.
The prosecutor and the victims (family members of the murdered persons) appealed in cassation arguing, in particular, that the sentence was too lenient. The applicant, who also lodged a cassation appeal, contested the sentence as overly severe.
On 19 March 2009 the Supreme Court, sitting in a panel of three judges including President R. and Judge K., quashed the judgment in allowing the prosecutor’s and the victims’ appeals in cassation and remitted the case to the first-instance court to fresh examination. The Supreme Court held, in particular, as follows:
“Having found [the applicant] guilty of [aggravated murder] the court sentenced him to fixed-term imprisonment, without having duly reasoned that sentence.
According to the charges against the applicant, which the court found to be proved, [the applicant] committed, together with [Y.] and [V.], premeditated murder of two persons for profit, having conspired in advance.
However, in setting the sentence for [the applicant], the court did not fully take into account the severity of the committed crime, or the fact that it belonged to the category of particularly serious crimes. Nor did [the first-instance court] take into consideration the information about the convict’s character or the circumstances under which the crime had been committed.
The case file contains materials indicating that [the applicant] had been absconding from the investigation and trial for a long time, which had become the reason for declaring him wanted by the police; he had been living in Russia under a different family name. Having concluded that [the applicant] enjoyed positive character references by the place of his detention and the place of his residence, the court relied on his character reference made by the [Svyatoshynskyy Temporary Detention Facility]. However, as noted therein, the applicant was detained there for a short period of time. In other words, that document cannot be regarded as providing sufficient information on [the applicant’s] character. ...
The panel of judges considers that, having regard to the crime committed by [the applicant] and the information about his character, the sentence imposed is insufficient for his correction and for prevention of further crimes. Therefore, the judgment in the present case shall be quashed on the grounds of substantial breaches of the criminal procedural legislation and the inconsistency, on account of being too lenient, of the sentence with the gravity of the crime and [the applicant’s] character. The case shall be remitted for fresh examination.”
On 21 December 2009 the Kyiv Regional Court of Appeal delivered a new judgment, by which it found the applicant guilty as charged and sentenced him to life imprisonment.
On 10 February 2011 the Supreme Court upheld that judgment, sitting in a three-judge panel which, like before, included President R. and Judge K.
COMPLAINT
The applicant complains under Article 6 § 1 of the Convention that the three-judge panel of the Supreme Court, which upheld his conviction and life sentence in cassation, could not be regarded impartial for the following reasons. When quashing the first verdict (sentencing the applicant to fifteen years’ imprisonment) and ordering re-trial, the panel of the Supreme Court in its initial composition had explicitly stated that a fixed-term imprisonment was too lenient and had thus left the trial court with no other option than sentencing the applicant to life imprisonment. Given that two out of the three judges, including the President, remained the same in the new composition of the panel, the applicant feared that it lacked impartiality.
QUESTION TO THE PARTIES
Was the panel of the Supreme Court which dealt with the applicant’s case impartial, as required by Article 6 § 1 of the Convention?
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