European Court of Human Rights

FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 27672/03
by Andrey Andreyevich BURYAGA
against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 7 July 2009 as a Chamber composed of:

Peer Lorenzen, President,
Karel Jungwiert,
Rait Maruste,
Mark Villiger,
Isabelle Berro-Lefèvre,
Zdravka Kalaydjieva, judges,
Stanislav Shevchuk, ad hoc judge,

and Stephen Phillips, Deputy Section Registrar,

Having regard to the above application lodged on 18 August 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Andrey Andreyevich Buryaga, is a Ukrainian national who was born in 1965 and lives in Krasnoselka, Odessa region, Ukraine.

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 19 March 2001 the applicant was arrested by the police on suspicion of committing a crime.

On 19 June 2001 the applicant was given the case-file materials.

On 13 July 2001 the Lubashevskiy Local Court of Odessa region rejected the applicant’s complaint about the unlawfulness of his detention on the ground that the time given to an accused for studying a case-file was not to be taken into account. The applicant appealed to the Odessa Regional Court of Appeal but to no avail.

On 26 June 2003 the Lubashevskiy Local Court of Odessa region remitted the criminal case against the applicant for further investigation.

On 13 December 2004 the Kotovsk Local Court of Odessa region found the applicant and six other individuals guilty of several different crimes; in particular, the applicant was found guilty of burglary and sentenced to five years’ imprisonment.

On 17 January 2006 the Odessa Court of Appeal upheld the decision of the first-instance court.

On 21 August 2006 the judge of the Supreme Court returned the applicant’s cassation appeal without consideration due to non-compliance with procedural requirements and gave him a month to correct the shortcomings.

On 2 November 2006 the Supreme Court rejected the applicant’s cassation appeal as being submitted too late.

COMPLAINTS

The applicant complained under Article 5 of the Convention about the unlawfulness and length of his pre-trial detention. He further complained under Article 6 of the Convention about the unfairness and length of the criminal proceedings against him. Referring to Article 13 of the Convention, the applicant submitted that the domestic courts had not properly considered his complaints about the unlawfulness of his detention. He further complained that the procedural rulings of the first-instance court given in 2001-2003 had not been reviewed by the appellate court in violation of Article 2 of Protocol No. 7. He complained under Article 17 that the domestic authorities, by all the above actions, had disregarded his rights.

In his letter of 10 April 2009 he further complained that the Supreme Court had unlawfully rejected his cassation appeal.

THE LAW

The applicant complained that his detention had been unlawful and unreasonably long. He further complained that he had had no effective remedy to review the lawfulness of his detention and that the criminal proceedings against him had been lengthy. He relied on Article 5 §§ 1, 3 and 4 and Article 6 § 1 of the Convention, which read, in so far as relevant, as follows:

Article 5

“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so...

3.  Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4.  Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful...”

Article 6 § 1

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

Accordingly, it rejects this part of the application in accordance with Article 35 §§ 3 and 4 of the Convention as being manifestly ill-founded.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints that his detention during the judicial proceedings was unlawful and excessively long (Article 5 §§ 1 and 3), that the courts failed to consider his complaints about the unlawfulness of his detention (Article 5 § 4), and that concerning the length of the criminal proceedings against him (Article 6 § 1);

Declares the remainder of the application inadmissible.

Stephen Phillips Peer Lorenzen
Deputy Registrar President