In a Chamber judgment in the case of Lutsenko v. Ukraine (no. 6942/11), the ECHR held that Articles 5 §§ 1-4 and Article 18 of the European Convention on Human Rights had been violated. The Court held that Lutsenko’s arrest was arbitrary; no valid reasons were given for his detention; he was not informed of the reasons for his detention; and the lawfulness of his arrest and detention were not properly reviewed.
The applicant, Yuriy Vitaliyovych Lutsenko, is a prominent opposition politician in the Ukraine. He is the leader of Narodna Samooborona, an opposition political party, and was Minister of the Interior in the government headed by Yulia Tymoshenko until January 2010. Mr. Lutsenko is currently detained in Kyiv.
In November 2010, the Ukrainian General Prosecutor’s Office initiated criminal proceedings against Mr. Lutsenko, alleging that Mr. Lutsenko had illegally arranged work-related benefits for his driver. In December 2010, the General Prosecutor’s Office instigated another criminal case against Lutsenko for abuse of office, alleging that he had arranged for an apartment for his driver. The cases were joined (“first case”), and Lutsenko was formally indicted. The prosecutor allowed Lutsenko to study the case file, which he did on several occasions. Then, on December 24, 2010, the General Prosecutor’s office instituted yet another set of criminal proceedings against Mr. Lutsenko for abuse of office, this time alleging that Lutsenko had unlawfully authorized search and seizure activities against an individual.
On December 26, 2010, Lutsenko was arrested by Security Service officers and the investigator of the General Prosecutor’s Office in connection with the criminal case initiated on December 24. Mr. Lutsenko asserts that he was not given a copy of the charge sheet and was not informed of the reason for the arrest.
On the following day, Lutsenko and his attorney attended a court hearing, which they did not know about until twenty minutes prior to its commencement. The subject of the hearing was the prosecutor’s request to keep Lutsenko in detention pending his trial in the first case. Mr. Lutsenko alleged that he only discovered after the hearing began that it did not concern his arrest on the previous day. The court granted the prosecutor’s request. The court reasoned that Lutsenko and his attorney had studied the case file slowly and had given information about it to the media. Additionally, the court found that Lutsenko had tried to prevent the investigation, was capable of influencing the investigation, and had not admitted guilt.
Lutsenko’s lawyer lodged an unsuccessful appeal. Lutsenko was convicted and sentenced to four years’ imprisonment and confiscation of property. The judgment was upheld on appeal. An appeal in cassation is pending.
Complaints and Procedure
Mr. Lutsenko complained that his arrest and detention were arbitrary and unlawful and that he had not been informed of the reasons for his arrest, in violation of Article 5 §§ 1(b)-(c), 2, and 3. He also complained, under Article 6 §§ 1, 2, and 3(a)-(b) (right to a fair trial), that he was not informed in advance of the subject of the December 27 hearing, nor was he given time and facilities to prepare. (The ECHR decided to consider the case under Article 5.)
The application was lodged with the ECHR on January 21, 2011. A Chamber hearing was held on April 17, 2012.
Article 5 § 1 (right to liberty and security)
Arrest
The Court noted that Mr. Lutsenko was arrested within the framework of the second criminal case and taken to court on the next day. However, the domestic court did not examine, and indeed had not intended to examine, the lawfulness of Mr. Lutsenko’s arrest. The Court further noted that the prosecuting authorities took Mr. Lutsenko to court for the sole purpose of presenting their application to detain the applicant in connection with the first criminal case, and in fact opposed examination of the lawfulness of Lutsenko’s arrest. In the Court’s view, this suggested that the purpose of Mr. Lutsenko’s arrest had not been to bring him before a competent legal authority within the same criminal case, but to ensure his availability for examination of the prosecuting authority’s application to detain the Mr. Lutsenko in connection with another set of criminal proceedings.
Furthermore, the Court observed that the arrest of Mr. Lutsenko had not been “necessary to prevent him from committing an offence or fleeing after having done so” for the purposes of Article 5 § 1. Although one of the reasons given in the order for Mr. Lutsenko’s arrest was to prevent his continuing criminal activities, the authorities failed to explain in what way the applicant, being accused of abuse of office, could continue that type of activity almost a year after he had left the office of Minister of the Interior. As to the risk of fleeing, Mr. Lutsenko was under an obligation not to abscond, which he had given to the same investigator who had arrested him and who did not appear to have any complaints regarding the applicant’s compliance with that obligation.
Based on the foregoing, the Court concluded that Mr. Lutsenko’s arrest had been for a purpose other than that indicated in Article 5 § 1 of the Convention and was therefore arbitrary and contrary to this provision. Thus, there was a violation of Article 5 § 1 in this respect.
Article 5 § 1
Detention
The Court found that the domestic court’s decision ordering Mr. Lutsenko’s detention was based on questionable grounds. With respect to the assertion that Mr. Lutsenko studied the case file slowly, the Court was not persuaded that deprivation of liberty was an adequate response in such a case, and the measure was applied after only ten days of studying the case file. Furthermore, the applicant provided submissions to show that this ground for detention contradicted Ukrainian law, which provided that examination of the case file was a right, not an obligation, of the accused and that the time available to the accused to study the case file should not be limited. However, the domestic courts did not examine these submissions and did not assess to what extent the manner in which the investigator provided the case file to Mr. Lutsenko complied with Ukrainian law.
With respect to the assertion that Mr. Lutsenko’s interviews with the media put pressure on a witness, neither the domestic authorities nor the Government explained how or in what way witnesses had been threatened by Mr. Lutsenko’s public statements. Furthermore, they did not explain why detention could be considered an adequate response to such statements. Since Lutsenko was a prominent political figure, he could be expected to express his opinion on the proceedings, and this would probably interest both his supporters and his opponents. In the Court’s view, the fact that Mr. Lutsenko exercised his freedom of speech, which did not constitute any offence, did not justify depriving him of his liberty.
Advancing Mr. Lutsenko’s failure to testify and to admit his guilt as grounds for detention runs contrary to elements of a fair trial. Specifically, it is contrary to the principals of freedom from self-incrimination and the presumption of innocence. The Court viewed advancing such grounds to justify custodial measures as disturbing because the implication is that a person could be punished for relying on his basic rights to a fair trial.
Finally, ordering detention without fixing a time limit contravened Article 5 § 1.
Thus, Mr. Lutsenko’s detention was in violation of Article 5 § 1 of the Convention.
Article 5 § 2 (right to be informed of the reasons for one’s arrest)
Whether and to what extent Lutsenko was informed of the formal reasons for his arrest was in dispute. However, the Government did not deny that, at the time of his arrest on December 26, 2010, Lutsenko had not been informed of the prosecutor’s application for his detention. In fact, he was only informed of the application on December 27, more than 24 hours after his arrest. Thus, the authorities failed to comply with their obligations under Article 5 § 2. Accordingly, that provision was violated.
Article 5 § 3 (right to be brought promptly before a judge)
When Mr. Lutsenko was brought before the court following his arrest, the court, despite Lutsenko’s complaint of unlawful arrest, did not examine the lawfulness of his detention. It did not appear that the authorities had any intention of ensuring that the applicant was afforded the automatic judicial control of his detention required by Article 5 § 3. Thus, Article 5 § 3 was violated.
As the Court previously observed, the applicant was not informed of the hearing’s subject in advance, and the domestic court did not examine the necessity of the deprivation of Lutsenko’s liberty in a satisfactory manner. The Court further observed that the domestic court did not consider the possibility of using measures other than deprivation of liberty. Mr. Lutsenko’s request to be given appropriate time to examine the materials brought forward by the prosecution and to prepare his defense was refused without justification. It was for Mr. Lutsenko and his lawyer, the Court said, and not the authorities, to decide whether he needed to study the materials used to support his arrest. “Such behaviour by the domestic authorities,” the Court said, “seriously affected the equality of arms between the parties.”
Thus, the proceedings concerning the change in preventive measures (i.e., a change to pre-trial detention) applied to Mr. Lutsenko did not comply with the requirements of Article 5 § 3. Accordingly, there was also a violation of Article 5 § 3 in this respect.
Article 5 § 4 (right to challenge the lawfulness of one’s detention)
The Kyiv Court of Appeal rejected Mr. Lutsenko’s appeal without giving a proper reply to his arguments, which, in the Court’s opinion, appeared to be pertinent and worthy of examination. Additionally, it did not give an adequate response to a request signed by members of parliament and supported by the Ombudsman for Mr. Lutsenko’s release on bail.
The Court concluded that Mr. Lutsenko had not been given a proper judicial review of the lawfulness of his detention. Accordingly, Article 5 § 4 of the Convention was violated.
Article 18 (limitation on use of restrictions on rights)
In his submissions to the ECHR, Mr. Lutsenko complained, without referring to any Convention provision, that the proceedings against him and his arrest were used by the authorities to exclude him from political life and from participation in the upcoming parliamentary elections. The Court decided that this should be considered under Article 18.
As the Court had already established, the grounds advanced by the authorities for the deprivation of Mr. Lutsenko’s liberty were incompatible with Article 5 § 1 and were against the spirit of the Convention. The Court observed that the profile of the applicant, one of the opposition leaders who had spoken with the media, had attracted considerable public attention. The Court considered that, being accused of abuse of office, Lutsenko had the right to reply to the accusation through the media. The prosecuting authorities indicated Lutsenko’s communication with the media as one of the grounds for his arrest and accused him of distorting public opinion about crimes he committed, discrediting the prosecuting authorities, and influencing the upcoming trial to avoid liability.
The Court stated in its opinion: “In the Court’s opinion, such reasoning by the prosecuting authorities clearly demonstrates their attempt to punish the applicant for publicly disagreeing with accusations against him and for asserting his innocence, which he had the right to do. In such circumstances, the Court cannot but find that the restriction of the applicant’s liberty permitted under Article 5 § 1 (c) was applied not only for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence, but also for other reasons.”
Thus, there was a violation of Article 18 in conjunction with Article 5.
