Stanislaw Lutsenko still imprisoned on a questionable conviction
On 3 October 2003 the Donetsk Regional Court of Appeal convicted Stanislaw Lutsenko of murder for profit and unlawful possession of firearms. On 11 March 2004 the Supreme Court upheld this conviction.
The court ruling was largely based on the testimony of his co-accused Lysyak who was not present at the trial and whom Lutsenko could not question.
On 18 December 2008 the European Court of Human Rights issued its judgment on the case of Lutsenko v. Ukraine which became final on 18 March 2009. It “found a violation of Article 6 § 1 of the Convention. Inasmuch as the applicant’s claim relates to the finding of that violation, the Court reiterates that when an applicant has been convicted despite a potential infringement of his rights as guaranteed by Article 6 of the Convention, he should, as far as possible, be put in the position in which he would have been had the requirements of that provision not been disregarded, and that the most appropriate form of redress would, in principle, be trial de novo, if requested”
On 8 April 2009, Stanislav Lutsenko’s lawyer, Arkady Bushchenko applied to Ukraine’s Supreme Court to have the court rulings reviewed due to exceptional circumstances. He referred to the significant procedural infringements established by the European Court.
In November 2009 after examining the case material, the Supreme Court reached the paradoxical conclusion that there were no circumstances warranting review.
In February 2010 Lutsenko’s lawyer lodged a second application to have the case re-examined. This time the Supreme Court changed its opinion and decided to review the case. As it transpired later, on 2 November 2009 the Deputy Prosecutor of the Donetsk Region had also demanded review due to exceptional circumstances. It asked the Supreme Court to issue a judgment already tried in the cases of Yaremenko and Shabelnik, that is, to exclude the main proof but leave the verdict in force. These judgments, it should be noted, have led to new cases in the European Court: Yaremenko No. 2 v. Ukraine and Shabelnik No. 2 v. Ukraine)
The examination of the case by the Supreme Court was scheduled for 30 July 2010. By an extraordinary coincidence, it was on that day that the Supreme Court, as a result of the “judicial reform”, lost its powers to rectify flagrant infringements of procedure committed by Ukrainian courts.
In February 2011 the Supreme Court informed Lutsenko of this, advising him to turn to the High Specialized Court on Civil and Criminal Cases. In February the relevant application was submitted, however now a new, previously unknown, obstacle arose.
The High Specialized Court demanded that the copies of court rulings “appropriately” notarized be provided. It evidently has grounds for doubting the authenticity of the rulings presented to the European Court and Supreme Court.
It should be noted that at the time of Lutsenko’s conviction, the courts did not issue any such “properly” notarized rulings. At the present time, the High Specialized Court has been provided with copies of the rulings verified by the lawyer in accordane with Article 5 of the Law on the Bar Law Service. Requests have at the same time been issued to the Donetsk Regional Court of Appeal and Supreme Court for the relevant copies of rulings. The High Specialized Court has also been asked for an extension of the time limit for providing documents.
This all means that for more than two years the judgment of the European Court of Human Rights with respect to Lutsenko v. Ukraine has remained unenforced. During that period Stanislav Lutsenko has been serving a prison sentence on the basis of a conviction whose questionable nature was confirmed by the European Court of Human Rights.
The Case of Lutsenko v. Ukraine can be found at http://cmiskp.echr.coe.int