Strasbourg to hold public hearing in Lutsenko case

The European Court of Human Rights has appointed a date (17 April) for hearing the case of Yury Lutsenko v. Ukraine and informed that the hearing will be public.  In announcing dates for 8 such cases, it states

The Court basically has a written procedure but occasionally decides to hold public hearings in specific cases. Hearings take place in the Human Rights Building in Strasbourg. They are public unless otherwise decided by the President of the Chamber or Grand Chamber, as the case may be. At the end of the hearing, the judges withdraw to deliberate. A judgment and/or a decision are delivered at a later date.

The reasons for appointing public hearings into the case of the former Minister of Internal Affairs and leader of the opposition party Narodna Samooborona [People’s Self-Defence] seem very clear.  The case, like that of the former Prime Minister Yulia Tymoshenko, has been widely condemned as politically motivated.  There would appear to be no legitimate grounds for Mr Lutsenko’s detention while throughout the trial witnesses have spoken of pressure from the investigator and Prosecutor General’s Office, distortion of their testimony at pre-trial investigation level, and other very serious allegations.  None of these would seem to have been investigated.  Furthermore the presiding judge Serhiy Vovk ignored the defence’s protests and read out nearly 50 witness protocols from pre-trial investigation stage, without the witnesses being present and without proof being presented that they were in fact unable to attend.  This is of major concern given the above-mentioned allegations.

The public hearing is to establish the answers to the following:

QUESTIONS TO THE PARTIES

1.  Did the applicant’s deprivation of liberty during the period between 26 and 27 December 2010 fall within paragraphs (b) or (c) of Article 5 § 1?

2.  Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, was the applicant’s detention free of arbitrariness and was it based on law given that the arguments of the domestic authorities for the applicant’s detention referred to his unwillingness to refrain from exercising his rights and freedoms guaranteed by the Constitution and that the authorities decided to change the preventive measure after the investigative actions in the criminal case had been already completed? Was the applicant’s detention applied for a purpose other than those envisaged by Article 5, contrary to Article 18 of the Convention given the applicant’s active participation in the political life in Ukraine and his opposition to the Government?

3.  Was the applicant informed promptly of the reasons for his arrest, as required by Article 5 § 2 of the Convention?

4.  Was the applicant brought before a judge or other officer authorised by law to exercise judicial power, as required by Article 5 § 3 of the Convention? Was the procedure before the Pechersky District Court on 27 December 2010 in conformity with Article 5 § 3 of the Convention?

5.  Did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his detention, as required by Article 5 § 4 of the Convention? Was the procedure by which the applicant sought to challenge the lawfulness of his pre-trial detention in conformity with Article 5 § 4 of the Convention?

Given the obvious importance of this case, the following is Lutsenko’s Statement of Facts posted on the Court’s website

FIFTH SECTION

Application no. 6492/11 
by Yuriy Vitaliyovych LUTSENKO 
against Ukraine 
lodged on 21 January 2011

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Yuriy Vitaliyovych Lutsenko, is a Ukrainian national who was born in 1964 and lives in Kyiv. He is currently detained in Kyiv SIZO no. 13. He is represented before the Court by Mr I.Y. Fomin, a lawyer practising in Kyiv.

A.  The circumstances of the case

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

The applicant is a former Minister of the Interior and the leader of the opposition party Narodna Samooborona.

On 2 November 2010 the General Prosecutor’s Office (“the GPO”) instituted criminal proceedings against the applicant and Mr P. under Article 191 § 3 of the Criminal Code. The GPO asserted that while he was Minister of the Interior from December 2007 to January 2010 the applicant had unlawfully arranged for different work-related benefits for his driver – the aforementioned Mr P. On the same date, the applicant gave a written undertaking not to abscond.

On 5 November 2010 the applicant was formally charged.

On 9 November 2010 he appealed to the Pechersky District Court (“the Pechersky Court”) against the decision to institute criminal proceedings against him. This appeal was examined by the court with delay, due to the failure of the GPO on three occasions to submit the case file to the court in accordance with the court’s requests.

During the pre-trial investigation, the applicant appeared for all investigating activities and the investigator had no complaints about his cooperation.

On 11 December 2010 the GPO instituted another criminal case against the applicant for abuse of office under Article 365 § 3 of the Criminal Code on the grounds that the applicant had arranged for the allocation of a one-room apartment to his driver Mr P. This criminal case was joined with the first one brought against the applicant.

On 13 December 2010 the GPO completed the investigation and formally indicted the applicant with both offences, having, however, reclassified his actions specified in the first charge under Article 191 § 5 of the Criminal Code. The applicant was summoned to appear before the investigator in order to study the criminal case file against him.

On 15 December 2010 the applicant was given only the minority of his case file for familiarisation. According to the investigator, the majority of the materials were not available due to the examination of the applicant’s appeal of 9 November 2010. The investigator summoned the applicant to study the case file on 16 and 17 December 2010.

On 16 December 2010 the Pechersky Court examined the applicant’s appeal against the decision to institute criminal proceedings against him and decided to transfer it to the GPO, given that at the time of the examination of the case the investigation had already been completed.

On 17 December 2010 the applicant and his lawyer appeared before the investigator to study the case file. However, the investigator did not provide them with the complete file, referring to the fact that some materials were still with the Pechersky Court. The investigator served on the applicant a summons to appear on 20 through 24 December 2010 in order that his familiarisation with the case file be continued.

On 20 and 21 December 2010 the case file materials were stated to be not ready, despite the applicant’s desire to get acquainted with them.

On 22 December 2010 the investigator informed the applicant that he had decided that all accused and their lawyers would be given only one volume of the file at a time, and the next volume would be given only after all of them had completed their familiarisation with the previous one. The copy of the list of materials of each volume would be given after such familiarisation.

On the same date, the applicant’s representative asked to be allowed to make digital photos of the materials in the case file. This request was rejected.

On 22 and 23 December 2010 the applicant and his lawyer were acquainted with the materials in the case file.

On 22 December 2010 the applicant was cross-examined within an unrelated set of criminal proceedings.

On 24 December 2010 the applicant’s representative was busy representing a client in another set of proceedings, of which he had informed the investigator in advance.

On Sunday 26 December 2010 at 1 p.m. the applicant was arrested near his house by officers of the Security Service and the GPO investigator. During his arrest, the applicant was not informed about the reasons for his arrest and was not given a copy of the charge sheet.

The investigator also refused to give a copy of the charge sheet to the applicant’s representative.

On 27 December 2010 the Pechersky Court held a hearing, in which it examined the GPO’s application to change the preventive measure affecting the applicant from the written obligation not to abscond to being held in custody. The applicant’s lawyer found out about this hearing twenty minutes prior to its start.

The applicant and his lawyer only found out during the hearing that it concerned the GPO’s application to change the preventive measure affecting the applicant and not the grounds for his arrest. The applicant’s lawyer asked the court to adjourn the hearing in order to study the GPO’s application and its supporting materials. The court rejected the lawyer’s request on the grounds that it was not provided for by law.

The GPO founded its application to change the preventive measure affecting the applicant on the fact that after the completion of the pre-trial investigation, the applicant and his lawyer had been given access to the criminal case file but had delayed their study of the file by failing to appear on 14, 16, 17 and 20 December 2010 and by studying the file slowly. The GPO also accused the applicant of giving information from the case file to the media, including the names of witnesses, and of putting pressure on those witnesses by doing so. Therefore, the GPO argued that it could not conduct the investigative actions concerning the applicant properly without changing the preventive measure. The court allowed the application, accepting the GPO’s reasoning and also finding that there were no personal circumstances pertaining to the applicant that would prevent his being held in custody, that the applicant had sought to evade the investigative actions and decisions of the investigator, that he was accused of a crime punishable by imprisonment from three to seven years, that he had not admitted his guilt and had refused to make a statement, and that he was capable of influencing the investigation and putting pressure on the witnesses, either personally or through others.

The applicant’s lawyer appealed against the decision of 27 December 2010 to the Kyiv Court of Appeal, considering it unfounded. In his appeal, he claimed,  inter alia, that the applicant had not violated his obligation not to abscond, that studying the case file was the applicant’s right and not an obligation, that the investigator had not given him all the materials in the case file and had knowingly restricted his right of access to the case file. The lawyer further stated that he and the applicant had not known the grounds for the applicant’s arrest well in advance of the hearing and that the court had refused to postpone the hearing, and, therefore, that they had been put in a disadvantageous position, in violation of the principle of equality of arms. He complained that there was no evidence or information proving that the applicant would evade the investigation or interfere with it. The lawyer also pointed out that the court had referred to the fact that the applicant had refused to admit his guilt and to make a statement as grounds for his arrest, thereby violating the applicant’s constitutional rights.

On 5 January 2011 the Kyiv Court of Appeal rejected the appeal and upheld the decision of the first-instance court.

B.  Relevant domestic law

1.  Constitution of Ukraine

Article 19

“...Bodies exercising State power and local self-government bodies and their officials are obliged to act only on the grounds, within the limits of authority, and in the manner envisaged by the Constitution and the laws of Ukraine.”

Article 29

“Every person has the right to freedom and personal inviolability.

No one shall be arrested or held in custody other than pursuant to a reasoned court decision and [then] only on the grounds and in accordance with the procedure established by law.

...

Everyone arrested or detained shall be informed without delay of the reasons for his or her arrest or detention, apprised of his or her rights, and from the moment of detention shall be given the opportunity to personally defend himself or herself, or to have the legal assistance of defence counsel.

Everyone detained has the right to challenge his or her detention in court at any time.

Relatives of an arrested or detained person shall be informed immediately of his or her arrest or detention.”

Article 34

“Everyone is guaranteed the right to freedom of thought and speech, and to the free expression of his or her views and beliefs ...”

Article 62

“A person is presumed innocent of committing a crime and shall not be subjected to criminal punishment until his or her guilt is proved through the process of law and established by a court verdict of guilty ...”

Article 63

“A person shall not bear responsibility for refusing to testify or to explain anything about himself or herself, members of his or her family or close relatives in the degree determined by law ...”

2.  Criminal Code of Ukraine

Article 191. Misappropriation, embezzlement or conversion of property by malfeasance

“1. Misappropriation or embezzlement of somebody else’s property by a person to whom it was entrusted ...

2. Misappropriation, embezzlement or conversion of property by malfeasance ...

3. Any such actions as provided for by paragraph 1 or 2 of this Article, if repeated or committed by a group of persons [acting] upon their prior conspiracy,  shall be punishable by restraint of liberty for a term of three to five years, or imprisonment for a term of three to eight years, with a prohibition on the right to occupy certain positions or engage in certain activities for a term of up to three years.

4. Any such actions as provided for by paragraphs 1, 2 or 3 of this Article, if committed in respect of a large amount ...

5. Any such actions as provided for by paragraphs 1, 2, 3 or 4 of this Article, if committed in respect of an especially large amount, or by an organized group,  –

shall be punishable by imprisonment for a term of seven to twelve years, with a prohibition on the right to occupy certain positions or engage in certain activities for a term of up to three years and confiscation of property.”

Article 365. Abuse of authority or official powers

“1. Abuse of authority or official powers, namely the intentional commission of acts by an official which manifestly go beyond the scope of the rights and powers vested in him or her and which cause substantial damage to the State or public interests, or to lawful interests, rights and freedoms of natural or legal persons ...

2. Abuse of authority or official powers accompanied with violence, use of weapons, or actions that cause injury or are demeaning to a victim’s personal dignity ...

3. Any such actions as provided for by paragraph 1 or 2 of this Article, if they caused any grave consequences,  shall be punishable by imprisonment for a term of seven to ten years with a prohibition on the right to occupy certain positions or engage in certain activities for a term of up to three years.”

3.  Code of Criminal Procedure

Article 43 
The accused and his rights

“... The accused has the right to ... get acquainted with all materials in the case file after the [conclusion of the] preliminary investigation or inquiry ...”

Article 48 
Duties and rights of defence counsel

“... From the moment of his entry into the case, counsel for the defendant has the right:

...

3) to get acquainted with the materials which substantiate the detention of a suspect or choice of a preventive measure or indictment, and, after the [conclusion of the] pre-trial investigation, with all materials in the case-file ...”

Article 142 
Explaining his or her rights to an accused during an investigation

“When charging an accused, the investigator must explain to the accused that during the pre-trial investigation he or she is entitled to:

..

2) make a statement about the charges against him or her or refuse to make a statement and to answer questions;

...

6) with the permission of the investigator, be present at the performance of certain investigative actions;

7) after the completion of the pre-trial investigation, get acquainted with all the materials in the case file...”

Article 148 
Purpose and grounds for the application of preventive measures

“Preventive measures shall be imposed on a suspect, accused, defendant or convicted person in order to prevent him or her from attempting to abscond from an inquiry, investigation or the court, to obstruct the establishment of the truth in a criminal case or to pursue criminal activities, and in order to ensure the enforcement of procedural decisions.

Preventive measures shall be imposed where there are sufficient grounds to believe that the suspect, accused, defendant or convicted person will attempt to abscond from the investigation and the court, or if he or she fails to comply with procedural decisions, or obstructs the establishment of the truth in the case or pursues criminal activities.

If there are insufficient grounds for the imposition of preventive measures, the suspect, accused or convicted person shall sign a written statement undertaking to appear upon notification by the inquirer, investigator, prosecutor or the court, and shall also undertake to notify them of any change in his place of residence.

If a preventive measure is applicable to a suspect, he or she shall be charged within ten days from the time of imposition of the measure. In the event that the indictment is not issued within that time, the preventive measure shall be annulled.”

Article 150 
Circumstances to be taken into account in choosing a preventive measure

“In resolving the issue of imposing a preventive measure, in addition to the circumstances specified in Article 148 of this Code, such circumstances as the gravity of the alleged offence, the person’s age, state of health, family and financial status, type of employment, place of residence and any other circumstances relating to the person shall be taken into consideration.”

Article 151 
Written undertaking not to abscond

“A written undertaking not to abscond is a written commitment by a suspect or an accused not to leave his or her place of permanent residence or temporary address without the permission of the investigator.

If the suspect or accused breaches this written undertaking not to abscond, it may be replaced by a more stringent preventive measure. The suspect or the accused shall be informed about this upon giving the written undertaking not to abscond.”

Article 218 (in force at the material time) 
Informing the accused of the termination of the investigation of the case and allowing him to study the materials in the case file

“After deciding that the evidence collected in the case is sufficient to warrant an indictment, and after complying with the terms of Article 217 of this Code, the investigator shall inform the accused that the investigation of his case has ended and that he has the right to get acquainted with all of the materials in the case file personally and/or with the assistance of counsel...

If the accused has not shown any interest in familiarising himself with the materials of the case file with the participation of counsel, he shall be personally provided with all of the materials in the case file for familiarisation. In the course of this familiarisation process, the accused has the right to make extracts (to copy in writing) and to lodge motions. The investigator must allow all accused persons, even if there are several in one case, to familiarise themselves with all the materials in the case file ...

... Preliminary investigation materials presented for familiarisation shall be filed and numbered. During the presentation of the materials of the pre-trial investigation, the investigator shall be obliged to provide the accused, upon request of the latter, with a duly certified copy of the list of the materials in the case file...

The time afforded to the accused and his counsel for familiarisation with all materials in the case file shall not be limited.”

COMPLAINTS

Under Article 5 § 1 (b) and (c) of the Convention, the applicant complains that his arrest and the decision on his detention were arbitrary and not in accordance with law, reiterating the reasoning of his appeal against the decision of 27 December 2010.

The applicant complains under Article 5 § 2 of the Convention that he was not informed about the reasons for his arrest.

He further complains under Article 5 § 3 that the decision on his detention was not substantiated and that he was punished for exercising his Constitutional rights not to make self-incriminating statements, to be considered innocent until proved guilty and to hold an opinion.

The applicant lastly complains under Article 6 §§ 1, 2 and 3 (a) and (b) of the Convention that he and his lawyer were not informed in advance about the subject of the court hearing concerning the preventative measure applied to him and were not given time and facilities to prepare his defence.

QUESTIONS TO THE PARTIES

1.  Did the applicant’s deprivation of liberty during the period between 26 and 27 December 2010 fall within paragraphs (b) or (c) of Article 5 § 1?

2.  Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, was the applicant’s detention free of arbitrariness and was it based on law given that the arguments of the domestic authorities for the applicant’s detention referred to his unwillingness to refrain from exercising his rights and freedoms guaranteed by the Constitution and that the authorities decided to change the preventive measure after the investigative actions in the criminal case had been already completed? Was the applicant’s detention applied for a purpose other than those envisaged by Article 5, contrary to Article 18 of the Convention given the applicant’s active participation in the political life in Ukraine and his opposition to the Government?

3.  Was the applicant informed promptly of the reasons for his arrest, as required by Article 5 § 2 of the Convention?

4.  Was the applicant brought before a judge or other officer authorised by law to exercise judicial power, as required by Article 5 § 3 of the Convention? Was the procedure before the Pechersky District Court on 27 December 2010 in conformity with Article 5 § 3 of the Convention?

5.  Did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his detention, as required by Article 5 § 4 of the Convention? Was the procedure by which the applicant sought to challenge the lawfulness of his pre-trial detention in conformity with Article 5 § 4 of the Convention?