European Court: Lutsenko was arbitrarily arrested and detained

03.07.2012 |

The European Court of Human Rights has unanimously found violations of Articles 5 § 1 (right to liberty and security); 5 § 2 (right to be informed of the reasons for one’s arrest); 5 § 3 (right to be brought promptly before a judge)-trial detention; 5 § 4 (right to challenge the lawfulness of one’s detention) with respect to the initial detention of former Interior Minister Yury Lutsenko

In today’s Chamber judgment in the case of Lutsenko v. Ukraine (application no. 6492/11), which is not final1, the European Court of Human Rights held,

unanimously, that there had been: two violations of Article 5 § 1 (right to liberty and security) of the European Convention on Human Rights on account of Mr Lutsenko’s arrest and ensuing detention; a violation of Article 5 § 2 (right to be informed of the reasons for one’s arrest)two violations of Article 5 § 3 (right to be brought promptly before a judge) on account of both his arrest and his pre-trial detention; a violation of Article 5 § 4 (right to challenge the lawfulness of one’s detention); and a violation of Article 18 (limitation on use of restrictions on rights) in conjunction with Article 5.

The case concerned the complaint by a well-known opposition politician that his arrest and the decision on his detention were arbitrary and unlawful, and that he was not informed about the reasons for his arrest.

The Court held in particular: that Mr Lutsenko’s arrest had been arbitrary; that no valid reasons had been given for his detention; that he had not been duly informed of the reasons for his detention; and, that the lawfulness of his arrest and detention had not been properly reviewed.

The Court also found that, given that the prosecutors had referred to Mr Lutsenko’s communication with the media as one of the reasons for his arrest, his right to liberty had been restricted for other reasons than those permissible under Article 5.

Principal facts

The applicant, Yuriy Vitaliyovych Lutsenko, is a Ukrainian national who was born in 1964 and is currently detained in Kyiv. He is the leader of the opposition party Narodna Samooborona and was the Minister of the Interior until January 2010.

In November 2010, the General Prosecutor’s Office brought criminal proceedings against Mr Lutsenko for unlawfully arranging different work-related benefits for his driver. On 11 December of the same year, the prosecution brought another criminal case against Mr Lutsenko for abuse of office, for allegedly arranging the allocation of a one-room apartment to his driver. The two criminal cases were joined (“the first criminal case”).

On 13 December 2010 the prosecutor completed the investigation, formally indicted Mr Lutsenko and invited him to study the case file, which he did on several occasions between 15 and 23 December 2010.

On 24 December 2010 the General Prosecutor’s Office brought another set of criminal proceedings against Mr Lutsenko for abuse of office (“the second criminal case”). He was suspected of the unlawful authorisation of search and seizure activities against an individual.

On 26 December 2010, Mr Lutsenko was arrested near his home by officers of the Security Service and the investigator of the General Prosecutor’s Office in connection with the second criminal case. According to Mr Lutsenko, he was not informed of the reasons for his arrest and was not given a copy of the charges against him.

On 27 December 2010 Mr Lutsenko and his lawyer attended a hearing before the Pechersky court, which they had found out about only 20 minutes before it started. The hearing concerned the prosecutor’s request to keep Mr Lutsenko in detention pending his trial in the first criminal case. According to Mr Lutsenko, he only discovered after the hearing had started that it did not concern his arrest the day before, as he had assumed.

The court allowed the prosecutor’s request and ordered Mr Lutsenko’s detention,  accepting the reasoning according to which Mr Lutsenko and his lawyer had studied the case file slowly and had given information about it to the media. The court also found that Mr Lutsenko had tried to prevent the investigation and was capable of influencing it,  and had not admitted his guilt.

Mr Lutsenko’s lawyer appealed unsuccessfully. Mr Lutsenko remains in detention. On 27 February 2012, he was convicted and sentenced to four years’ imprisonment and confiscation of property. The judgment was upheld on appeal on 16 May 2012. An appeal in cassation is pending.

Complaints, procedure and composition of the Court

Relying on Article 5 §§ 1 (b) and (c), 2 and 3 (right to liberty and security) of the European Convention on Human Rights, Mr Lutsenko complained in particular that his arrest and detention were arbitrary and unlawful, and that he was not informed about the reasons for his arrest. Relying also on Article 6 §§ 1, 2 and 3 (a) and (b) (right to a fair trial), he complained that he was not informed in advance about the subject of the court hearing of 27 December 2010.

The application was lodged with the European Court of Human Rights on 21 January 2011. The Court communicated the application to the Ukrainian Government in April 2011, asking it to reply to a number of questions, including whether Mr Lutsenko had been detained for a purpose other than those envisaged in Article 5, contrary to Article 18, given his active participation in political life in Ukraine and his opposition to the Government. A Chamber hearing was held on 17 April 2012.

Judgment was given by a Chamber of seven judges, composed as follows:

Dean Spielmann (Luxembourg), President,

Mark Villiger (Liechtenstein),

Karel Jungwiert (the Czech Republic),

Boštjan M. Zupančič (Slovenia),

Ann Power-Forde (Ireland),

Ganna Yudkivska (Ukraine),

André Potocki (France),

Article 5 § 2

It was in dispute between the parties whether and to what extent Mr Lutsenko had been informed of the formal reasons for his arrest. However, it was not disputed by the Government that - at the time of his arrest on 26 December 2010 - he had not been informed of the existing application for his detention prepared by the prosecutor’s office in relation to the first criminal case, which ultimately served as a basis for his detention.

Mr Lutsenko had only been informed of that application during the court hearing on 27 December 2010, more than 20 hours after his arrest. The Court concluded that the authorities had not complied with their obligations under Article 5 § 2. There had accordingly been a violation of that Article.

Article 5 § 3

Despite Mr Lutsenko’s complaint of having been arrested unlawfully, the Ukrainian court had not examined the lawfulness of his detention. From the materials in the case file the authorities had not apparently had any intention of ensuring that he was afforded the automatic judicial control of his detention required by Article 5 § 3. There had thus been a violation of Article 5 § 3 in that respect.

As regards the judicial order for Mr Lutsenko’s detention, the Court had already established that he had not been informed in advance of the subject of the hearing and that the necessity of his deprivation of liberty had not been examined in a satisfactory manner by the Ukrainian court. Furthermore, that court had not considered the possibility of using measures other than deprivation of liberty. In addition to those shortcomings, Mr Lutsenko’s request to be afforded appropriate time to study the materials brought forward by the prosecution and to prepare his defence had been refused without any justification. The Court concluded that the proceedings concerning his detention had not complied with the requirements of Article 5 § 3. There had accordingly been another violation of that article.

Article 5 § 4

The appeal court had rejected Mr Lutsenko’s appeal without giving a proper reply to his arguments to the effect, in particular, that he had not violated his obligation not to abscond, that studying the case file was his right and not an obligation and that he had not known the grounds for the arrest well in advance of the hearing. Furthermore, that court had not given an adequate response to a request by a number of Members of Parliament, supported by the Ukrainian Ombudsman, for Mr Lutsenko’s release on bail.

The Court concluded that Mr Lutsenko had not been afforded a proper judicial review of the lawfulness of his detention. There had accordingly been a violation of Article 5 § 4.

Article 18

In his submissions to the Court, Mr Lutsenko had complained, without referring to any particular article of the Convention, that the proceedings against him and his arrest had been used by the authorities to exclude him from political life and from participation in the upcoming parliamentary elections. The Court considered that that complaint should be examined under Article 18.

Given that he was one of the opposition leaders, it was clear that Mr Lutsenko’s case had attracted considerable attention. Being accused of abuse of office, he had the right to reply to such an accusation via the media. The prosecuting authorities had indicated his communication with the media as one of the grounds for his arrest. They had accused him of distorting public opinion concerning the offences with which he had been charged,  of discrediting the prosecuting authorities and of influencing the upcoming trial in order to avoid criminal liability.

In the Court’s opinion, such reasoning clearly demonstrated the authorities’ attempt to punish Mr Lutsenko for publicly disagreeing with accusations against him and for asserting his innocence. The Court could not but find that the restriction on his liberty

had been imposed 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. There had accordingly been a violation of Article 18 taken in conjunction with Article 5.

Just satisfaction (Article 41)

The Court held that Ukraine was to pay Mr Lutsenko 15, 000 euros (EUR) in respect of non-pecuniary damage.

The judgment is available only in English.

This press release is a document produced by the Registry. It does not bind the Court.


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