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Lutsenko case: Doors opened and closed



The rejection on Wednesday of Yury Lutsenko;s cassation appeal regarding one of his trials means that his defence is now able to apply to the European Court of Human Rights.  It makes the chances of the EU being prepared to sign the EU-Ukraine Association Agreement that much more remote.

On Wednesday 3 April the High Specialized Court in Kyiv rejected ex-Interior Minister Yury Lutsenko’s cassation appeal.  Since this was his last legal avenue in Ukraine, the way is now open for another appeal to the European Court of Human Rights.  One more cassation appeal against the conviction in the second trial is to be heard on Thursday. Since the 4-year sentence ends in December 2014 and ECHR judgements take a long time, Lutsenko can now only be freed early if Yanukovych makes a move. There are conflicting versions at present as to whether Lutsenko will ask for a pardon.

The cassation appeal rejected on 3 April was against Lutsenko’s 4-year prison sentence and fine regarding arrangements for his driver and two Police Day celebrations.  The court only slightly reduced the fine imposed, from 643 thousand to 609 thousand UAH. One outstanding cassation appeal, over surveillance of an SBU driver is to be heard on Thursday.

Given the rulings at first and appeal court stages despite highly dubious charges, the cassation appeal had always seemed something of a formality.  Many analysts saw the delay in examining it to be a deliberate tactic aimed at preventing Lutsenko applying to the court in Strasbourg.  It has, however, come after the EU-Ukraine Summit in February where it was made quite clear that Ukraine’s leaders would ruin the chances for the signing of the EU-Ukraine Association Agreement if there was no “resolution” of the situation with selective justice, and specifically the imprisonment of former Prime Minister Yulia Tymoshenko and Yury Lutsenko.

The first case of Yury Lutsenko v. Ukraine at the European Court of Human Rights only dealt with Lutsenko’s initial arrest and extended detention.  The court found numerous violations of Lutsenko’s rights and by adding violation of Article 18 found that the authorities had had a motive other than those stated for detaining and holding Lutsenko in custody. 

The grounds for deepest concern over this case and for scepticism regarding the “offences” resulting in his sentence have been discussed here on many occasions. 

On 17 August 2012 despite the persistent absence of an aggrieved party and confirmation by all witnesses that they considered the surveillance in dispute to be lawful, presiding judge Hanna Medushevsk sentenced Yury Lutsenko to 2 years restriction of liberty, which is swallowed up by the longer 4 year sentence which he received in February. The other two accused were fined 3.5 thousand UAH each and banned from holding administrative posts for three years.

Lutsenko was charged with “negligence” over the allegedly unlawful surveillance on Valentin Davydenko, driver of the former Deputy Head of the SBU [Security Service] Volodymyr Satsyuk. Yushchenko had been taken ill in 2004 after dining with SBU people at the dacha of the SBU Deputy Head.

The charge had been reduced from abuse of power (under Article 384 § 2 of the Criminal Code).

Effectively all the witnesses called by the prosecution stated that they believed the surveillance of Davydenko to be lawful.

Then in mid July, and then just a week before the verdict, Judge Medushevska read out telegrams from Valentin Davydenko who stated that he did not consider himself to be a victim in this case and asked the court to not disturb him any more.

Yury Lutsenko was sentenced to 4 years imprisonment in February over the first two charges brought against him.  The third charge was unexpectedly separated into a different trial.  Medushevska’s conviction was upheld by the court of appeal in November 2012.

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