CASE OF LUTSENKO v. UKRAINE

(Application no. 6492/11)

JUDGMENT

This judgment was rectified on 1 August 2012

under Rule 81 of the Rules of Court

STRASBOURG

3 July 2012

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Lutsenko v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

Dean Spielmann, President,
Mark Villiger,
Karel Jungwiert,
Boštjan M. Zupančič,
Ann Power-Forde,
Ganna Yudkivska,
André Potocki, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 17 April and 26 June 2012,

Delivers the following judgment, which was adopted on the last-mentioned date:

PROCEDURE

1. The case originated in an application (no. 6492/11) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Yuriy Vitaliyovych Lutsenko (“the applicant”), on 21 January 2011.

2. The applicant was represented by Mr I. Fomin and Ms V. Telychenko, lawyers practising in Kyiv, and Mr A. Bushchenko, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, Ms V. Lutkovska, from the Ministry of Justice.

3. On 5 April 2011 the Court decided to give notice of the application to the Government. It also decided to give priority to the application (Rule 41).

4. The applicant and the Government each filed written observations (Rule 54 § 2 (b)).

5. A hearing took place in public in the Human Rights Building, Strasbourg, on 17 April 2012 (Rule 59 § 3).

There appeared before the Court:

(a) for the Government
Ms V. Lutkovska, Agent,
Mr N. Kulchytskyy, Counsel,
Mr M. Bem,
Mr I. Zinchenko,
Mr D. Loban, Advisers;

(b) for the applicant
Mr I. Fomin,
Ms V. Telychenko, Counsel s,
Ms T. Tsiukalo, Adviser.

The Court heard addresses by Ms V. Lutkovska, Ms V. Telychenko and Mr I. Fomin, as well as the answers by Ms V. Lutkovska and Ms V. Telychenko to questions put to the parties.

6. Judge Fura, having in the meantime left the Court, was replaced in the final deliberations by Judge Zupančič, formerly first substitute.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

7. The applicant was born in 1964 and lives in Kyiv. He is a former Minister of the Interior and the leader of the opposition party Narodna Samooborona.

A. Institution of criminal proceedings against the applicant

8. On 2 November 2010 the General Prosecutor’s Office (“the GPO”) instituted criminal proceedings against the applicant and another individual, 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 to the investigator.

9. On 5 November 2010 the applicant was formally charged.

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

11. On 11 December 2010 the GPO instituted another criminal case against the applicant for exceeding his official powers 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.

12. The two criminal cases were joined together (hereinafter – “the first criminal case”).

13. On 13 December 2010 the GPO completed the investigation in the case and formally indicted the applicant on both counts, 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.

B. Study of the case-file materials

1. Applicant’s version of events

14. On 15 December 2010 the applicant was given only the minority of the criminal case file for familiarisation, being informed that the rest of the materials were not available. The investigator summoned the applicant to study the case file on 16 and 17 December 2010.

15. 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.

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

17. 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. He added that 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. His request was rejected.

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

19. 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.

2. The Government’s version of events

20. On 8 December 2010 the applicant was served with a summons to appear before the investigator on 14 December 2010.

21. On 14, 16, 17, 20 and 24 December 2010 he failed to appear to study the case file.

22. On 15, 21, 22 and 23 December 2010 the applicant came to the GPO to study the case file.

23. On 20 December 2010 the investigator issued a resolution establishing the order of studying the case file. The applicant was notified of this order on 21 December 2010.

C. Other events

24. On 18 December 2010 the weekly newspaper Zerkalo Nedeli (Mirror Weekly) published an interview with the applicant entitled “ Yuriy Lutsenko: I try to think less about the bad things... ”. In this interview, he denied all accusations against him. Being asked about statements made by his former deputy minister, Mr K., the applicant said:

“For reasons unknown to me K. [...] says that I allegedly called him to my office, gave him a resolution prepared for his signature and told him that he should sign it. How is this confirmed? Only by the words of a man who is frightened by something...

What confirmed his words? Nothing. All charges are based not on documents that I signed, but on oral instructions which I allegedly gave. Why in this case I did not give such oral instructions to my other subordinates and on other occasions is a mystery...”

25. On 24 December 2010 GPO investigator V. instituted another set of criminal proceedings against the applicant for abuse of office under Article 364 § 3 of the Criminal Code (hereinafter – “the second criminal case”). The applicant was suspected of unlawful authorisation of search and seizure activities against an individual. The same day the investigation in the first criminal case was resumed. Five days later, the two cases were joined.

26. On 25 December 2010 the same investigator prepared an application to the Pechersky Court, seeking to have the preventive measure applied to the applicant in respect of the first criminal case changed from an undertaking not to abscond to pre-trial detention. The investigator stated that the applicant had not complied with his procedural decisions and had attempted to avoid participating in the investigation by, in particular, systematically failing to appear before the investigator at the fixed time. He further noted that the investigation had been completed on 13 December 2010 and that the applicant had been indicted. On 14 December 2010, being summoned to the GPO’s premises in order to study the case-file, the applicant had failed to do so and, according to Internet sources, had held a press conference instead.

According to the investigator, during the press conference the applicant:

“... with a view to avoiding criminal responsibility for crimes committed, distorting public opinion about crimes committed by him, discrediting the prosecuting authorities and influencing the upcoming trial on the merits, gave comments regarding the charges against him.

Thus, Y. Lutsenko disclosed materials of the pre-trial investigation, distorted information about his case known to him, tried to impose his views on society as to his alleged innocence and to blame others for the crime committed, although during the entire time of the pre-trial investigation Y. Lutsenko refused to give any testimony on the merits of the charge against him.”

The investigator further noted in his application that the applicant had failed to study the case file in an appropriate manner. According to him, on 15 December 2010 the applicant was given the case-file materials and was informed that he was able to study the case file everyday from 9 a.m. to 6 p.m. However, on that date he only studied the case-file materials for five minutes. On 16, 17, 20 and 24 December 2010 the applicant failed to appear at all and on 21, 22 and 23 December the applicant only studied the case file for around two hours. Moreover, the applicant continued giving interviews in order to distort public opinion and to influence the investigation and trial. The investigator concluded that the applicant should be detained because he had committed a serious crime, had impeded the investigation by purposefully delaying the investigation, had constantly avoided appearing before the investigator, had not complied with the investigator’s decisions and had put pressure on witnesses by discrediting them, therefore seeking to avoid criminal liability.

27. On the same date the First Deputy Prosecutor General approved the above application for the applicant’s arrest.

D. The applicant’s arrest and detention

28. On Sunday 26 December 2010 at 12.45 a.m. the applicant was arrested near his house by officers of the Security Service and the GPO investigator in the framework of the second criminal case.

29. According to the applicant, during his arrest, he was not informed of 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. According to the Government, the applicant was served with a copy of the decision to institute the second criminal case against him, but refused to sign it.

30. The record of the applicant’s arrest indicated that witnesses had pointed to the applicant as a person who had committed a crime and that his detention was necessary in order to prevent him from avoiding participating in or jeopardising the investigation, to exclude the possibility of continuation of criminal activities by him and to ensure his isolation from society. It was further indicated that there was other (unspecified) information that gave grounds to suspect the applicant of committing a crime. The arrest record also contained reference to Article 364 § 3 of the Criminal Code. According to the record, the applicant refused to sign it.

31. On 27 December 2010 the applicant was taken to the Pechersky Court. His lawyer found out about the hearing twenty minutes prior to its start. At the beginning of the hearing, the applicant’s lawyer asked for the media to be present, given that the applicant’s arrest involved a matter of significant public interest. The prosecutor objected to this request on the grounds that the proceedings did not concern the applicant’s arrest in the second criminal case, but rather the GPO’s application in relation to the first criminal case to alter the preventive measure concerning the applicant from a written obligation not to abscond to that of being held in custody. According to the applicant, only at this point did he and his lawyer find out that the hearing concerned the GPO’s application to change the preventive measure affecting the applicant and not the grounds for his arrest. The applicant complained of irregularities in his arrest, but the prosecutor repeatedly stressed that his arrest was not under examination at the hearing. The applicant and his lawyer then asked the court to adjourn the hearing in order to study the GPO’s application and its supporting materials and to present documents concerning the applicant’s personal situation. The court rejected the request as unsubstantiated. It noted in particular that the applicant had already explained his personal situation and that nobody had contested its veracity.

32. The court allowed the application and ordered the applicant’s detention, 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 investigative actions and decisions of the investigator, that he was accused of a crime punishable by imprisonment from seven to twelve[1] 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 court further rejected written request by seven Members of Parliament for the applicant’s release on bail on their guarantee.

33. The applicant’s lawyer appealed against the decision of 27 December 2010 to the Kyiv City 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, and 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 his client had not known the grounds for arrest well in advance of the hearing and that the court had refused to postpone the hearing, having put them, therefore, 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 seek to evade the investigation or jeopardise it. The lawyer also pointed out that the first-instance 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.

34. On 5 January 2011 the Kyiv City Court of Appeal rejected the appeal and upheld the decision of the first-instance court. It rejected the applicant’s complaints as being unsupported by the case-file materials. It also rejected written request by twenty nine Members of Parliament, supported by the Ukrainian Ombudsman, for the applicant’s release on bail on their guarantee.

35. On 16 February 2011 the Pechersky Court prolonged the applicant’s detention up to four months. This decision was upheld by the Kyiv Court of Appeal.

36. On 21 April 2011 the Kyiv City Court of Appeal prolonged the applicant’s detention for up to five months. It noted that despite the fact that the applicant had completed the study of the case-file materials, there were still investigative actions to be conducted with the applicant’s co-defendant, Mr P., and the lawyers. It further noted that there were no grounds to change the preventive measure applied to the applicant, taking into account the gravity of the charges against him, his family status and state of health.

37. On 23 May 2011 the Pechersky Court upheld the applicant’s detention pending trial without fixing any deadline.

38. On 27 February 2012 the applicant was found guilty and sentenced to four years’ imprisonment and confiscation of property.

39. On 16 May 2012 the Kyiv City Court of Appeal upheld the judgment of the first instance court. The applicant appealed in cassation and these proceedings are still pending.

II. RELEVANT LAW AND PRACTICE

A. Relevant domestic law and practice

1. Constitution

40. The relevant provisions of the Constitution of Ukraine provide:

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...”

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