European Court of Human Rights

Information Note on the Court’s case-law No. 154

July 2012

Lutsenko v. Ukraine - 6492/11

Judgment 3.7.2012 [Section V]

Article 18

Restrictions for unauthorised purposes

Deprivation of opposition leader’s liberty for reasons other than bringing him before a competent legal authority on reasonable suspicion of having committed an offence: violation

 

Facts - The applicant was a former Minister of the Interior and the leader of an opposition political party. On 2 November 2010 criminal proceedings were instituted against him for unlawfully arranging work-related benefits for his former driver. The applicant gave a written undertaking not to abscond. On 13 December 2010 he was indicted and given an appointment to inspect the case file. Following several postponements, allegedly because some parts of the file were not yet ready, the applicant and his lawyer consulted it some ten days later. In the meantime, a weekly newspaper had published an interview with the applicant in which he denied the accusations against him. On 24 December 2010 the prosecutor instituted a further set of criminal proceedings against the applicant concerning the unlawful authorisation of search and seizure activities. A day later, the investigator sought to have the undertaking given in the first set of proceedings not to abscond replaced by pre-trial detention. In support of that application, he cited the applicant’s failure to inspect the case file and participate in certain investigative actions, and alleged that the applicant’s statements to the media had sought to distort public opinion and influence the investigation and trial. The applicant was arrested the following day (26 December) near his home. He says that he was not informed of the reasons for his arrest or given a copy of the charge sheet. He was then brought before a court, which ordered his pre-trial detention as requested by the investigator, without examining his arrest. The detention was subsequently prolonged for an undetermined period.

Law - Article 5 § 1

(a) The applicant’s arrest on 26 December 2010 - The applicant was arrested in connection with the second criminal case instituted against him and was brought before a court the following day. However, the court only examined the request that had been made in the first criminal case because the prosecuting authorities effectively opposed any examination of the applicant’s arrest. Such conduct strongly suggested that the purpose of the arrest was not to bring the applicant before a competent legal authority within the same criminal case, but to ensure his availability for examination of the application for a change of the preventive measure to a custodial one in a different set of criminal proceedings. Furthermore, the applicant’s arrest did not appear to have been necessary to prevent continued offending since he had ceased to carry on his former function almost a year earlier; nor did it appear to have been necessary to prevent the applicant from fleeing as he had previously given assurances in this respect to the same investigator who had subsequently arrested him. The arrest was thus made for a purpose other than that indicated in Article 5 § 1 and was arbitrary.

Conclusion: violation (unanimously).

(b) The applicant’s detention - The court order for the applicant’s detention was based on grounds which were in themselves questionable. Deprivation of liberty could not be considered an adequate response to a problem of delay in inspecting the case file, the first ground relied on by the authorities. Furthermore, the authorities had not explained the second reason for the applicant’s detention, namely, his statements to the media. As a prominent political figure, the applicant could have been expected to express his opinion concerning the criminal proceedings against him and there had been no justification for depriving him of his liberty for exercising his freedom of speech. Further grounds that had been given for the applicant’s detention - a failure to testify and admit guilt - ran contrary to important elements of a fair trial, such as freedom from self-incrimination and the presumption of innocence. The fact that such grounds had been advanced was particularly disturbing as it indicated that an individual might be punished for relying on his or her basic right to a fair trial. Lastly, ordering further detention without fixing a time-limit was in itself contrary to the requirements of Article 5.

Conclusion: violation (unanimously).

Article 18 in conjunction with Article 5: The applicant further complained that his arrest and prosecution had been used by the authorities to exclude him from political life and from participation in upcoming parliamentary elections. The Government challenged the applicability of Article 18, arguing that his arrest and detention had been effected for the sole purpose of Article 5. The Court observed that soon after the change of power in Ukraine, the applicant, a former minister and the leader of a popular political party, had been accused of abuse of power and prosecuted. This had happened in a context described by external observers as the politically motivated prosecution of the opposition leaders and the applicant’s case - like that of the former Prime Minister Tymoshenko - had attracted important attention nationwide and internationally. There were thus sufficient reasons for the Court to examine the applicant’s detention from the viewpoint of Article 18.

The entire Convention structure was based on a rebuttable presumption that domestic authorities would act in good faith and an applicant alleging that his rights and freedoms had been limited for an improper reason had to show convincingly that the authorities’ real aim was not the proclaimed one. In the applicant’s case, the Court had already established that the grounds advanced by the authorities for depriving him of his liberty were incompatible with Article 5 and against the spirit of the Convention. Given his profile and political involvement, it was reasonable for the applicant to reply to the accusations of abuse of office through the media. However, when requesting the applicant’s detention, the prosecuting authorities had explicitly indicated the applicant’s communication with the media as one of the grounds for his detention and accused him of distorting public opinion about the crimes he had committed. Such reasoning clearly demonstrated an attempt by the authorities to punish the applicant for publicly disagreeing with the accusations against him and for asserting his innocence, which he had the right to do. In such circumstances, the Court could not but conclude that the restrictions of the applicant’s liberty had been applied 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.

Conclusion: violation (unanimously)

The Court also found a violation of the applicant’s rights under Article 5 § 2 (failure to inform the applicant of the reasons for his arrest), Article 5 § 3 (right to be brought promptly before a judge) and Article 5 § 4 (proper judicial review of the applicant’s detention).

Article 41: EUR 15,000 in respect of non-pecuniary damage.

 

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