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Cite as: [2012] ECHR 590

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FIFTH SECTION

CASE OF LUTSENKO v. UKRAINE

(Application no. 37645/10)

JUDGMENT

STRASBOURG

5 April 2012

This judgment is final but 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 Committee composed of:

Mark Villiger, President,
Ganna Yudkivska,
André Potocki, judges,
and Stephen Phillips, Deputy Section Registrar,

Having deliberated in private on 13 March 2012,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 37645/10) 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 Igor Anatolyevich Lutsenko (“the applicant”), on 20 June 2010.

The applicant was represented by Mr Oleg Ishchenko, a lawyer practising in Kryvyy Rig. The Ukrainian Government (“the Government”) were represented by their Agents, Ms Valeria Lutkovska and Nazar Kulchytskyy, of the Ministry of Justice.

On 1 December 2010 the application was communicated to the Government. In accordance with Protocol No. 14, the application was allocated to a Committee of three Judges.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1959 and lives in Kryvyy Rig.

On 29 September 2009 the local prosecutors instituted criminal proceedings against him on suspicion of bribery.

On 30 September 2009 the applicant was arrested under Article 115 of the Code of Criminal Procedure.

On 2 October 2009 the Dzerzhynskyy District Court of Kryvyy Rig (“the District Court”) remanded the applicant in custody on the ground that he might abscond, obstruct justice and continue criminal activities.

On 18 November 2009 the same court extended the maximum period of the applicant’s detention to four months (until 29 January 2010) on similar grounds.

As it appears from the case file, on 29 January 2010, following the completion of the pre-trial investigation, the prosecutors sent the case to the Dnipropetrovsk Regional Court of Appeal (“the Court of Appeal”) to determine which court had jurisdiction. On 8 February 2010 the latter court determined that the case should be examined by the District Court and forwarded the case to that court for trial.

On an unspecified date the applicant’s representative asked the District Court to release the applicant from detention as the time-limit for his detention had expired on 29 January 2010.

On 9 March 2010, at the committal hearing, the court rejected the request stating that on 29 January 2010 the case had been sent to the Court of Appeal and, subsequently, to the District Court for trial. It further held that there were no grounds for changing the applicant’s preventive measure. It did not fix any time-limit for the applicant’s subsequent detention.

On 7 June 2010 the applicant and his representative requested the court to change his preventive measure from detention on remand to undertaking not to abscond. On the same day the court rejected the request due to the gravity of charges against the applicant and because he did not plead guilty and might obstruct justice at liberty. It did not fix any time-limit for the applicant’s further detention.

According to the Government, on 23 May 2011 the District Court convicted the applicant and sentenced him to an unspecified term of imprisonment on probation. On 10 October 2011 the Court of Appeal upheld that judgment.

II. RELEVANT DOMESTIC LAW

The relevant provisions of the domestic law pertinent to the issue of the applicant’s pre-trial detention are summarized in the cases of Nevmerzhitsky v. Ukraine, no. 54825/00, §§ 53 54, ECHR 2005 II (extracts), and Yeloyev v. Ukraine, no. 17283/02, § 35, 6 November 2008.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

The applicant complained that his detention since 29 January 2010 had been unlawful. He invoked Articles 1 and 5 § 1 (c) of the Convention. The Court considers that the complaint should be examined solely under Article 5 § 1 (c) of the Convention, which reads as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...”

The Government contested the applicant’s complaint.

A. Admissibility

The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

The Court reiterates that, in proclaiming the right to liberty, Article 5 § 1 of the Convention contemplates the physical liberty of the person and its aim is to ensure that no one should be dispossessed of this liberty in an arbitrary fashion. The list of exceptions to the right to liberty secured in Article 5 § 1 is an exhaustive one and only a narrow interpretation of those exceptions is consistent with the aim of that provision (see Doronin v. Ukraine, no. 16505/02, § 52, 19 February 2009).

Turning to the circumstances of the case, the Court notes that between 29 January and 9 March 2010 the applicant’s pre-trial detention was not covered by any court decision. It further notes that, although his subsequent detention was covered by the court decisions of 9 March and 7 June 2010, those decisions did not contain any reasoning and/or did not fix any time-limits for his continued detention, which lasted, for the purposes of Article 5 § 1 (c) of the Convention until 23 May 2011, the date of the applicant’s conviction.

The Court has previously found a violation of Article 5 § 1 of the Convention in a number of similar cases against Ukraine, where continued detention before or during trial was not covered by any court decision (see, for instance, Nikolay Kucherenko v. Ukraine, no. 16447/04, §§ 37-38, 19 February 2009) or where the courts failed to give reasons for their decisions authorising detention or to fix a time-limit for such detention (see, for instance, Yeloyev, cited above, §§ 52-55, and Doronin, cited above, § 59). The Court also found that the above practice was a recurrent problem of structural nature in Ukraine (see Kharchenko v. Ukraine, no. 40107/02, §§ 98 and 101, 10 February 2011). There are no arguments in the present case capable of persuading the Court to reach a different conclusion. It concludes, therefore, that the applicant’s detention from 29 January 2010 to 23 May 2011 was unlawful.

There has accordingly been a violation of Article 5 § 1 (c) of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account.

FOR THESE REASONS, THE COURT UNANIMOUSLY

Declares the application admissible;

Holds that there has been a violation of Article 5 § 1 (c) of the Convention.

Done in English, and notified in writing on 5 April 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Mark Villiger
Deputy Registrar President