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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
