CASE OF IGOR LUTSENKO v. UKRAINE (European Court of Human Rights) 6251/14

The case mainly concerns: the alleged violation of the applicant’s rights under Article 11, as well as Article 6 §§ 1 and 3 (d) of the Convention, in respect of the administrative offence proceedings against him related to his participation in a public protest on 20 April 2013 (the first episode); and the alleged breach of Article 2 of Protocol No. 7 on account of the examination of the applicant’s appeal against his administrative detention ordered on 16 August 2013 only after he had served it in full (the second episode).


FIFTH SECTION
CASE OF IGOR LUTSENKO v. UKRAINE
(Application no. 6251/14)
JUDGMENT
STRASBOURG
22 September 2022

This judgment is final but it may be subject to editorial revision.

In the case of Igor Lutsenko v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Mārtiņš Mits, President,
Ivana Jelić,
Kateřina Šimáčková, Judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 6251/14) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 30 December 2013 by a Ukrainian national, Mr Igor Viktorovych Lutsenko, born in 1978 and living in Kyiv (“the applicant”) who was represented by Ms Y. Zakrevska, a lawyer practising in Kyiv;

the decision to give notice of the complaints under Article 5 § 1, Article 6 §§ 1 and 3 (d) and Articles 10 and 11 of the Convention in respect of the events of 20 April 2013, as well as the complaints under Article 6 §§ 1 and 3 (d) of the Convention and Article 2 of Protocol No. 7 in respect of the events of 16 August 2013, to the Ukrainian Government (“the Government”), represented by their then Agent, Mr Ivan Lishchyna, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 24 February 2022,

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

SUBJECT-MATTER OF THE CASE

1. The case mainly concerns: the alleged violation of the applicant’s rights under Article 11, as well as Article 6 §§ 1 and 3 (d) of the Convention, in respect of the administrative offence proceedings against him related to his participation in a public protest on 20 April 2013 (the first episode); and the alleged breach of Article 2 of Protocol No. 7 on account of the examination of the applicant’s appeal against his administrative detention ordered on 16 August 2013 only after he had served it in full (the second episode).

2. On 20 April 2013 the applicant participated in a protest against a construction project in a public park in Kyiv. About an hour after the protest beginning, a police officer approached him and ordered him to get into a police car, allegedly without explanations. After the applicant refused to comply, he was handcuffed and brought to the local police station. The police drew up a report stating that the applicant had maliciously disobeyed a lawful police order (an administrative offence under Article 185 of the Code of Administrative Offences[1]) by refusing to go to a police car, grabbing hold of the officer’s clothing and trying to throw himself to the ground. The applicant stated in the report that he had not received any lawful orders from police officers and that P. and Ch., who had witnessed his arrest, could confirm his version of the events. The applicant was released later that day. On 18 July 2013 the Obolonskyy Kyiv District Court (“the Obolonskyy Court”) found him guilty as charged and fined him 255 Ukrainian hryvnias[2]. In addition to the police report, the court relied on the statements of several guards of the construction site who submitted that an aggressive looking group from among the protesters had approached the site, had damaged some equipment and had left. The applicant appealed arguing that he had not received any lawful police orders before his arrest and that no violent behaviour had ever been attributed to him. He also complained that the Obolonskyy Court had arbitrarily rejected his request for questioning witnesses P. and Ch. On 5 September 2013 the Kyiv City Court of Appeal rejected his appeal, with a reasoning similar to that of the first-instance court. Like the Obolonskyy Court, it neither commented the applicant’s request for questioning witnesses nor indicated the reasons for its rejection.

3. On 16 August 2013 the applicant entered the Kyiv City Council premises, relying on his status of a journalist and an assistant to a council member. Together with several other persons, he stayed in the empty assembly hall, from which they were removed by the police. On the same date the Kyiv Shevchenkivskyy District Court found the applicant guilty of maliciously disobeying a lawful police order in respect of that incident and sentenced him to five days’ detention. He started serving the sentence immediately. On 21 August 2013, once released, the applicant lodged an appeal. On 26 September 2013 the Kyiv City Court of Appeal dismissed it.

THE COURT’S ASSESSMENT

I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION

4. The applicant complained that his forceful removal from the public assembly on 20 April 2013, his ensuing deprivation of liberty for several hours and his conviction for an administrative offence amounted to a breach of his right to freedom of peaceful assembly under Article 11 of the Convention.

5. The Government submitted that the applicant’s complaint was manifestly ill-founded, given that: the protest had not been organised in compliance with the legal requirements (no official notification had been sent to the authorities); the police had not interfered as long as the meeting was peaceful; and the applicant’s apprehension by the police and bringing him to administrative liability had no relation to his participation in the protest, but was rather related to his aggressive behaviour.

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

7. The general principles of relevance have been summarised, for example, in Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, §§ 98-103, 15 November 2018).

8. It is undisputed in the present case that both the applicant’s presence at the construction site and his apprehension by the police were directly related to his participation in the protest against the construction works in the park (compare Chernega and Others v. Ukraine, no. 74768/10, §§ 224-28, 18 June 2019). Contrary to the Government’s submissions, it was not alleged that the applicant had manifested any violent behaviour prior to his apprehension by the police. He was therefore protected by the Article 11 safeguards (see Kudrevičius and Others v. Lithuania [GC], no. 37553/05, § 94, ECHR 2015, with further references). That conclusion stands even in the absence of prior authorisation of the protest action, given that an unlawful situation, such as the staging of a demonstration without prior authorisation where such authorisation is required under domestic law, does not per se justify an infringement of freedom of assembly (see, for example, Barseghyan v. Armenia, no. 17804/09, § 52, 21 September 2021).

9. The domestic courts found the applicant guilty of non-compliance with a lawful police order without analysing whether the police had in fact given him any order prior to having forced him into their car, and, if so, what that order had been and whether it could be regarded lawful. This is a sufficient indication for the Court of a breach of the applicant’s right to freedom of assembly under Article 11 of the Convention.

10. There has therefore been a violation of that provision.

II. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW

11. The applicant also raised other complaints which are covered by the well‑established case-law of the Court. Notably, he complained, in so far as the first episode was concerned, that the rejection by the domestic courts of his request for questioning witnesses P. and Ch. had been in breach of Article 6 §§ 1 and 3 (d) of the Convention. Furthermore, the applicant complained, in so far as the second episode was concerned, that he had been denied an effective right of appeal in criminal matters under Article 2 of Protocol No. 7, given that his appeal had been examined only after he had served his sentence in full. These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other grounds. Accordingly, they must be declared admissible. Having examined all the material before it in the light of its case‑law principles set in Murtazaliyeva v. Russia ([GC], no. 36658/05, §§ 158-68, 18 December 2018), the Court concludes that they disclose a violation of Article 6 §§ 1 and 3 (d) of the Convention, since the domestic courts failed to consider the relevance of the applicant’s request for questioning P. and Ch without providing any reasons and that undermined the overall fairness of the proceedings. Furthermore, the Court considers, in the light of its findings in Shvydka v. Ukraine (no. 17888/12, §§ 53-55, 30 October 2014), that there has also been a violation of Article 2 of Protocol No. 7.

III. OTHER COMPLAINTS

12. The applicant further complained under Article 5 § 1 of the Convention that he had been unlawfully deprived on his liberty for about three hours on 20 April 2013. He also complained that the administrative offence proceedings against him in respect of the events of that day had been in breach of his right to freedom of expression under Article 10 of the Convention. Lastly, the applicant complained under Article 6 §§ 1 and 3 (d) that not all the witnesses of the incident of 16 August 2013 had been questioned. Having regard to the facts of the case, the submissions of the parties, and its findings above, the Court considers that it has examined the main legal questions raised in the present application and that there is no need to also examine the admissibility and merits of these remaining complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

13. The applicant claimed 15,000 euros (EUR) in respect of non-pecuniary damage and 1,000 euros (EUR) in respect of costs and expenses incurred before the domestic courts and in the proceedings before the Court.

14. The Government contested those claims.

15. The Court awards the applicant EUR 6,000 in respect of non‑pecuniary damage, plus any tax that may be chargeable. Regard being had to the absence of any documents in support of the applicant’s claim in respect of costs and expenses, the Court rejects it.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaints under Article 6 §§ 1 and 3 (d) and Article 11 of the Convention in respect of the first episode, as well as the complaint under Article 2 of Protocol No. 7 in respect of the second episode, admissible;

2. Holds that there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention in respect of the first episode;

3. Holds that there has been a violation of Article 11 of the Convention in respect of the first episode;

4. Holds that there has been a violation of Article 2 of Protocol No. 7 in respect of the second episode;

5. Holds that there is no need to examine the remaining complaints;

6. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

7. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 22 September 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Martina Keller                     Mārtiņš Mits
Deputy Registrar                    President

_______________

[1] Punishable by a fine or correctional works or administrative detention for up to fifteen days.
[2] Equivalent to about 24 euros at the material time.

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