The case mainly concerns: the alleged violation of the applicant\u2019s rights under Article 11, as well as Article 6 \u00a7\u00a7 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\u2019s appeal against his administrative detention ordered on 16\u00a0August 2013 only after he had served it in full (the second episode).<\/p>\n
FIFTH SECTION This judgment is final but it may be subject to editorial revision.<\/p>\n In the case of Igor Lutsenko v. Ukraine,<\/strong><\/p>\n The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Having regard to:<\/p>\n the application (no.\u00a06251\/14) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) on 30 December 2013 by a Ukrainian national, Mr Igor Viktorovych Lutsenko, born in 1978 and living in Kyiv (\u201cthe applicant\u201d) who was represented by Ms Y. Zakrevska, a lawyer practising in Kyiv;<\/p>\n the decision to give notice of the complaints under Article 5 \u00a7 1, Article\u00a06\u00a0\u00a7\u00a7\u00a01 and 3 (d) and Articles 10 and 11 of the Convention in respect of the events of 20\u00a0April 2013, as well as the complaints under Article 6 \u00a7\u00a7 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 (\u201cthe Government\u201d), represented by their then Agent, Mr Ivan Lishchyna, and to declare inadmissible the remainder of the application;<\/p>\n the parties\u2019 observations;<\/p>\n Having deliberated in private on 24 February 2022,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n SUBJECT-MATTER OF THE CASE<\/strong><\/p>\n 1. The case mainly concerns: the alleged violation of the applicant\u2019s rights under Article 11, as well as Article 6 \u00a7\u00a7 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\u2019s appeal against his administrative detention ordered on 16\u00a0August 2013 only after he had served it in full (the second episode).<\/p>\n 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\u2019s 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 (\u201cthe Obolonskyy Court\u201d) found him guilty as charged and fined him 255\u00a0Ukrainian 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\u00a0September 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\u2019s request for questioning witnesses nor indicated the reasons for its rejection.<\/p>\n 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\u2019 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.<\/p>\n THE COURT\u2019S ASSESSMENT<\/strong><\/p>\n I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION<\/strong><\/p>\n 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.<\/p>\n 5. The Government submitted that the applicant\u2019s 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\u2019s 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.<\/p>\n 6. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n 7. The general principles of relevance have been summarised, for example, in Navalnyy v. Russia [GC], nos. 29580\/12 and 4 others, \u00a7\u00a7\u00a098-103, 15\u00a0November 2018).<\/p>\n 8. It is undisputed in the present case that both the applicant\u2019s 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, \u00a7\u00a7 224-28, 18 June 2019). Contrary to the Government\u2019s 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 Kudrevi\u010dius and Others v. Lithuania [GC], no.\u00a037553\/05, \u00a7\u00a094, ECHR 2015, with further references). That conclusion stands even in the absence of prior authorisation\u00a0of the protest action, given that an unlawful situation, such as the staging of a demonstration without\u00a0prior authorisation where such authorisation is required under domestic law, does not\u00a0per se\u00a0justify an infringement of freedom of assembly (see, for example, Barseghyan v.\u00a0Armenia, no.\u00a017804\/09, \u00a7 52, 21 September 2021).<\/p>\n 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\u2019s right to freedom of assembly under Article 11 of the Convention.<\/p>\n 10. There has therefore been a violation of that provision.<\/p>\n II. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW<\/strong><\/p>\n 11. The applicant also raised other complaints which are covered by the well\u2011established 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\u00a06 \u00a7\u00a7 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\u00a035 \u00a7\u00a03\u00a0(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\u2011law principles set in Murtazaliyeva v. Russia ([GC], no.\u00a036658\/05, \u00a7\u00a7\u00a0158-68, 18 December 2018), the Court concludes that they disclose a violation of Article 6 \u00a7\u00a7 1 and 3 (d) of the Convention, since the domestic courts failed to consider the relevance of the applicant\u2019s 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.\u00a017888\/12, \u00a7\u00a7\u00a053-55, 30\u00a0October 2014), that there has also been a violation of Article 2 of Protocol No. 7.<\/p>\n III. OTHER COMPLAINTS<\/strong><\/p>\n 12. The applicant further complained under Article 5 \u00a7 1 of the Convention that he had been unlawfully deprived on his liberty for about three hours on 20\u00a0April 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 \u00a7\u00a7 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 C\u00e2mpeanu v.\u00a0Romania [GC], no.\u00a047848\/08, \u00a7\u00a0156, ECHR 2014).<\/p>\n APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/strong><\/p>\n 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.<\/p>\n 14. The Government contested those claims.<\/p>\n 15. The Court awards the applicant EUR 6,000 in respect of non\u2011pecuniary damage, plus any tax that may be chargeable. Regard being had to the absence of any documents in support of the applicant\u2019s claim in respect of\u00a0costs and expenses, the Court\u00a0rejects it.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1. Declares the complaints under Article 6 \u00a7\u00a7 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;<\/p>\n 2. Holds that there has been a violation of Article 6 \u00a7\u00a7 1 and 3 (d) of the Convention in respect of the first episode;<\/p>\n 3. Holds that there has been a violation of Article 11 of the Convention in respect of the first episode;<\/p>\n 4. Holds that there has been a violation of Article 2 of Protocol No. 7 in respect of the second episode;<\/p>\n 5. Holds that there is no need to examine the remaining complaints;<\/p>\n 6. Holds<\/p>\n (a) that the respondent State is to pay the applicant, within three months, EUR\u00a06,000\u00a0(six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/p>\n (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;<\/p>\n 7. Dismisses the remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 22 September 2022, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Martina Keller \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 M\u0101rti\u0146\u0161 Mits _______________<\/p>\n [1] Punishable by a fine or correctional works or administrative detention for up to fifteen days.
\nCASE OF IGOR LUTSENKO v. UKRAINE<\/strong>
\n(Application no. 6251\/14)<\/em>
\nJUDGMENT
\nSTRASBOURG
\n22 September 2022<\/p>\n
\nM\u0101rti\u0146\u0161 Mits, President,
\nIvana Jeli\u0107,
\nKate\u0159ina \u0160im\u00e1\u010dkov\u00e1, Judges,
\nand Martina Keller, Deputy Section Registrar,<\/p>\n
\nDeputy Registrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0President<\/p>\n
\n[2] Equivalent to about 24 euros at the material time.<\/p>\n