Communicated on 10 November 2015
FIFTH SECTION
Application no. 6251/14
Igor Viktorovych LUTSENKO
against Ukraine
lodged on 30 December 2013
STATEMENT OF FACTS
The applicant, Mr Igor Viktorovych Lutsenko, is a Ukrainian national, who was born in 1978 and lives in Kyiv. He is represented before the Court by Ms Y.O. Zakrevska, a lawyer practising in Kyiv.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
At the material time the applicant was a journalist, a public activist and an assistant to a member of the Ukrainian Parliament.
1. Public meeting of 20 April 2013 and ensuing proceedings
At 1 p.m. on 20 April 2013 the applicant took part in a public meeting to protest against the removal of trees and green area along Dniprovska Street in Kyiv. The meeting took place in that street.
At 3 p.m., while the meeting was still taking place, a police officer approached the applicant, seized him and dragged him to a police car. The applicant was handcuffed.
At 3.20 p.m. the applicant arrived at the Obolonskyy District Police Station of Kyiv. No report on administrative arrest was prepared.
At 3.30 p.m. the police drew up a report on the administrative offence, stating that the applicant had maliciously disobeyed a lawful order by a police officer and had therefore committed an administrative offence under Article 185 of the Code of Administrative Offences (“the CAO”). In the section describing the actions which had constituted the administrative offence, the report stated that the applicant had refused to go with a police officer to the police car, that he had grabbed hold of the police officer’s clothing and that he had tried to throw himself to the ground. The applicant stated in the report that he had not received any lawful orders from police officers before the arrest and that two people, P. and Ch., had been witnesses to his arrest.
At 6 p.m. the applicant was released.
On 18 July 2013 the Obolonskyy District Court of Kyiv found the applicant guilty of malicious disobedience to a lawful order by a police officer and punished him with a fine of 255 Ukrainian hryvnias. The court referred in its decision to the police reports and witness statements. It refused the applicant’s request to hear evidence from P. and Ch. Relying on the evidence available to it, the court also dismissed as unsubstantiated the applicant’s allegation that he had not received any lawful order before his arrest.
The applicant appealed, arguing that the first-instance court had failed to establish the facts and had refused to question P. and Ch., who had been witnesses to his arrest.
On 5 September 2013 the Kyiv Court of Appeal dismissed an appeal by the applicant, finding that the decision of the first-instance court had been lawful and substantiated.
2. Events of 16 August 2013 and ensuing proceedings
On 16 August 2013 the applicant, acting in his capacity as an assistant to a member of parliament, went to the premises of Kyiv City Council. While he was in the meeting chamber, at a time when no session was being held, a person in civilian clothes approached him and requested that he leave the chamber. The applicant stayed in the chamber. Five minutes later police officers entered the chamber and arrested him.
The applicant was taken to the Shevchenkivskyy District Police Station of Kyiv. A report on an administrative offence under Article 185 of the CAO was prepared stating that the applicant had maliciously disobeyed a lawful order by a police officer to leave the meeting chamber of Kyiv City Council. The applicant was then informed that the man in civilian clothes who had requested that he leave the chamber had been a police officer.
A report of an arrest for an administrative offence was also drawn up.
On the same day the applicant was brought before the Shevchenkivskyy District Court of Kyiv for the hearing of his administrative case. The court found the applicant guilty of maliciously disobeying a lawful order by a police officer and sentenced him to five days’ detention.
The applicant appealed.
On 21 August 2013 the applicant was released, having served the sentence.
On 26 September 2013 the Kyiv Court of Appeal dismissed an appeal by the applicant, finding that the decision of the first-instance court had been lawful and substantiated. The Court of Appeal allowed a request by the applicant to examine the police officers; however, those witnesses did not appear. The court then refused to examine a witness for the defence who was present in the courtroom.
B. Relevant domestic law
Code of Administrative Offences 1984
The Code of Administrative Offences reads:
Article 185. Malicious disobedience of a lawful order or demand by a police officer ...
“Malicious disobedience of a lawful order or demand by a police officer who is carrying out his official duties...
shall be punishable by a fine amounting to between eight and fifteen times the non‑taxable individual minimum monthly income; or by community work for a period ...; or by correctional labour for a period ...; or by an administrative detention of up to fifteen days.”
COMPLAINTS
1. The applicant complains that his removal from the public assembly of 20 April 2013, his ensuing detention at the police station and conviction for an administrative offence amounted to violations of Article 10 and Article 11 of the Convention.
2. The applicant complains under Article 5 § 1 of the Convention that his arrest and detention on 20 April 2013 were unlawful.
3. The applicant complains under Article 6 §§ 1 and 3 (d) of the Convention that the courts failed to examine any witnesses when considering both administrative cases.
4. The applicant complains under Article 2 of Protocol No. 7 and Article 13 of the Convention that he had no effective right of appeal against the court’s decision of 16 August 2013 given that he had served his sentence by the time his appeal was considered.
QUESTIONS TO THE PARTIES
1. With respect to the events of 20 April 2013 and the ensuing proceedings, has there been a violation of the applicant’s right to freedom of peaceful assembly, protected by Article 11 of the Convention? Has there been a violation of the applicant’s freedom of expression, protected by Article 10 of the Convention on that account?
The parties are requested to submit copies of all documents relating to the organisation of the meeting on 20 April 2013.
2. With respect to the same events, was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, did the deprivation of liberty fall within paragraph (c) of this provision?
3. With respect to the proceedings in both administrative cases against the applicant, has there been a breach of the applicant’s right to a fair trial under Article 6 §§ 1 and 3 (d) of the Convention on account of the failure by the courts to examine witnesses?
The Government are requested to submit copies of all documents relating to those administrative proceedings, including the transcripts of the hearings and the court rulings concerning the examination of witnesses.
4. With respect to the administrative case concerning the events of 16 August 2013, was the applicant afforded a right of appeal compatible with the requirements of Article 2 § 1 of Protocol No. 7?
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