Communicated on 6 March 2014
FIFTH SECTION
Application no. 12482/14
Igor Viktorovych LUTSENKO
against Ukraine
lodged on 13 February 2014
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.
The applicant is a journalist who has been involved in political activities in Ukraine.
In particular, he has been taking part in the ongoing protests in central Kyiv since 21 November 2013 and has been one of the leaders of the Vseukrainske Ob’ednannya Maidan association founded by the protesters in December 2013.
At about 3.45 a.m. on 21 January 2014 the applicant took a protester, Mr Y. Verbytskyi, who was injured in the course of the clashes with the police in central Kyiv, to a hospital in Kyiv for medical treatment. At the hospital they were abducted by several persons in plain clothes. The applicant and Mr Verbytskyi were placed into a vehicle and taken to a forest, where they were beaten up and ill-treated by the abductors. Subsequently, the applicant and Mr Verbytskyi were taken to another place, which looked like a garage, where they were beaten up and ill-treated again. The applicant heard the abductors discussing the possibility of taking, as the applicant understood, him and Mr Verbytskyi to a police station.
About 6.00 p.m. on the same day the applicant was taken to a forest near to a village in Boryspil district, about 50 kilometres away from central Kyiv and was left there. He walked to a nearby village, from where he was brought to a hospital. According to the applicant’s medical records, he had multiple hematomas on his face and body, brain concussion and concussion of the left eye.
On 22 January 2014 the applicant was questioned by a police officer concerning the events. A criminal investigation was launched, though its outcome is unknown.
On the same day the body of Mr Verbytskyi with signs of ill-treatment was found in Boryspil district.
B. Relevant reports concerning the ongoing protests in Ukraine
During its Session in January 2014 the Council of Europe Parliamentary Assembly adopted a resolution (1974, 30 January 2014) addressing the situation relating to the ongoing protests in Ukraine. A part of the resolution reads as follows:
“The Assembly is especially concerned about credible reports of torture and maltreatment of protesters by the police and security forces. Such behavior, which has been transmitted on several television channels, is unacceptable and the perpetrators need to be punished to the full extent for the law. There cannot be any impunity for such actions. The Assembly is equally concerned about reports that journalists are specifically targeted by the security forces, in contradiction of the principle of freedom of the media. In addition, it is concerned about reports that three policemen have been stabbed, one of them fatally, by protesters. It considers that such acts of violence against servicemen are unacceptable in a democratic society and should be fully investigated.”
On 10 February 2014 the Council of Europe Commissioner for Human Rights published information on his visit to Ukraine (Kyiv, Vinnytsia, Dnipropetrovsk and Zaporizhzhya) from 5 to 10 February 2014, expressing in particular his concern over cases of “apparent abductions – accompanied by serious beatings and ill-treatment - by unidentified persons”. According to the publication, “the Commissioner and his delegation encountered allegations and other evidence of police cooperation with civilians popularly designated by the catch-all term "titushki" who were frequently armed with truncheons, bats or “traumatic” (riot-control) firearms and wearing masks”. Other relevant parts of the publication read as follows:
“[During the visit Ukrainian] prosecutorial authorities informed the Commissioner that investigations had been launched against law enforcement officials - 4 in Kyiv, 2 in Dnipropetrovsk, and 1 in Zaporizhzhya for exceeding authority, hindering the work of journalists, or unlawful arrest. Those authorities indicated that very few complaints of police misconduct had been received by them. Given the considerable amount of information indicative of ill-treatment and the infliction of violence against protesters brought to the Commissioner’s attention, he has reason to believe that the lack of complaints received by the prosecutorial authorities may be a reflection of the lack of trust by the public as to how effectively their complaints will be treated by this institution. Certain of the Commissioner’s official interlocutors recognised that thus far, investigative / prosecutorial authorities have been mainly engaged in pursuing accountability against participants in protests for organising “mass disorders” or “occupying buildings”...”
On 11 February 2014 Amnesty International issued a public statement concerning various human rights abuses during the protests in Ukraine. In particular, Amnesty International noted:
“Since the beginning of the EuroMaydan demonstrations on 21 November 2013, Amnesty International has documented numerous cases of violations of the right to peaceful assembly, excessive use of force by law enforcement officers, unfair trials and harassment of those who have lodged complaints with the authorities. The organization has also observed what appears to be the violent targeting of journalists by law enforcement officials as well as violations of the right to freedom of expression amongst journalists and some media outlets which have been prevented from covering the EuroMaydan events, and of students who have come under pressure for their participation in the events.
...
Hundreds of people have been wounded, some very seriously, as a result of interventions by law enforcement officers during the protests. There have been at least four fatalities and another man died of pneumonia after being sprayed with a water cannon in sub-zero temperatures. Some protestors have been abducted by unknown assailants, and subjected to torture and other ill-treatment – one was found dead. The recent shocking footage of a EuroMaydan protestor being stripped, humiliated and beaten by Ukrainian law enforcement officers brought international attention to the issue of torture and ill-treatment and police impunity in Ukraine.
In the case of the protestor who was stripped and beaten, the Ukrainian Minister of Internal Affairs took the unusual step of issuing a public apology for the incident, but sorry is not enough. The reality is that individuals who complain about police ill‑treatment have little chance of getting their complaints heard, let alone acted upon. There are no official statistics for the number of people that have complained about torture and other ill-treatment since the beginning of the EuroMaydan demonstrations. Amnesty International has interviewed over 20 such individuals and none of them has received any assurance or indication from the authorities that their complaints are being investigated.
...
In the absence of an independent agency responsible for receiving and investigating complaints about ill-treatment by police and other law enforcement agencies, there are no comprehensive statistics about the scale of the problem. While some people submit complaints about their ill-treatment to the Prosecutor’s Office or the police itself, many do not as they have little faith that the existing system can deliver justice; some fear repercussions for complaining...”
COMPLAINTS
The applicant complains about a violation of Articles 3, 5, 10 and 11 of the Convention on account of his abduction, detention and ill-treatment on 21 January 2014. Relying on Article 13 of the Convention, the applicant complains that there are no effective remedies for those complaints at the domestic level.
The applicant believes that his abductors were either the agents of the State or acted on the instructions of the authorities. He also argues that many other protesters were persecuted by the authorities in the same way, referring to various domestic and international reports concerning the ongoing protests in Ukraine.
The applicant states that the authorities abuse the law-enforcement machinery and the criminal justice system to persecute protesters, which makes it impossible for the applicant to have his allegations of abduction and ill-treatment adequately investigated and remedied at the domestic level. In that regard, the applicant also claims that in Ukraine there is no due procedure enabling him or others to enjoy freely the right to peaceful protest and relies on the Court’s findings in Vyerentsov v. Ukraine (no. 20372/11, §§ 54-55, 11 April 2013). The applicant further argues that the changes to the procedural regulations, enacted by the Parliament in January 2014 allegedly with the aim to quell the ongoing protests, hinder the investigation of protesters’ complaints of abuses by the agents of the State.
The applicant states that in the circumstances his life and physical well‑being are currently at risk.
The applicant also complains that generally the measures the authorities have been employing to hinder his and other protesters’ right to peaceful demonstration are contrary to Articles 3, 5, 8, 11 and 13 of the Convention and Article 1 of Protocol No. 1.
QUESTIONS TO THE PARTIES
1. Has the applicant complied with the requirement of exhaustion of domestic remedies laid down in Article 35 § 1 of the Convention in respect of all his complaints, the notice of which is being given to the Government? Have such remedies been available to him in theory and in practice, as required by Article 13 of the Convention?
2. Was the applicant subjected to torture or inhuman or degrading treatment, in breach of Article 3 of the Convention, having regard to his allegation that he was beaten up and tortured on 21 January 2014? Were the authorities responsible for the applicant’s alleged ill-treatment? Given the applicant’s allegation that his life and physical well-being are currently at risk, what measures are being taken by the Government to avoid the risk of such treatment in the future?
3. Have the domestic authorities conducted an effective investigation into the above complaint, as required by Article 3 of the Convention?
4. Was the applicant deprived of his liberty on 21 January 2014 within the meaning of Article 5 § 1 of the Convention? If so, were the authorities responsible for the deprivation of liberty? Did the deprivation of liberty fall within any of paragraphs (a), (b), (c), (d), or (e) of this provision and was in compliance with it?
5. Was there a violation of the applicant’s right to freedom of peaceful assembly, contrary to Article 11 of the Convention, regard being had to his complaints of having been abducted, detained and ill-treated on 21 January 2014 for taking part in peaceful protests?
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