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23 April, 2012  ▪  Alla Lazareva

Final Say

The European Court of Human Rights has yet to rule in Yuriy Lutsenko’s case

The Yuriy Lutsenko case hearing lasted a little over an hour in a packed courtroom where the audience could be heard speaking in Ukrainian, French, English and Russian. The first rows were filled largely by government representatives and diplomats.

“You need to look at what judges have been selected, and that will make it easy to predict the result,” one Ukrainian officials says to another.

“Indeed, France, Sweden, Germany,” his neighbour says as he goes through a list of judges. “Perhaps these will support Lutsenko,” he adds.

The Ukrainian government is represented by Valeria Lutkovska. She is the authorized government representative for the European Court of Human Rights and also a candidate nominated by the government for ombudsman. She speaks English. The essence of her speech is that the investigation had no choice but to arrest Lutsenko. “Otherwise it would have been impossible to prevent him from putting pressure on witnesses,” she argues.

“Yuriy Lutsenko is not a socially dangerous criminal,” defence attorney Valentyna Telychenko counters. “He has not intimidated or threatened anyone. Lutsenko willingly came to the Prosecutor General's Office and acquainted himself with the materials of the case. The government needed a trial to create and spread the image of him as a criminal during the proceedings, spoil his reputation as an opposition politician and turn supporters of his party, People’s Self-Defence, away.”

It is not very often that the European Court of Human Rights has hearings open to the public. “You need to understand the context,” says French attorney Stéphane Dunikowski, who defended a Ukrainian citizen in the same court in the Salov vs Ukraine case. “The European court is flooded with lawsuits from various countries around the world. The number of lawsuits that have been rejected and even denied consideration is phenomenally high. So if a case is accepted, it means that the first and most difficult stage has been cleared. The Lutsenko case is not only political – it is symbolic. Otherwise there would not have been a decision to hold a public debate.”

During a short break, Julie, a student from a Paris university, asked me for an explanation: “Is it true that over 80 per cent of suspects find themselves behind bars as soon as the investigation is over and cases are transferred to court, but they have not yet been found guilty?” It turns out that she came to the hearing together with several of her classmates: “In France, the practice of preventive arrests was done away with several decades ago, in particular under pressure from the European Court of Human Rights. So our teacher recommended we make this an educational trip into the past.”

After Lutsenko’s attorneys have spoken, the judges ask several questions: Is it mandatory for Ukrainian citizens to acquaint themselves with the documents of court proceedings against them? Or is it an ordinary right that a person may choose not to exercise? Why was the ex-minister arrested on charges in one case, but the arrest was documented in a different case? How soon was Lutsenko able to present his position to judges? In her replies, Lutkovska cites a press conference at which Lutsenko spoke negatively about one of the witnesses, his former deputy. “We were unable to protect people in any other way,” she emphasises. The attorneys for the defence speak about the patently political nature of the case and remind the court that it was Lutsenko’s party which successfully urged a snap elections in 2007 which removed Prime Minister Viktor Yanukovych from power. “The [Ukrainian] court ignored the request of 77 MPs to accept bail for Lutsenko, did not lend an ear to the conclusions drawn by the ombudsman and refused to release him on bail, even when the investigation was over and there was nothing with which to interfere,” Telychenko emphasized.

One senses that the sympathies of a large number of people present lie with the imprisoned man. “The government does not seem convincing in its arguments,” Nathalie Pasternak, President of the Ukrainian community in France, says. “The charges are absurd from the viewpoint of a Westerner,” adds Annick Bilobran, President of the Association of Descendants of Ukrainian Volunteers in the French Foreign Legion. Their takes coincide with the position of Lutsenko’s attorney Ihor Fomin. “The government has not presented any new arguments to the court,” he told The Ukrainian Week. “It is trying to convince the world that it allegedly prevented Lutsenko from committing who-knows-what crimes and that he allegedly put pressure on witnesses. However, they called just one person, former First Deputy Prime Minister [Andriy] Kluiev. But we know that he testified as a witness in the Pechersk District Court and did not complain of any pressure.”

Dunikowski believes that this hearing proved the Ukrainian justice system has two obvious faces. One is that preventive detention is viewed as the best guarantee that the accused will show up in court. The other one is that people who have not been found guilty are systematically put behind bars. “We had this situation in France about 20 years ago,” Dunikowski says. “But limits were placed on preventive arrests under pressure from the attorney lobby and human rights activists. Now judges must prove why they cannot limit themselves on recognisance or with bail. Moreover, there are very clear terms. We can see in the Lutsenko case that he was arrested based on the mere suspicion that he could potentially exert some pressure. The French law uses the term ‘trial of intention’. You cannot detain a person based merely on assumptions.”

After hearing both sides, the court announced that decision in the Lutsenko vs Ukraine case would be delivered later. Verdicts are often announced several days, weeks or even months later. According to the procedure, after the court has delivered its verdict, the European Court of Human Rights suggests the sides try to reach an agreement. Attorneys believe that if the court finds Lutsenko was detained for almost 18 months unlawfully, it will suggest that the Ukrainian government release him immediately on its own initiative. Moreover, the ex-Minister may claim the right to damages from the state for moral and other injuries.

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