TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): That plainly is different to innocence.
AP1 (Applicant): It's wider.
AP1 (Applicant): And as I've already indicated, in English-speaking jurisdictions at least, it tends to be used to define the circumstances in which a conviction is quashed.
AP1 (Applicant): If that is the language, if that's what miscarriage of justice means, it then becomes difficult to see how the United Kingdom's position is consistent with Article 14.6.
AP1 (Applicant): Why should the payment of compensation under Article 6 be linked to the outcome of a retrial?
AP1 (Applicant): In the applicant's submission, the United Kingdom government position doesn't fit coherently with Article 14.6.
AP1 (Applicant): It's a compromise, and it's a compromise that is not consistent with Article 6.2.
AP1 (Applicant): In contrast, the applicant's submissions do fit with Article 14.6.
AP1 (Applicant): Where somebody has been acquitted, that implies there's been a miscarriage of justice.
AP1 (Applicant): It's the miscarriage of justice that allowed their conviction to be acquitted.
AP1 (Applicant): If it's fresh evidence, it's the fresh evidence that conclusively, if the acquittal is on the basis of fresh evidence, that fresh evidence has conclusively demonstrated the miscarriage of justice, because that was the basis upon which the miscarriage of justice was established.
AP1 (Applicant): The second point Maloney makes, the UK government make, is that there is an inconsistency if the applicant is correct.
AP1 (Applicant): There's compensation payable when there is fresh evidence, but no compensation when, for example, there's judicial error.
AP1 (Applicant): But that inconsistency doesn't undermine the applicant's arguments.
AP1 (Applicant): That inconsistency isn't inconsistent with the presumption of innocence, because the reasons for refusing compensation don't suggest that the applicant for compensation is in any way guilty.
AP1 (Applicant): And the inconsistency arises, if it is an inconsistency, from the fact that the international community in provisions such as Article 14.6
AP1 (Applicant): has decided to prioritize the payment of compensation when fresh evidence comes to light.
AP1 (Applicant): The inconsistency exists on the UK government's arguments, because even if somebody is wholly innocent, they do not get compensation if the reason why their conviction was quashed was judicial error.
AP1 (Applicant): The third point that I ought to just address briefly is that the United Kingdom government refers at times, and has repeatedly referred to, case law regarding civil litigation and the right of individuals to bring claims for damages against people who've been acquitted.
AP1 (Applicant): But in those circumstances, different considerations apply.
AP1 (Applicant): Of course there is, in those circumstances, the need to protect the right of the individual to bring a claim under tort law of a state.
AP1 (Applicant): Here, the state is deciding on its own liability for its decision to bring a prosecution.
AP1 (Applicant): That's why the compensation decisions the applicant relies upon are relevant.
AP1 (Applicant): Finally, the United Kingdom government made brief reference to BOK and the Netherlands.
AP1 (Applicant): In my submission, BOK and the Netherlands is irrelevant and should be ignored, because it's concerned a second set of proceedings after there'd been an initial set of proceedings intended to comply with Article 6.2.
AP1 (Applicant): That's why this Court was not able to distinguish Puig Penella.
AP1 (Applicant): And in my submission, Puig Penella is far closer to the situation in this case and should be followed.
AP1 (Applicant): There's one final general point that I'd make and arises partly from what has happened this morning.
AP1 (Applicant): One ought to, in my submission, when looking at this case, remember this is an applicant who faced one of the most serious allegations a mother can face, that she'd killed her child.
AP1 (Applicant): It resulted in her being separated from her child and imprisoned.
AP1 (Applicant): That was set aside.
AP1 (Applicant): However, since then, because of the compensation scheme, the United Kingdom government has said repeatedly in proceedings and proceedings this morning that she may still have been convicted.
AP1 (Applicant): There was sufficient evidence potentially to convict her.
AP1 (Applicant): That is likely in the minds of anybody who's followed these proceedings, and there has been interest in these proceedings in the United Kingdom media, to result in her being identified as somebody who might be guilty of one of the most serious offences a mother can commit.
AP1 (Applicant): In my submission, that is inconsistent with the presumption of innocence.
Dean Spielmann (JudgeP): Thank you very much, Mr. Southey.
Dean Spielmann (JudgeP): The decision or the judgment will be delivered later.
Dean Spielmann (JudgeP): I declare open the public hearing on the admissibility and merits in the case of Lutsenko against Ukraine.
Dean Spielmann (JudgeP): The case was lodged on the 21st of January, 2011, with the court under Article 34 of the convention by a Ukrainian national, Mr. Yuriy Vitaliyovych Lutsenko.
Dean Spielmann (JudgeP): The application was allocated to the Fifth Section of the court, pursuant to Rule 52, paragraph 1 of the rules of the court.
Dean Spielmann (JudgeP): The application was communicated to the government on the 5th of April, 2011.
Dean Spielmann (JudgeP): The government are represented by their agent, Ms. Lutkovska, assisted by Mr. Kulchytskyy,
Dean Spielmann (JudgeP): counsel, and by Mr. Bem, Mr. Zinchenko,
Dean Spielmann (JudgeP): and Mr. Loban, advisors.
Dean Spielmann (JudgeP): The applicant is represented by Mr. Fomin, lawyer,
Dean Spielmann (JudgeP): and by Ms. Telychenko, lawyer,
Dean Spielmann (JudgeP): assisted by Mrs. Tsiukalo, counsel.
Dean Spielmann (JudgeP): Ms. Lutkovska for the government will speak first,
Dean Spielmann (JudgeP): and then Ms. Telychenko and Mr. Fomin
Dean Spielmann (JudgeP): I call Ms. Lutkovska.
GR1 (Government): Honorable court, first of all, the government of Ukraine would like to uphold their position laid down in their observation on the 3rd June 2011 in the instant case.
GR1 (Government): But therefore, before answering questions put by the court, I would like to turn briefly to the facts in the present case.
GR1 (Government): And in this connection, I would like to note two principal aspects.
GR1 (Government): First, two criminal proceedings were instituted against the applicant by the prosecutor's office.
GR1 (Government): The first one was instituted on the 2nd November 2010.
GR1 (Government): The general prosecutor's office asserted that while being minister of interior from December 2007 to January 2010, the applicant unlawfully arranged for different work-related benefits for his driver.
GR1 (Government): Hereafter, I will call this case the first criminal proceedings.
GR1 (Government): On 24th of December 2010, the second criminal proceedings was instituted against the applicant.
GR1 (Government): And under this case, the applicant was suspected for allowing unlawful request for his subordinates on continuation of applying special investigative measures.
GR1 (Government): Hereafter, I will call this case the second criminal proceedings.
GR1 (Government): Next, the present case has a very clear time limitation.
GR1 (Government): In particular, this case is restricted following period of time from the 26th of December 2010 when the applicant was arrested until the 5th January 2011 when the court of appeal rejected the appeal and upheld the decision of the first instance court on detention of the applicant for two months.
GR1 (Government): Besides, I would like to draw the court's attention to its established case law, according to which the court, in the course of consideration of the case, is bound by the facts and circumstances underlying the application.
GR1 (Government): In particular, in the case of Pyraniak versus Ukraine and Shalimov versus Ukraine, the court established that if the applicant submitted new compliance about violation of his rights after the government had lodged their observation as to initial application, such compliance should be considered separately.
GR1 (Government): Anyway, the government have not received any new compliance from the applicant as to the further period of detention.
GR1 (Government): Returning to the question set by the court, I would like to note the following.
GR1 (Government): Thus, answering the question concerning Article V of the convention, it is important to emphasize that the applicant's arrest on the 26th of December 2010 was performed within frames of the second criminal proceedings.
GR1 (Government): This arrest lasted approximately 20 hours.
GR1 (Government): The main reason for the arrest was the fact that at that very moment, there was a reasonable suspicion of the applicant having committed criminally punishable acts which had underlined institution of the second criminal proceedings.
GR1 (Government): In particular, the applicant's former subordinates, who at that moment had witness status, indicated the applicant as a person who had committed a crime.
GR1 (Government): Thus, judging by their testimonies, at the moment when the applicant was arrested, national authorities had the following information at their disposal.
GR1 (Government): In particular, from the 9th August 2008 till the 4th August 2009, special investigative measures were applied by Ministry of Interior to a suspected person.
GR1 (Government): On the 4th of August 2009, special investigative case was terminated.
GR1 (Government): The decision on termination became final and was neither quashed nor challenged.
GR1 (Government): In spite of this, the applicant, contrary to valid national legislation, nine days after the termination of the aforementioned case, signed a decision on extending the time limit of application of the special investigative measure.
GR1 (Government): Hence, it is beyond any doubt that at the moment of the applicant's arrest, national authorities had sufficient information, which, as it is required by the court's case law, would satisfy an objective observer that the applicant might have committed an offense.
GR1 (Government): Besides, in case of Lawless v. Ireland,
GR1 (Government): the court noted that arrest of a person was justified under Article V of the Convention not only when there was reasonable suspicion of persons committing a crime, but also if the purpose of arrest was further consideration of the charges brought against the person by the national court.
GR1 (Government): In this connection, it is worth mentioning that the second criminal proceedings, after consolidation with the first one, was sent to the court, which had to consider the issue of the applicant's guilt in the aforementioned crimes.
GR1 (Government): Hence, I would like to point out that the mere fact that the case was subsequently sent to the court is a corroboration of reasonableness of suspicion as to the applicant, as well as achievement of the purpose for which the arrest had been effected.
GR1 (Government): Anticipating the court's question as to the fact whether judicial control over lawfulness of the applicant's arrest on the 26th of December 2010 was performed, I would like to note the following.
GR1 (Government): First of all, on the 27th of December 2010, the applicant was brought before a judge with the purpose of choosing him preventive measure within frames of the first criminal proceedings.
GR1 (Government): Due to the fact that court's decision ordering detention of the applicant was issued within frames of the first criminal proceedings, it was inexpedient and pointless to choose one more preventive measure within frames of the second criminal proceedings, as being in detention on remand, the applicant in no way could obstruct investigation or evade justice.
GR1 (Government): Besides, on the 29th of December 2010, first and second criminal proceedings were consolidated in one, and as it has just been mentioned, on the 17th May 2011 were sent to the court for consideration on the merit of charges brought against the applicant.
GR1 (Government): Using the aforementioned approaches of the court while scrutinizing the applicant's arrest on the 26th of December 2010 within frames of the second criminal proceedings, it might be inferred that all the requirements of Article V of the Convention were met.
GR1 (Government): In this connection, I would like to emphasize one more time that, as it was already mentioned by the government of Ukraine, the applicant had all necessary facilities to challenge the lawfulness of his detention on 26th December 2010, as well as enforceable right to compensation if the court found that the arrest had been unlawful.
GR1 (Government): In spite of this, the applicant did not challenge the lawfulness of his arrest.
GR1 (Government): At the same time, the existence of such possibility was, in fact, corroborated in government's observations by examples from national court's case law.
GR1 (Government): Therefore, I would like to reiterate that in this part, the applicant, contrary to Article 35 of the Convention, has not exhausted domestic legal remedies being at his disposal.
GR1 (Government): Honorable court, before answering the following question concerning Article V of the Convention, I would like to emphasize that further analysis will be based upon the circumstances of the first criminal proceedings under which the applicant's detention on remand was ordered.
GR1 (Government): As to the relevancy and sufficiency of arguments advanced by national courts to justify the applicant's detention, the government emphasized one more time that the subject of consideration in the present case is only the initial period of the applicant's detention, namely first two months.
GR1 (Government): In this connection, the government asserts that justification of the initial period of detention has its specific comparing to the longer period of detention.
GR1 (Government): Thus, in case of Pleshkov versus Ukraine and Khodorkovsky versus Russia Federation, the court established that in choosing a measure of restraint for the first time, the court's may rely on relatively loose presumption, such as the gravity of charges, the suspect's position in society, the nature of the impugned offenses, et cetera.
GR1 (Government): Thus, the existence of a potential risk, for example, the risk of fleeing or re-offending, cannot be demonstrated with the same degree of certitude as the existence of effect that has already occurred.
GR1 (Government): In this connection, the European Court also established that its standard of review of the original detention is usually quite smooth.
GR1 (Government): And I quote on this, and additionally to the government's observation on 3rd of June, 2011 of this issue, I would like to note that according to Article V of the Convention, mere presence of reasonable suspicion of committing a crime and potential risk of putting pressure on witnesses in the proceedings established by the court suffice for initial detention of the applicant.
GR1 (Government): Considering the case from the standpoint of the second question put by the court, the following might be inferred.
GR1 (Government): First of all, the courts of two instances which considered the applicant's case found several reasons for detention of the applicant, the most important of which was potential risk of putting pressure on witnesses in the case.
GR1 (Government): As the court found in the case of Preshkov versus Ukraine, the necessity to ensure proper administration of justice, in particular, receiving without any obstacles witness testimonies, is a relevant reason for initial detention.
GR1 (Government): But the logic of the criminal proceeding suggests that such a risk does not reduce after all witnesses are interrogated in course of the pretrial investigation stage.
GR1 (Government): As a matter of fact, the role of a witness in the criminal proceedings is finished after giving testimonies before the court, as actually only such testimonies may be taken into consideration by the court.
GR1 (Government): This, in fact, was also clearly demonstrated by the court in the aforementioned Preshkov case.
GR1 (Government): In that case, witnesses started to change before the court their testimonies given during the pretrial investigation.
GR1 (Government): This fact was explained by law enforcement authorities as a result of the applicants putting pressure on them and became the reason for his subsequent detention.
GR1 (Government): The court actually found that the initial period of the applicant's detention complied with requirements of Article V of the Convention.
GR1 (Government): As, like I have already mentioned, the subject of consideration in the instant case is restricted to a very short period of time and comprises only decision of the court of first instance and court of appeal, the aforementioned reason for restriction of the applicant's rights to liberty and security in the present case is relevant and sufficient.
GR1 (Government): Besides, national court found in their decisions that due to the aforementioned facts justifying the applicant's detention, the other preventive measures could not ensure the applicant's proper procedural behavior.
GR1 (Government): Thus, such preventive measures, like a bail or a deposit, could not have removed potential risk of putting pressure on witnesses.
GR1 (Government): Consequently, Honorable Court, the government of Ukraine consider that in the present case, arrest of the applicant and court's decision about his detention complied with requirements of Article V of the Convention.
GR1 (Government): Hence, as restriction of the applicant's liberty was a factor for purpose established in Article V of the Convention, Article XVIII of the Convention cannot be applied in the present case.
GR1 (Government): Thus, I would like to draw the Court's attention to the fact that the applicant, in his application to the Court of the 11th of January, 2011, does not mention Article XVIII of the Convention.
GR1 (Government): In particular, he does not indicate about the fact that his arrest and ensuing detention were affected for the purpose of removing him from political life.
GR1 (Government): Similarly, there is no single indication about political pressure in these commentaries to the government observations, in spite of the fact that the government's position as to Article XVIII of the Convention was provided in this document.
GR1 (Government): And only in the request on the 11th of January, 2011, on giving priority to his application, the applicant alleged about the possible exertion of pressure upon him in the CISO with the purpose of removing him from political activity at that moment, as well as in the course of forthcoming election process.
GR1 (Government): In corroboration of the aforementioned, the applicant refers to the fact that he was a politician during the preceding 10 years, as well as the allegation about suppression of oppositional parties in Ukraine.
GR1 (Government): Honorable Court, I would like to draw your attention to the fact that Article XXXIV of the Convention does not provide for the right to lodge a complaint in abstracto.
GR1 (Government): An individual claiming about violation of his rights set forth in the Convention should be direct victim of such violation.
GR1 (Government): In cases like the instant one, an individual cannot be a potential victim or to complain about the general facts.
GR1 (Government): At the same time, the applicant does not need to refer to the specific article of the Convention, but he should at least file a clear complaint.
GR1 (Government): But even if the aforementioned request of the applicant mentions only about hypothetical possibility of pressure, therefore, in the government's opinion, this issue cannot be considered by the court.
GR1 (Government): Thus, even assuming that aforementioned allegations may be regarded as a real complaint about specific and not hypothetical violation, I would like to note that the court in the case of Khodorkovsky versus Russia Federation noted that the status of a politician cannot grant immunity from criminal prosecution.
GR1 (Government): At the same time, the court noted in the case above that the burden of proof in corroboration of the fact of prosecution on political reasons in such cases should rest with the applicant.
GR1 (Government): In this connection, the court established in the aforementioned case and case of Gusinsky versus Russia Federation that a mere suspicion that a person is deprived of its liberty in defiance of Article 18 of the Convention does not suffice.
GR1 (Government): Quite the contrary of the applicant should adduce clear facts which would clearly indicate that authorities used their powers for some other purpose than those defined in Article 5 of the Convention.
GR1 (Government): In the instant case, the applicant corroborates existence of political purpose in his prosecution only on account of general allegations concerning political suppression of opposition in Ukraine.
GR1 (Government): Bearing in mind the aforementioned, the government of Ukraine considers that Article 18 of the Convention cannot be applied in the instant case.
GR1 (Government): Thus, summarizing all the aforementioned, I would like to note that the following may be inferred.
GR1 (Government): First, the applicant has not exhausted available and effective domestic legal remedies provided by national legislation in part of his complaint concerning the arrest on the 26th of December, 2010.
GR1 (Government): Therefore, his application in this part should be declared inadmissible by the court.
GR1 (Government): Second, supporting the aforementioned position, the government of Ukraine consider that the applicant's arrest on the 26th of December, 2010 was based on reasonable suspicion of the applicants committing a crime, was effective for the lawful purpose in bringing him before the competent legal authority, and was necessary in this stage of investigation.
GR1 (Government): Third, the government of Ukraine consider that the applicant's detention on remand was based on the necessity of receiving proper testimonies within frames of the criminal proceedings, including the necessity of receiving those testimonies by the court, which according to the court's case law is a relevant and sufficient purpose for the initial decision ordering detention on remand.
GR1 (Government): Besides, the government of Ukraine draws the following conclusions as to the Article 18 of the Convention.
GR1 (Government): First, the government one more time emphasize that the burden of proof as to existence of the purpose of detention other than those provided for in Article 5 of the Convention rests with the applicant.
GR1 (Government): At the same time, the applicant in the present case makes an assumption as to exertion upon him of pressure based on political reasons only in the request of giving priority to his application.
GR1 (Government): His allegations in this part are corroborated only by abstract references to suppression of opposition in Ukraine.
GR1 (Government): Therefore, the court cannot consider the complaint lodged in abstract.
GR1 (Government): Second, in this regard, the government of Ukraine assert that the applicant was deprived of his liberty pursuant to national legislation on the basis of reasonable suspicion for the purpose of receiving proper testimonies that is with the purpose provided for in Article 5 of the Convention.
GR1 (Government): Therefore, the government of Ukraine kindly ask the court to state that there has been no violations of the applicant's right in the present case.
Dean Spielmann (JudgeP): Thank you very much, Miss Lutkovska.
Dean Spielmann (JudgeP): I call now Miss Telychenko, please.
AP1 (Applicant): Високоповажний суд. Аплікант Юрій Луценко очолює опозиційну політичну партію «Народна самооборона».
AP1 (Applicant): В 2007 році до парламенту було обрано 18 депутатів від цієї партії.
AP1 (Applicant): Зараз їх у парламенті шість, вони належать до опозиції.