UCC Backgrounder on Politically motivated, selective Justice in Ukraine

The Ukrainian Canadian Congress (UCC) joins international governments and agencies to convey its dismay over the pressure being exerted by Ukraine’s government on political opponents, particularly the way in which court cases against political opponents are being pursued.

In addition to several politically motivated court cases, the unreasonable arrest of former Prime Minister Tymoshenko, the decisions of the court to refuse Ms. Tymoshenko’s requests for a reasonable delay to prepare her defense, the denial of her requests for medical attention from her personal physician and her conviction and sentencing to a seven year sentence for the negotiation of the gas deal with Russia are disconcerting.

The criticisms of the proceedings against former Prime Minister Yuliya Tymoshenko have been summarized as follow:

–       Ms. Tymoshenko has been denied the right to a fair trial by a competent, independent and impartial court; the right in the determination of criminal charges against her on the basis of full equality and the principles of adversarial litigation.

–       She has been denied the minimum guarantee of the right to defence under Article 14 of the International Covenant on Civil and Political Rights to defence. In particular, the nature and cause of the charges against her have not been explained, adequate time and facilities have not been provided for the preparation of her defence and her ability to communicate with her counsel has been significantly restricted.

–       The daily scheduling of hearings by Pechersk District Court Judge Kireyev which lasted 9-11 hours violated the right to a defence of the defendant.  The judge further denied Ms. Tymoshenko the right to examine witnesses under the same conditions as witnesses for the prosecution.

–       Furthermore, the judge has not admitted evidence in her defense and has not allowed forensic experts to testify in court and has restricted Ms. Tymoshenko’s right to file documents and applications, to provide explanations, to make statements and petition the court. He has consistently disallowed important questions posed to witnesses and experts.

Ms. Tymoshenko is not alone in facing politically motivated, selective justice in Ukraine.  Several opposition figures are facing similar charges to those brought against Ms. Tymoshenko. These political trials are incompatible with the requirements of the Constitution and laws of Ukraine, the state’s international obligations and generally accepted norms.

An analysis by the Danish Helsinki Human Rights Group has evaluated the situation, not with the purpose of determining the guilt or innocence of Ms. Tymoshenko and other defendants, but rather to determine whether the human rights of the defendants in selected politically motivated trials are being adhered to.

The following summarizes their findings:

The case against Yuliya Tymoshenko

Ms. Tymoshenko, leader of the largest opposition political party in the Verkhovna Rada “Batkivshchyna” was Prime Minister in 2005, and from 2007 to 2010. She lost to President Yanukovych in the 2010 presidential election by a narrow margin.

Since December 2010 there have been a series of investigations against her and the prosecutor general has attempted on four separate occasions to bring charges against her. She has signed undertakings not to abscond, which has prevented her from leaving her place of residence and travelling domestically and abroad without the consent of the investigator. She has appeared for questioning by the investigator in the Kyoto and the Ambulance cases no less than 42 times between December 2010 and May 2011.

Mrs. Tymoshenko was charged in 3 criminal cases for violation of Articles 364 and 365 of the Ukrainian Criminal Code for:

1. ordering the conversion of 380 million € from the sale of greenhouse gas quota according to the Kyoto agreement through the National Bank of Ukraine to Hryvnas and to deposit them in an integrated account in the State Treasury, although the money was earmarked for environmental purposes, the exchange caused a loss due to the commission paid to the National Bank of Ukraine of about 2 million Hryvnas.

2. having caused a delay in payment of customs of around 37 million Hrivnas for 1000 ambulances to be used for rural medical establishments

3. having ordered on her own without the approval of the Cabinet of Ministers the negotiator of the state owned Naftogaz to sign an agreement with Russian Gazprom on delivery of natural gas at an unfavorable price, causing a loss of around $194 million.

She was convicted in the Gas case last week.

On June 21, 2011, Ms. Tymoshenko complained to the European Court on Human Rights about violation of Article 5 §1 (c), arrest and detention not based on reasonable suspicion as her acts do not constitute a criminal offence.


The charges against Ms. Tymoshenko, Yuriy Lutsenko, and many others are criminalizing normal political decisions with which the present government disagrees; investigation and prosecution in the Criminal Justice System requires a reasonable suspicion of an offence having been committed and that it does NOT serve a political purpose

All defendants were significant members of the former government of Ukraine. Most of the charges against the former officials relate to normal policy or administrative decisions with which the present government disagrees.

Most of the charges are of a character which would never be considered a criminal offence in countries with a different legal tradition and would not be dealt with in the criminal justice system. Such activities might potentially draw political consequences for politicians or disciplinary consequences for public servants.

Most of the charges concern violations of Articles 364 (“abuse of authority or office”) and 365 (“excess of authority or official powers”) which are vaguely worded articles open to interpretation. The suspicion that these cases were politically inspired and are selective justice, abusing the criminal justice system as part of a political campaign has been voiced in the Ukrainian public and among other international observers. They have commented that:

–       political decisions are being considered criminal offences

–       mainly politicians belonging to political opposition groups have being targeted

–       the present administration has an interest in incapacitating leading opposition politicians before the upcoming elections

–       Mrs. Tymoshenko and Mr. Lutsenko were obstructed from exercising their role as party leaders through the use of detention, travel restrictions, numerous inquiries, demands to review case files in the office of the investigator daily

–       In addition to the seven year incarceration, Mrs. Tymoshenko’s sentence in the Gas case carries a three-year prohibition from holding public office, disqualifying her from participating in the next Parliamentary and Presidential elections.

–       Mr. Nemyria, the former Deputy Prime Minister of Mrs. Tymoshenko was called as a witness by the court at a time which would prevent him from going to Strasbourg when President Yanukovich was addressing the Parliamentary Assembly of the Council of Europe, Mrs. Tymoshenko herself was also prevented from attending by the travel restrictions and her ongoing trial

–       Prosecutor General Pshonka, on his appointment, was quoted as saying that he considered himself to be a member of the President’s team and would fulfill his orders.

2. The courts and the prosecution must be independent and impartial

Corruption and problems with lack of independence in the judiciary of Ukraine have been a concern of international observers, as mentioned in resolutions of the Council of Europe, the European Parliament, by European Commissioners and in corruption indexes.

According to the European Convention on Human Rights Article 6.2, anyone charged with a violation of the law must be considered innocent until proven guilty. Monitoring of the Tymoshenko case has left the impression of prosecutors and judges with limited understanding of the presumption of innocence and equality of the parties during the trial.

In addition, there is a strong tradition of politicians not respecting the independence of the judiciary in Ukraine. A recent example was a press release explaining the proper interpretation of the statement given by one of the witnesses in the Tymoshenko trial which was written by the Presidential administration, even though it appeared to be issued by the witness. Statements by leading officials, including the President and the Prime Minister, have commented on trials in such a way as to send a signal to the judges about the desired and expected outcome of the trial. In an interview on June 28, 2011i, President Yanukovych described his meeting with the chairman of the Constitutional Court concerning one of the politically controversial issues under consideration at that time in the Court. At the meeting Mr. Yanukovych expressed his concern with the possibility of declaring the law he signed as unconstitutional and asked the chairman of the Court to relay his position to the Justices of the Court.

3. The selection of the judges has probably violated both Ukrainian and international law.

Judges in Ukraine are appointed permanently when they have served for five years. Their first appointment is made by the President of Ukraine upon recommendation of the Higher Council of Justice. After that period, their permanent appointment is approved by Parliament. That gives judges little room for independence from the political executive power during their initial 5 years in the office.

Judge Rodion Kyriyev in the Tymoshenko case is two years into his initial 5-years term and has not been permanently appointed. He was, by Presidential decree, transferred on April 20, 2011, to the Pechersky District Court from Beresan.

4. The widespread use of detention

According to the Ukrainian Criminal Procedure Code any preventive measures, including detention are applied when there are grounds to believe that a person will try to abscond or avoid carrying out procedural decisions, impede the course of justice or continue their criminal activities, or enforce procedural decisions.

The law itself is not that different from the legislation of other countries. What is different, however, is the widespread and indiscriminate use of detention, as seen in the cases of Mrs. Tymoshenko, Mr. Lutsenko and others, none of whom would have been detained in countries with another legal tradition.

It is the court’s responsibility to review the reasons for detention provided by the prosecution and make a grounded decision. The court must also consider the possibility of replacing detention with an alternative. It is a widespread practice in Ukraine only to give general reasons for detention of the person by just repeating the provisions of the Criminal Procedure Code without assessing the actual grounds for detention.

5. The arrest of Mrs. Tymoshenko on May 24, 2011 was unjustified by the court. The arrest and detention on August 5, 2011 was disproportionate and unjustified by the court

Mrs. Tymoshenko was arrested on the May 24, 2011, but was released later that day. The court in its ruling of May 23, 2011, quoted the prosecution, but the court did not carefully review and assess how that information satisfied the conditions of the above law.

On the August 5, 2011, Mrs. Tymoshenko was detained by Judge Kyreyev, based on her behaviour during the trial. The court concluded that if she stayed at large she could evade the court and execution of procedural decisions, and would obstruct establishment of the truth in the case. The relevant national legislation is Articles 274 and 148 of the Criminal Procedure Code which allow for detention during the trial if the defendant tries to avoid trial or to obstruct establishing the truth and to ensure the execution of the procedural decisions of the court.

Judge Kyreyev based his decision on Ms. Tymoshenko´s behavior in court. [1]

The decision fails to mention how Ms. Tymoshenko “obstructed the establishing of the truth”. It did not identify which orders she has violated (“violates the order of the court consideration of the case”). This is important because the European Court on Human Rights requires that the “non-compliance with the lawful order of a court or in order to secure the fulfillment of any obligation prescribed by law” must be of a nature which the defendant has the obligation to follow, not just any order by the judge.

Several arguments between the judge and Mrs. Tymoshenko have been on issues of whether she was obliged to rise in court and to address him as “Your Honour” or the denial of her request to have a key witness, Prime Minister Azarov, address the court in Ukrainian, or provide translation as required in Ukrainian law. That she “treats disrespectfully the court and trial participants” is not among the legal reasons for detention according to the European Convention on Human Rights.

The fact that she “refused to mention her place of residence” or “refuses to give a written confirmation that she was notified of the date, time and place of the next court hearing” should not lead to deprivation of liberty, as a defendant turns up in court, which she had done day after day with the exception of one day, where she was 7 minutes late (which is what is referred to as “failed to appear in the court at hour set by the court and refused to give reasons for that”).

The decision on her detention during her trial seems disproportionate. To try to force a defendant into cooperation through detention is an obvious abuse and a violation of her rights.

6. The use of travel restrictions against Mrs. Tymoshenko and Mr. Lutsenko violate their rights to freedom of movement.

Both defendants (Lutsenko and Tymoshenko) accepted travel restrictions when investigations against them were opened. When travel restrictions were applied they were not allowed to leave their residence without the permission of the investigator.

Mrs. Tymoshenko asked in numerous situations for permission to travel abroad and within Ukraine, but that was, with few exceptions, refused even on weekends and on holidays.

7. Mrs. Tymoshenko´s right to defence has been violated by the very short periods her counsel has had to prepare the defence

Mrs. Tymoshenko has been represented by a number of defence counsels, one of whom (Mr. Vlasenko) was dismissed by the court and others have either themselves withdrawn or have been dismissed by Mrs. Tymoshenko. That has raised the issue of the necessary time for the new defence counsels to prepare the defence through the review of case files. The urgency of the judge to press for a rapid trial led him to allow newly appointed defence counsels only a few days to become acquainted with several thousand pages of case files.

The court sat almost daily, normally announced by the judge only at the end of the previous day, making it impossible for the defence to meet with their client and prepare a defence. The defence has continuously requested additional time to allow them to prepare the defence.

9. A defendant is not obliged to cooperate with the investigator.

On April 28, 2011, the Prosecutor General´s Office issued a statement which accused Ms. Tymoshenko of dragging out the investigation by not wanting to take part in any investigative actions without her lawyer being present. It warned that this could lead to the use of a stricter preventive measure, probably meaning detention as she was already under travel restrictions.

A defendant is under no obligation to “take part in any investigative action”. According to the law, she is obliged to appear when summoned, and is fully entitled not to give a statement or participate in any other activity which could contribute to her being sentenced. It is the obligation of the prosecution to prove her guilt without her assistance.

Obligations of the accused should not extend beyond duties explicitly provided in the law; that is, not to actively obstruct the course of investigation

10. The decision to convict Ms. Tymoshenko fifty year old provisions of the Soviet Criminal Code are politically motivated.

Legislation introduced in the Verkhovna Rada would decriminalize actions of the type included in the Tymoshenko case.  The President is on record as saying that the changes to the criminal code may apply retrospectively but would not apply to Mrs. Tymoshenko.

[1] “So the accused systematically takes actions in the court by which she in fact obstructs establishing the truth in the case, treats disrespectfully the court and trial participants, violates the order of the court consideration of the case, refused to mention her place of residence, refuses to give a written confirmation that she was notified of the date, time and place of the next court hearing, failed to appear in the court at hour set by the court and refused to give reasons for that…”

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