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5 August, 2011  ▪  Zhanna Bezpiatchuk

Ukrainian Pilgrimage to the New York Court

The success of Yulia Tymoshenko’s lawsuit against Dmytro Firtash in the U.S.A. will depend on whether she can prove that he has violated the rights of the Ukrainian people

The plaintiffs in case 1:11-CV-02794-RJS in the US District Court of the Southern District of New York are Yulia Tymoshenko and “former members of the previous executive power of Ukraine” during the time when she served as Prime Minister. The case indicates that their names are not listed for reasons of safety. The defendants are Dmytro Firtash, RosUkrEnergo (RUE) and “other individuals and companies who conspired with and/or aided and abetted the indicated defendants.” The case, received in April 2011, is freely accessible in court under American laws on access to public information. Attached to the case is Judge Richard Sullivan’s summons to the first court hearing on July 22, 2011, under which the defendant must send relevant information of notification to the plaintiff.

WHAT IS THE ESSENCE OF THE STATUTE?

Tymoshenko’s attorneys have filed the lawsuit pursuant to the Alien Tort Statute, alternatively the Alien Tort Claims Act (ATA). American journalists say that the situation with this statute defies understanding. It was passed back in 1789 within the Judiciary Act which initiated the federal judiciary in addition to the state court system. The essence of the ATA is that foreigners, who do not necessarily reside in the U.S., can file lawsuits with American district courts if their human rights have been violated, falling under the customary international law and treaties to which the U.S. is a party. An action may even be brought over a violation committed outside US territory.

It is hard to say how the lawsuits filed under the ATA will fare. Even seasoned lawyers shrug their shoulders. A wave of ATA lawsuits has swept across U.S. district and appellate courts in the past 20 years. The ATA retains its mysterious nature, because it is not even known for a fact what specific goals its authors pursued. American judges received a lot of room for interpretation as they heard cases under this act. Finally, a common understanding has arisen, that it cannot simply be applied to any violations of human rights that are protected by international, law but must be applied to those of a “definable, universal and obligatory” nature.

If one moves away from these Anglo-Saxon legal niceties and turn to practice, the mass of cases referencing the Alien Tort Statute comprises two distinct types of claims: first, individuals suing large corporations over human rights violations and second, groups of people or a specific organization, also filing a claim against predominantly large corporations on behalf of, let us put it this way, the “population” whose rights the latter violated by cooperating with authoritarian governments. In both cases the purpose is to seek damages, in most cases - in millions of dollars. Curiously, the case which paved the way to the modern perception of the ATA, Filartiga v. Pena-Irala involved only private individuals: in 1980, two Paraguyan citizens brought a lawsuit against a former police chief, alleging that he had tortured and killed their 17-year-old son. They won the case.

THE ESSENCE OF TYMOSHENKO’S CASE

There are at least three core elements. Firstly, Tymoshenko goes to court to defend herself, former members of her government and “the entire population of Ukraine.” She emphasizes that the fact that 11 billion cubic meters of gas which, following the January 19, 2009 agreement between the governments of Ukraine and Russia, were taken away from her and awarded to RUE, violates the fundamental human rights of Ukrainian citizens. The people were deprived of the valuable natural resources which they were entitled to and which were in the possession of the Ukrainian state since January 2009. The gas deficit led to higher gas prices for the population. Moreover, “gas pressure to homes, hospitals, schools and other facilities was reduced to the point where the inside temperature of many of these facilities was barely above freezing point”. This constituted a violation of the right to adequate living conditions which is protected by international law.

Secondly, the lawsuit alleges that the fundamental human and political rights of opposition members, former government members, especially those involved in the 2009 gas agreements and the customs clearance of the infamous 11 billion cubic meters of gas, are being violated: they are being persecuted for political motives or thrown into prison.

Thirdly, Tymoshenko believes that the June 2010 ruling of the Stockholm Arbitration Tribunal in favor of RUE, under which Naftogaz had to return the 11 billion cubic meters of gas and an additional 1.1 billion cubic meters in punitive damages, was the result of a plot between the Viktor Yanukovych administration and a company run by his friend Firtash. In other words, as the defendant, the current government was not interested in defending the point that it was in legal possession of the said gas and was able to manipulate the Tribunal to rule in favour of RUE.

IN THE SHADOW OF THE KYIV TRIAL

In addition to the Alien Tort Statute, Tymoshenko’s attorneys invoke two more interesting documents: the Torture Victims Protection Act and the Racketeering Influenced and Corrupt Practices Act (RICO). Understanding what the former has to do with the case is a challenge to the rational mind, while the alleged manipulation of the Stockholm Tribunal clearly falls under the latter. If the court finds the defendant guilty of the alleged violations under the above Act, RUE will have to pay triple the amount in awards, meaning that USD 1.7 billion will have to be multiplied by three. However the plaintiff must first prove that racketeering, corruption and collusion had indeed taken place.

Thus, Tymoshenko’s lawsuit focuses not on the (il)legality of her government’s seizure of 11 billion cubic meters of gas from RUE but on the alleged fact that the rights of ex-government members and even the people of Ukraine have been violated. However, it is not currently clear whether the two things can be separated from a legal standpoint.

Interestingly, the press service of the US District Court for the Southern District of New York has not publicized information about this case because they have doubts as to its “authenticity” and thus its future. U.S. legislation only determines strict terms for criminal cases. Tort suits have no official limits and progress here depends on how prepared the parties are and the extent to which they are able to cooperate with the court and provide necessary documents. Thus, if the parties cannot, or dare unable to do so, trials can go on forever. The criminal cases against Tymoshenko are a much hotter topic in the EU and the U.S. today than, say, Yanukovych’s reforms. According to ex-U.S. Ambassador to Ukraine and Brookings Institute expert Steven Pifer, no matter what path Tymoshenko’s lawsuit against Firtash takes in the American court, it will not eclipse the publicity generated by the criminal cases brought against her in Ukraine, either in the US or the EU.

In her lawsuit, Tymoshenko draws attention to the fact that the Yanukovych administration has put the Ukrainian judiciary completely under its control, so there is no point in hoping for its impartiality. A similar argument worked well in the case of ex-Economy Minister Bohdan Havrylyshyn when the Czech Republic granted him political asylum. But a trial in a foreign court is technically and legally much more complicated than granting asylum.


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