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27 January, 2012  ▪  The Ukrainian Week

Political Retribution

"Tymoshenko case is more political than the Khodorkovsky case"

Ever since the Yulia Tymoshenko trial began, the Ukrainian government has insisted that it has been applying the the principle that everyone is equal before the law. It is deeply offended, especially after presentations in international institutions, that the world is not applauding its faithfulness to democracy. Halyna Senyk, expert in international and European law, told The Ukrainian Week precisely why the Tymoshenko case violates European standards.

U.W.: Ms. Senyk, a new case against Yulia Tymoshenko has been opened in Ukraine in which the investigators are focusing on the 1995-2000 period. Is there any statute of limitations for economic violations in European law?

Under the European Convention on Human Rights, all issues having to do with statutes of limitations for civil offenses and crimes are regulated exclusively by the national law of each member state. However, in order to secure the right to a fair hearing (Article 6 of the Convention on Human Rights), it is important that courts and prosecutors strictly abide by the norms of national legislation.

U.W.: What does Ukraine’s legislation have in the way of statutes of limitations?

On October 11, the Pechersk District Court of Kyiv pronounced Tymoshenko guilty of violating Article 365 of the Criminal Code of Ukraine. The next day another case was opened against her: she was charged with violating part 5 of Article 191 of the Criminal Code in a case that goes back to the 1990s. Several days later, a number of old and previously closed cases were re-opened. Questions arise: Why did it happen precisely at this juncture in time? Considering that the incumbent administration is under certain pressure to decriminalize articles on economic offenses, which lie at the foundation of most currently open cases against politicians from the previous government, including Tymoshenko herself; it is an extraordinary thing to open a new case and bring back old cases against an inconvenient opposition politician. The timing of these events, the old age of these cases and their background confirm the existing serious suspicions of political motivation.

U.W.: Does this mean that the old cases which were closed back in 2004-05 were re-opened unlawfully?

The statute of limitations (10 years) in the United Energy Systems of Ukraine" (former Tymoshenko's company – Ed.) debt case has expired. A statute of limitations cannot be cancelled by saying that an offense was committed at the point when this business stopped paying off its debts in 2000. According to usual legal argumentation, the point of departure would be when it issued guarantees, i.e., in 1996. Likewise, extending the statute of limitations cannot be based on the gas case of 2009. Expired statutes of limitations would also prevent the majority of the eight cases, if not all of them, against Tymoshenko from being reopened. (They were closed back in 2004 and 2005.) Resuming investigation in cases that were lawfully closed is a violation of Articles 6 and 18 of the European Convention on Human Rights if these decisions are not justified by lawful goals and on lawful grounds. The president made public statements on the Tymoshenko cases in which he confused suspicion and court-established guilt.

Statements made by the Prosecutor General’s Office on these cases confirm doubts that the criminal justice system is not objective, independent and impartial. The decree to indict Tymoshenko in the debt case employs obscure terminology and confuses fact and suspicion, which makes it very hard or even impossible to determine exactly what she is being charged with. And so it is a violation of her right to defense and a fair trial.

U.W.: The indictment against the former prime minister uses the term “attempted crime.” How common is this concept in European law? Are you familiar with similar trials in Ukraine or abroad? In simple terms, unrealized intentions do not have negative consequences or cause any material or moral damage, do they?

As with statutes of limitations, formulations of national criminal codes are not subject to consideration by the European Court, except in cases when application of a regulation violates human rights protected by the European Convention on Human Rights.

U.W.: Have there been any such cases in Ukraine or abroad? French law has the concept “trial of intention” with the underlying idea that people cannot be held responsible for what they could hypothetically do.

National systems differ in their approach to “attempted crimes.” Some European countries permit opening criminal cases on charges of an “attempted crime” or incitement to commit a crime. Others, like France, make it unlawful to try people for their intentions. There is no common international criminal law. Therefore, I believe that in this case it is crucial to stick to the position of the European Court of Human Rights which says that a court hearing requires abiding by national laws, the equality of the parties, adversarial procedure and an independent and impartial court. Unfortunately, these foundational principles of a fair hearing have been systemically violated in the Tymoshenko case.

U.W.: A court session which took place in Tymoshenko’s cell produced another arrest order. How much is this in line with European legal standards?

Regarding Tymoshenko’s repeat arrest in a newly opened criminal case, the European Court clearly regulates the application of Article 5, paragraph 1(c). In this case, detention on remand and during trial requires a ruling by a national court to be lawful (Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports 1998 VIII, § 162, Levedev v.Russia). Moreover, the proceedings must abide by the principle of adversarial procedure and equality of the parties, both the prosecution and the arrested. This means that a person about to be arrested must have access to the materials produced by the investigation based on which the Prosecutor General’s Office demands his or her arrest. This person must also have an opportunity to comment on arguments submitted by the prosecution (see Niedbała v. Poland, no. 27915/95, § 67, 4 July 2000). In the case of Tymoshenko’s repeat arrest, to my knowledge, the subpoena was delivered to Tymoshenko on December 7, 2011, at 4p.m., requiring her appear before court at 5p.m. the same day. Tymoshenko was being treated for severe back pain in the medical unit of the pre-trial detention center where she was kept and was unable to move around unaided. Instead of giving her the opportunity to improve her health and participate in a court hearing over the grounds for her arrest, the court ruled to have an on-site session, which is something not envisioned by Ukraine’s national laws. I will also add that at the time when she was handed the subpoena, neither Tymoshenko, nor her attorneys were given documents produced by the investigation based on which the Prosecutor General’s Office demanded to have her arrested. In other words, Tymoshenko did not have the opportunity to familiarize herself with these papers and prepare for the court hearing.

U.W.: Article 5 of the European Convention on Human Rights includes certain guarantees for people who are going to be arrested. Have these been kept during Tymoshenko’s repeat arrest?

Under Article 5 of the European Convention on Human Rights, a person may only be arrested on a court order. The trial must be an adversarial procedure between the prosecution and the person which it demands to have arrested. The prosecution and the defense must be able to exercise equal rights in the proceedings. The European Court of Human Rights noted in the case Lebedev v. Russia (October 25, 2007, § 86) that if a person who is going to be arrested takes part in proceedings while he or she is in poor health, his or her participation cannot be deemed sufficient, because this person is unable to adequately represent his or her interests.

Moreover, as I have said, neither Tymoshenko, nor her attorney received documents from the Prosecutor General’s Office that would have provided grounds for her arrest. In light of her poor health and her inability to adequately defend her rights on her own, it was reasonable to assume that attorney Serhiy Vlasenko would be able to help his client. However, on the day when the court hearing on her arrest took place, Tymoshenko was in the medical unit of the pre-trial detention center and her meeting with the attorney was organized in a way that precluded a confidential conversation between them before the court hearing, which is a violation of Article 5, paragraph 4.

U.W.: There must be regulations that guarantee a prisoners’ right to medical treatment. What are they?

The European Court of Human Rights emphasized on numerous occasions that “the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured.” (See the ruling of the European Court of Human Rights in Kalashnikov v. Russia, No. 47095/99, paragraph 95, ECHR 2002-VІ.) In the case of Tymoshenko, the medical commission approved by the penitentiary system found that she had a series of chronic diseases and a problem with her spine which caused acute chronic pain. According to independent medical specialists who were given the results of Tymoshenko’s checkups, she urgently needs surgery. However, she is being given painkillers rather than medical treatment. This cannot be deemed adequate provision of medical aid. Therefore, there are serious grounds to claim that Article 3 of the European Convention on Human Rights was violated. Under this article, no one may be subjected to torture or to inhuman or degrading treatment. When in detention, this places an obligation on the penitentiary system to provide adequate medical treatment or the opportunity to undergo treatment in institutions governed by the Health Ministry.

U.W.: That is to say, politics is more evident in the Tymoshenko case than in the Khodorkovsky case?

Indeed, the political nature of persecution in the case of Tymoshenko is based on the fact that she was, and remains, one of the likeliest political opponents of Viktor Yanukovych. She won 47% of votes in the last presidential election, which is a very high level of support. So far, she is Yanukovych's only real rival. In this way, by trying to have Tymoshenko convicted at any cost, the Ukrainian government essentially disables her as a political opponent to the incumbent president.

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