The European Court of Human Rights recently established a precedent with its ruling in the case of Yuriy Lutsenko, the former Ukrainian Interior Minister. For the first time in the court’s practice, it officially recognised the fact of political persecution in a country aspiring to be a democratic state. The Ukrainian Week spoke with Valentyna Telychenko, who represents Lutsenko in the ECHR, about the legal ramifications of this ruling.
U.W.: Ms. Telychenko, the European Court of Human Rights found that the arrest of Yuriy Lutsenko and his pre-trial detention were unlawful. What prospects does this ruling give Lutsenko himself, and what implications does it have for trials in his case?
The ECHR found that both decisions, on detention and arrest, were politically motivated and interpreted them as lawless and unlawful. So, when Lutsenko appeals to the ECHR in the future claiming he has been denied the right to a fair trial (this must be done in order to have all Ukrainian court decisions in this case repealed), there will be a good chance that the ECHR will recognise that the Ukrainian judges delivered their verdicts under political pressure. In other words, this decision is extremely important for overturning the Pechersk Court verdict and another one, which is to be announced in a week or two. Considering the zeal with which the judge is approaching this second decision, there is no doubt that it will be a guilty verdict and that it will be unlawful. Nor is there any doubt of political motivation. The recently announced ruling of the European Court of Human Rights leaves both of these verdicts no chance.
Moreover, it gives grounds to the claim that a group of people have conspired to commit a crime. The motive has already been established, because the ECHR recognised the persecutions as being politically motivated. Among other things, these include unlawful detention and arrest (Article 371 of the Criminal Code of Ukraine), violation of the right to defence (Article 374), deliberate miscarriage of justice (Article 375) and interference with the activity of the courts (Article 376). All of these are crimes.
U.W.: There is somehow no practice in our country of punishing for crimes under these articles…
One is instantly reminded of the phrase: “But who will put him into prison? He is a monument.” But now, I think, there is no getting away from a prison sentence… A crime should not be left unpunished. In other words, everyone involved in the unlawful detention and arrest of Lutsenko should be charged within three months. If the Prosecutor General’s Office fails to institute proceedings along these lines, we are looking at another case to be brought before the ECHR. True, proceedings in Strasbourg take a long while every time, but the alternative is lynch law, which is dangerous. I have had many conversations with Yuriy Lutsenko in the past one-and-a-half years, and I am convinced that he has enough patience, courage and persistence to go through all the necessary procedures within the framework of the law.
U.W.: Does the ruling in his case establish a precedent for other Ukrainian political prisoners?
Absolutely. The decision on Lutsenko’s unlawful detention and arrest even mentions the persecution against Yulia Tymoshenko. Moreover, this decision establishes an important precedent in the practice of the ECHR as such: in particular, it can be used in the Magnitsky vs. Russia case.
U.W.: What are the prospects of appeals received by the ECHR from Yulia Tymoshenko and Valeriy Ivashchenko?
I have no doubt that the court will find egregious violations of Article 6 of the Convention on the right to a fair trial which will make it possible to have the verdicts of Ukrainian courts repealed. I will now venture to say that the politically motivated nature of the criminal persecution will also be established. These three people – just like almost everyone who is kept in [Ukrainian] prisons and needs medical treatment – were provided with insufficient medical care. So the compensation adjudged by the ECHR will be, in general, quite palpable. I am sure that the present political prisoners will exert every effort to file regress suits against physical persons who committed unlawful actions, and Ukraine will have to pay the damages from its budget.
U.W.: What about the right to health which ordinary, non-political prisoners also enjoy? Are there mechanisms to protect their rights?
What can be said about the right to medical provision if even the food [in prisons] is so highly unsatisfactory? The penitentiary system is a different world in which corruption is rampant. If relatives or friends of an inmate have money, he or she will get foods, medicine and the ability to receive medical treatment outside the correctional facility or detention unit. If financial resources are lacking, they need to brace themselves for the worst. Their only hope then is their own endurance.
U.W.: You are speaking about regress suits. Does this mean, for example, that Lutsenko will sue specific officials in order to have them pay the €15,000 fine he was adjudged by the ECHR?
Initially, the damages must be paid by the state. And then the Prosecutor’s Office needs to sue specific individuals to have them compensate for what has been paid. The reason is that the Prosecutor's Office has the function of representing the government in court. Criminal cases against judges, prosecutors and investigators involved in political cases also need to be opened by the Prosecutor’s Office. The money paid by the state pursuant to the ECHR decision will need to be registered as damages incurred. Is it hard to believe this will be the case? But it will. The critical mass is accumulating too fast. No dictator has managed to rule forever.
U.W.: Criminal proceedings in the Leonid Kuchma case were recently discontinued. Do you agree with this decision?
Suspicions that Kuchma was involved in the murder of Georgiy Gongandze have not gone anywhere. The only way to settle the situation is to carry out an objective pre-trial investigation and try the case on its merits. The fact that the regulation to open a criminal case was canceled after the investigation was completed and the Prosecutor General’s Office was finishing the last formalities before handing it over to court fuelled, rather than dispelled, suspicion. So expect to see another appeal from Myroslava Gongadze to the ECHR. This is another shameful case for our state: the contract killing of a journalist with the possible involvement of a former president.
U.W.: If the government fails to fulfil the ECHR decision despite its promises, what consequences will Ukraine face?
If the ruling of the European Court of Human Rights is ignored, Ukraine’s membership in the Council of Europe may be suspended. This in turn will wreck any prospect of Ukraine’s integration in the European community, both politically and economically. Moreover, if Ukraine loses the status of a democratic country, individual sanctions may be applied against people immediately involved in the violation of human rights, as has been the case with government officials implicated in the death of attorney Sergei Magnitsky. Furthermore, it will affect the prospects of Ukraine as an economic partner. The Mykola Azarov government is looking for opportunities to obtain additional IMF loans today. But no loans will be issued to the dishonest and
the dishonourable. This is something to be borne in mind. Lawlessness and arbitrariness always undermine stability, and unstable partners are not interesting to anyone, in either business or in politics.