Court in Strasbourg to examine both Lutsenko and Tymoshenko cases

Since the 23 December ruling from the Kyiv Court of Appeal upholding Yulia Tymoshenko’s 7-year prison sentence over the 2009 gas accords with Russia, her lawyers have been saying that they will omit a cassation appeal in Ukraine and apply now to the European Court of Human Rights [ECHR] in Strasbourg.  Yevhen Zakharov, Co-Chair of the Kharkiv Human Rights Group, warns that this would be unwise and could lead to the Court rejecting the application as inadmissible.

Serhiy Vlasenko, MP and defence lawyer for the former Prime Minister and opposition leader, told journalists on Monday that it is difficult to bypass the cassation level, but that in exceptional circumstances the Court allows this.  He is reported by Interfax Ukraine as asserting that their case was exceptional, but not as providing any more detail either regarding why they plan to bypass the cassation stage, nor why the Court will consider the case exceptional.  The report states that Ms Tymoshenko will be represented in Strasbourg by Serhiy Vlasenko and Valentina Telychenko (mentioned often here, since she has been representing the interests of Georgy Gongadze’s widow, Myroslava Gongadze).

As reported last week, the ECHR Press Service has stated that the Court has decided “to give priority1 to the case, Tymoshenko v. Ukraine (application no. 49872/11), in view of the serious and sensitive nature of the allegations raised.”

In an interview to the BBC Ukrainian Service, Yevhen Zakharov says that the European Court of Human Rights may well find that the cases against Yury Lutsenko and Yulia Tymoshenko are politically motivated, but warns against trying to bypass normal procedure, as this could simply lead to the case being rejected.

Mr Zakharov explains that the cases have been accepted as priority because of the nature of the violations alleged. If the Court finds that these rights have been infringed, this will indicate that the prosecutions are politically motivated.  This is a very serious accusation for a member of the Council of Europe.

Asked about time frames, he mentioned two cases which KHPG is involved with. Both applications were lodged fairly recently, but they are expecting the Court to examine them in the early part of 2012. One involves the peaceful protesters in Kharkiv’s Gorky Park in May and June 2010 who were subjected to brutal treatment by the police, and two of whom were jailed for 15 days.

The second case concerns what they consider to be unwarranted administrative arrest during a peaceful gathering.

With respect to Yury Lutsenko’s case, communication with the Government has already taken place. Mr Zakharov believes that the Court’s examination could take place before the former Minister’s trial is over.

He mentions that the plans expressed by Tymoshenko’s lawyers to bypass cassation appeal will mean infringement of European Court of Human Rights procedure. The best way to prove that the cassation stage is ineffective, he says, is to lodge a cassation appeal and be turned down. There is no other way of proving this. He mentions that there have been cases in Ukraine where cassation appeals have been effective.  If the defence really wants to safeguard Ms Tymoshenko’s interests, they should reject such a flawed move which could lead to the case not being considered on its merits.

Asked about Vlasenko’s statements that they would turn to various international bodies, Mr Zakharov said that this is nonsensical. It is axiomatic, he said, that if you have applied to the European Court of Human Rights, others will not consider an application. This would be totally against Yulia Tymoshenko’s interests.

Mr Zakharov stressed that his comments regarding the need to exhaust all possible remedies in Ukraine apply to an application alleging violation of Article 6, the right to a fair trial. Other applications, including over her detention, do not concern her conviction and can therefore be examined in the Court.

Asked about reports that representatives of 2 EU countries (Scandinavian ) will be following the examination of Yury Lutsenko’s case and what this means, Mr Zakharov replied that it means that the EU gives particular attention to such cases. This decision, he says, is because the EU sees a need to received information directly about what is happening with the cases.

The Danish Helsinki Committee for Human Rights has its own representative in Ukraine who attends the trials and writes detailed reports, and also meets with various people, including two meetings with the Prosecutor General.

“Foreign observers are following the course of the Tymoshenko and Lutsenko cases and the conclusions they reach are not cheering for Ukraine. Like our experts also, they see serious human rights infringements in these cases.”

From an interview at the BBC Ukrainian Service