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28.08.2011 | H.Tokaryev, Bar Lawyer and KHPG Expert

On the Court Ruling changing the Restraint Measure against Yulia Tymoshenko

   

 

The exhaustive list of grounds for applying any restraint measures, including remand in custody, is provided in Article 148 of the Criminal Procedure Code [CPC].  With regard to the defendant this is sufficient grounds for believing that s/he will avoid either the court or carrying out procedural decisions; obstruct the establishment of the truth in the case; or continue criminal activities.

Pursuant to Article 17 of the Law on Enforcing European Court of Human Rights Judgements and Case-Law, courts shall use the European Convention on Human Rights [the Convention] and European Court of Human Rights Case-Law as a source of law.  Article 5 § 1 of the Convention provides an exhaustive list of grounds for depriving a person of their liberty during criminal proceedings.

In the Ruling of the Pechersky District Court  from 5 August 2011, with Judge R.V. Kireyev presiding, it is stated that the defendant, Yulia Tymoshenko  systematically breaches order at the hearings, does not obey the instructions of the presiding Judge and in her words and explanations demonstrates contempt for the parties to the court examination and to the court; that she has deliberately dragged out the examination of the case; carries out actions during the court hearings which attempt to obstruct the establishing of the truth in the case, for example, obstructs the questioning of witnesses. From the test of the motivation part of the ruling it follows that in the court’s view, the defendant systematically carries out acts during the court hearings which effectively obstruct the establishing of the truth in the case; treats the court and parties to the court trial with disrespect; violates the order for examination of the case; and it is also stated that she refused to inform of the address where she is living; refused to sign a statement confirming that she had been informed of the date, time and place of the next court hearing; did not appear at the court hearing at the time set by the court and refused to inform of the reason for her non-appearance.

Of all the grounds given in the ruling for changing the measure of restraint against Yulia Tymoshenko, only obstruction of the establishing of the truth in the case is envisaged by Article 148 of the CPC.  As the form of obstructing the establishing of the truth in the case, the ruling mentions the defendant’s actions during the court hearing, particularly obstructing the questioning of witnesses.

Obstruction of the exercise of justice both in domestic court practice, and in European Court case-law is understood as destroying or damaging evidence in a case, exerting pressure on witnesses etc, for example in the cases of Letellier v. France  (№12369.86, from 26.06.1991, §39),   W. v. Switzerland (№14379/88, from 26.01.1993 §36),  I.A. v. France  (№28213/95, from  23.09.1998 §110), and later Kauczor v. Poland (№45219/06, from 03.02.2009 §46) and Aleksandr Makarov v. Russia (15217/07, from  12.03.2009 §129). The court ruling does not involve such forms of obstructing the establishing of truth.

The grounds for change of measure of restraint stated by the court, namely obstructing the establishing of the truth in the case by obstructing the questioning of witnesses is clearly artificial since according to Article 260 of the CPC, the presiding judge is in charge of the court hearing and other parties are deprived of the opportunity during the court examination of in any way influencing its course, including by obstructing the questioning of witnesses, both those in the list of people summoned as witnesses, and those who are to be questioned on the decision (ruling) of the court.

With regard to the stated demonstration by defendant Yulia Tymoshenko of contempt of court (failure to obey the presiding judge’s instructions; demonstration of disrespect for the court and other parties to the trial and so forth), this behaviour, even if was such, going by Article 148 § 2 of the CPC, is under no circumstances grounds for applying, and therefore for changing any measure of restraint, especially in the form of remand in custody. Therefore the justification in the ruling for change of measure of restraint does not comply with Ukraine’s legislation.

Improper behaviour by a party in a court hearing cannot constitute grounds for applying the administrative penalty under Article 185 of the Code of Administrative Offences [CAO], of a fine of up to 15 days administrative arrest. Thus since the measure of restraint against Yulia Tymoshenko was changed to remand in custody, including for demonstrating contempt for the court and other parties to the trial, the justification for change of measure of restraint bears the marks of application of a legal sanction against the defendant for her improper behaviour.  Pursuant to Article 148 § 1 of the CPC measures of restraint are applied to prevent the defendant trying to avoid the court;  obstruct the establishment of the truth in the case; or continue criminal activities; as well as to ensure implementation of procedural decisions.  The effective aim of the change of measure of restraint does not therefore comply with Ukraine’s legislation.

Article 5 § 1 c) of the Convention envisages “the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;”

The aim therefore of changing the measure of restraint against Yulia Tymoshenko does not comply with the provisions of the Convention. According to European Court case-law depriving a person of their liberty for purposes not set out in Article 5 § 1 of the Convention are a violation of the Convention (for example in the case of Osipenko v. Ukraine, № 4634/04, from 09.11.2010.  Perhaps, on condition of using administrative arrest of the defendant under Article 185 of the CAO, the court would have acted in accordance with the provisions of Article 5 § 1 (a) and (b) of the Convention.

Reference in the ruling to the defendant having refused to inform of the address where she is living; refused to sign a statement confirming that she had been informed of the date, time and place of the next court hearing; did not give reasonable grounds for the court’s conclusion that were she to remain at liberty, she might avoid the court since had on many occasions appeared at the court hearings and, during the investigation, at the investigators’ offices.

Mandatory notification by a defendant of his or her address and signing to confirm that they have been informed of the date, time and place of the next hearing, are not envisaged by the CPC. Accordingly the reference in the motivation part of the ruling to these omissions by the defendant does not have legal meaning in determining choice or change of measure of restraint.

The statement in the ruling that Yulia Tymoshenko failed to appear at a court hearing is not correct since she arrived at the court premises a few minutes late which the court knew when considering the Prosecutor’s application to change the measure of restraint. It is clear that such a formal one-off infringement by the defendant of the duty to arrive at the court hearing at the appointed time does not give sufficient grounds for the conclusion that she planned to avoid the court, and the choice (change) of measure of restraint to detention is clearly disproportionate to her lateness at a court hearing.

In its Ruling from 25 March 2004 No. 4 “On the use by courts of measure of restraint in the form of detention and extension of periods of detention at the stages of detective enquiry and criminal investigation (with amendments), adopted with the aim of ensuring correct and uniform application of criminal procedure legislation, removing flaws and mistakes, the Supreme Court stated that in resolving issues connected with choice of measure of restraint in the form of detention, and extension of periods of detention, the courts should be guided, in addition to domestic legislation, by Article 5 of the Convention.

Item 3 of this Supreme Court Ruling states the Supreme Court’s position that a decision to remand a person in custody is taken only where there are grounds for considering that other (less harsh) restraint measures may not ensure compliance by the accused with the procedural duties following from Article 148 § 2 of the CPC, and their proper behaviour. Item 15 of the Supreme Court Ruling speaks of the need to provide in the motivation part of a ruling the justification for concluding that there are grounds for choosing detention as the measure of restraint, as well as arguments supporting the view that the accused could avoid the investigation and court, or procedural obligations; obstruct the establishing of the truth in the case; and that the use of a more lenient measure of restraint would not ensure proper behaviour. Furthermore, Item 10 of the Supreme Court Ruling points to the possibility when considering detention as restraint measure of the court ascertaining the financial possibilities of the suspect, accused or other persons to pay bail and designating its size which could ensure proper procedural behaviour from the suspect or accused.

Thus even were there grounds for changing the measure of restraint, the Pechersky District Court  should have considered the option of choosing a less harsh measure of restraint, for example, bail. There have been cases of this in Ukraine’s case law, for example, in high-profile criminal cases during the prosecution of Boris Kolesnikov or Yevhen Kushnaryov. Despite the Supreme Court Ruling, the Pechersky Court ruling gives no explanation at all for why other restraint measures could not ensure Yulia Tymoshenko’s proper behaviour.  In view of this it is worth noting that in the case of Khayretdinov v.  Ukraine (№ 38717/04, from 14.10.2010 року) the European Court found that there had been a violation of Article 5 § 1 of the Convention in circumstances where the domestic bodies had not provided sufficient grounds for remanding the applicant in custody, and the courts had not considered the possibility of applying alternative measures of restraint.

According to Article 150 § 1 of the CPC when deciding on measure of restratin, besides the circumstances outlined in Article 148 of the Code, the courts should consider the severity of the offence that the person is suspected or accused of, the person’s age, state of health, family and financial situation; type of work; place of residence; and other circumstances characterizing the person. At the same time the Pechersky Court ruling only states that the court considered these circumstances without explaining in what way it had done so.

Moreover, according to Item 10 of the Supreme Court Ruling, the courts should also establish whether the person has any previous convictions; their social contacts; their inclination to use or use of drugs, alcohol etc; life style; as well as information indicating factors, circumstances or moral values which could suggest that the suspect or accused could, if at liberty, infringe the procedural obligations imposed or engage in criminal behaviour. The ruling does not state that it considered, for example, such a significant personal circumstance characterizing the defendant Yulia Tymoshenko, as the fact that she previously held the post of Prime Minister and is the leader of one of the most powerful political parties in Ukraine, and therefore her avoidance of justice (absconding) would, with a very high degree of probability, lead to her loss of authority in the eyes of her political supporters. It is clear that failure to take into account even this one significant circumstance in choosing detention as measure of restraint in a case involving charges linked with her actions as Prime Minister of exceptionally great public significance, does not comply either with Article 160 of the CPC, or the position of the Supreme Court,   The European Court in its case-law holds the view that domestic courts, when justifying conclusions that there is a real danger that a person will flee from justice, must indicate the personal features of the individual or provide the specific grounds for their detention, for example, in the cases of Mamedova v. Russia (7064, 05, from 01.06.2006 §76) and Aleksandr Makarov v. Russia, (15217/07, from 12.03.2009, §125).

From the European Court’s position, in order for deprivation of liberty to be lawful, it is insufficient for this to be carried out in accordance with domestic law, it must also be necessary under the given circumstances Witold Litwa v. Poland № 26629/95, from  04.04.2000 §78)

In view of the above, since the preliminary examination of the case of Yulia Tymoshenko when Judge Kireyev left unchanged the previously adopted measure of restrict involving a signed undertaking not to leave the place, in the examination of the case there were essentially no new lawful grounds for this to be changed to remand in custody. Therefore the court ruling was not based on the provisions of either international or domestic law. 

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