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25.10.2011

Human rights organizations speak out on the sentencing of Yulia Tymoshenko

   

 

Human rights organizations have on many occasions expressed concern regarding the political grounds for the criminal prosecution of former government officials. On 11 October the Pechersky District Court in Kyiv issued its verdict against Yulia Tymoshenko, sentencing her to seven years imprisonment over the signing of gas accords with Russia.

This sentence arouses even greater concern since it not only confirms the political element in this criminal prosecution which will have negative consequences for the country as a whole, but also places the foundations of criminal law and proceedings in jeopardy.

This verdict tests our society’s commitment to the principles of rule of law and an independent justice system. What is at issue here is not only independence from direct interference by the authorities and influential political forces.  It also involves independence from any political considerations at all, from the unrestrained will to find and punish people because life is not going the way we would wish, for political and economic ills. It is about the capacity of the justice system to counter the untrammelled expansion of criminal liability into areas which cannot on principle be resolved in terms of criminal law.

In the present situation decisive responsibility lies with Ukraine’s higher courts. Will they have the maturity and courage to prove to the public that the principles of rule of law, legal certainty, the presumption of innocence, equality before the law and the court are higher than the transient wish to find somebody to blame regardless of any principles?  Thousands of years ago that unrestrained desire prompted King Xerxes of Persia to “punish the sea”. Yet even that “king of kings” did not reach the monstrous Stalinist formulation, whereby “each problem has a name, patronymic and surname”. The entire criminal prosecution of Yulia Tymoshenko was seeped in that mentality, and the sentence passed by the Pechersky District Court was merely its drawn-out and mediocre expression.

We are concerned that this verdict could result in the review of the norms of criminal law so as to find a political resolution of the present situation. We consider it unacceptable that the foundations of law should be destroyed to meet transient political needs. We cannot agree with calls from certain political forces to create feudal immunity from criminal liability for certain individuals occupying political posts, immunity which was not even bestowed by legal documents from feudal times.

We are convinced that correct application of present criminal law based on court practice accumulated over 50 years of application of the article on criminal liability for “exceeding power or official authority” and application of existing procedural norms for evaluating evidence will prove sufficient to pass a ruling on the verdict of the Pechersky District Court and resolve the situation which has developed around it.

We would point out that the verdict does not contain an answer to the extremely important arguments presented by the defence during the examination of the case and therefore violates Yulia Tymoshenko’s right to a well-founded ruling as envisaged by Article 6 of the European Convention on Human Rights.

We cite some examples.

Were the charges formulated with sufficient clarity?

What specific norms current at the time of the event prohibited the Prime Minister of Ukraine from issuing the instruction she is charged in connection with?

Are these norms formulated with such clarity as to mean that they could only be violated in full awareness that this was against the law? 

Did the prosecution provide sufficient evidence that if Yulia Tymoshenko had not committed the actions she was charged with, the price for gas would have remained at the 2008 level?

Did the prosecution provide proof that other factors would not have led to a price increase?

Did the prosecution provide sufficient evidence that the circumstances generally referred to as the “gas crisis of 2009” could not in any case be considered “conditions of justified risk” in the meaning of Article 42 of the Criminal Code?

Can the prosecution’s reliance on hearsay be deemed evidence and was it correct for the first instance court to rely on this evidence?  Can the testimony of a person whom the court was not able to question during the trial be considered proper evidence?

Can opinions, assessments or assumptions of a witness who is not an expert in the case be recognized as evidence of the prosecution and was it correct for the first instance court to refer to such statements?

Can a sentence be lawful if the court refused to examine crucial evidence which could be in the defendant’s favour?

We believe that without a legally-based answer to these and other legal questions, the verdict against Yulia Tymoshenko will remain an event of political life, destructive for the system of criminal justice, for the rule of law in the country and for legal certainty. It will have impact on the entire system of government and public life. The existence of such a sentence will create an atmosphere in which no public official can be sure of the consequences of actions which cannot always prove correct and sometimes result in unforeseen or unfavourable consequences.

This could paralyze State governance with no one wishing to take on responsibility for decisions. It transforms the State apparatus into a pack where only the leader’s goodwill can protect a member of the pack from liability. This gives those in power unprecedented opportunity for selective prosecution by leaving only one criterion for differentiating between criminal and lawful behaviour, that being the approval or otherwise of those in power to actions and decisions.

We call on the higher court bodies who will be examining this case to give attention to the need for a well-founded response to the above-mentioned questions, as well as to thoroughly check that the Pechersky District Court correctly applied the norms of procedural law.

We await carefully-considered actions from the authorities aimed at rectifying their mistakes, at returning to dialogue with society.

From the courts we await courage and decisive action in defence of society from attempts to undermine] the principles of law.  

We call on all political forces to refrain from attempts to subordinate the law to serve ephemeral political aims.

Ukrainian Helsinki Human Rights Union

Kharkiv Human Rights Group

The appeal is open for endorsement here

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