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Political Persecution in modern Ukraine 2010–2011

21.11.11

Political Persecution in modern Ukraine 2010–2011[1]

Document No.1

Following the 2010 Presidential elections the new Administration began steadily resorting to political persecution of its opponents and critics. This has been widely reported by the media; foreign and Ukrainian experts. The first sign of political persecution at local level was the imprisonment under Article 185 of the Code of Administrative Offences, supposedly for resisting police, for 15 days of two people protesting against the tree-felling in Kharkiv’s Gorky Park. Amnesty International for the first time in six years declared the two activists prisoners of conscience (the only other case in 20 years of independence had been in 2004).

There have undoubtedly been political grounds for the criminal prosecutions against participants in the Tax Code Maidan, the protests in autumn 2010 against the Tax Code; against members of “Tryzub” (for beheading the bust of Stalin on 28 December 2010); over the daubing with paint of the monument to Felix Dzerzhynsky; the egg frying on the Eternal Flame in Kyiv; against former government officials: Yulia Tymoshenko; Yury Lutsenko; Bohdan Danylyshyn; Yevhen Korniychuk. One can, with a high level of certainty, call the prosecutions of Valery Ivashchenko, Ihor Didenko, Anatoly Makarenko and other former government officials remanded in custody during the investigation, political persecution.

The absurdity, immorality and pure Soviet hypocrisy in combining abuse of the law with stringent restraint measures, as well as the political motivation of these prosecutions, leave nobody with any doubts. We are forced to acknowledge that Ukraine now has political prisoners.

There is also widespread use of such unlawful political harassment as “prophylactic” talks, well-known in Soviet times, with threats that a person will be dismissed from his job or educational institution; unlawful actions by the law enforcement bodies (beatings, unlawful gathering of personal information, unlawful surveillance; detentions; searches, etc); obstructing circulation of information and others.

Political persecution is a challenge to Ukrainian society. In order to put a stop to such actions by the authorities, we, the undersigned, are creating a Public Committee against Political Persecution in Ukraine (the Committee) which will take on the following tasks:

1)                  informing the Ukrainian public and international community about political persecution, about the condition of victims and protests against political repression;

2)                  Production of a weekly Record of Political Persecution in Ukraine in Ukrainian and English;

3)                  Legal defence for victims of political persecution; the creation of a fund to assist victims, material assistance where needed for their relatives;

4)                  Actions aimed at stopping political persecution, for example, protests against political repression in Ukraine

5)                  Monitoring of criminal prosecutions with political overtones.

The Committee is an apolitical, non-party association of human rights activists from Soviet and modern days, which has no purposes other than those defined above.

Members of the Committee

Zinoviy Antonyuk; Arkadiy Buschenko, Ludmila Klochko; Ihor Koliuszko; Mykola Kozyryev; Kateryna Levchenko; Myroslav Marynovych; Vasyl Ovsiyenko; Oleksandr Pavlychenko; Iryna Rapp; Yevhen Sverstyuk; Yevhen Zakharov, Iosiph Zisels, Volodymyr Yavorsky

4 August, 2011

Public Committee against Political Persecution in Ukraine

Document No.2

Defining Political Persecution

Definition of categories applying to political persecution

Following the 2010 Presidential elections the new Administration began steadily resorting to political persecution of its opponents and critics. This has been widely reported by the media; foreign and Ukrainian experts. For this reason the law and human rights communities need to establish definitions for “prisoner of conscience”, “political prisoner” and “persecution on political grounds” in today’s Ukraine. We shall base this on the experience both of Amnesty International and of the Soviet human rights movement of the 1960s to 1980s. This gave definitions which were later developed in numerous documents of the Council of Europe, OSCE and other international organizations.

Generalizing international legal practice while taking into account Ukrainian social and political reality and the experience of the Soviet and in particular Ukrainian human rights movement, Ukrainian history, and taking as a premise the categorical rejection of violence as a means for upholding ones rights and interests, for political or social protest, we propose the following definitions.

Persecution may be based on the law when criminal proceedings are initiated against a person or their rights are restricted in connection with the initiating of a criminal investigation over a crime, or coercive measures of a medical nature, including psychiatric, are used against a person without grounds; or when a person is accused of committing an administrative offence; or a person becomes the object of civil or economic legal proceedings. The persecution can be entirely unlawful. This can involve, for example, intimidation via prophylactic talks; threats of dismissal from ones job or expulsion from an academic institution; being deprived of ones work and legal income; unlawful actions by the law enforcement agencies (beating, unlawful gathering of information about a person, unlawful surveillance, detentions, searches, etc); obstruction in circulating information; being forced to join a certain political party; being forced to take part in measures of a particular political party, and so forth. These actions may be carried out both by public officials, or by private groups or individuals with the authorities tolerating such actions.

The persecution is politically motivated if the actions of the State bodies and their officials are based on a) illegitimate considerations of a socio-political nature or b) actions of the individual persecuted for defending people’s rights, freedoms and legitimate interests

Political prisoners

We propose using the definition first presented by Sergei Kovalev, former political prisoner, human rights defender and first Russian Human Rights Ombudsperson. This considers a person a political prisoner where political motives have played a significant and accurately defined role in the criminal or administrative proceedings against them – and only such prisoners. It is of no importance whether it is specifically political causes that prompted the actions which the person is accused of as a crime or offence; what is important is only the presence of political interest of the regime in the outcome of the case. Since in the application of the law assessments and judgements beyond the framework of the law are unacceptable on principle, political motivation in court proceedings may result in procedural or material infringements such as:

-               elements of falsification in the charges;

-               unwarrantedly severe restraint measures or punishment;

-               wrongful sentences or rulings regarding administrative offences;

-               bias of the court in evaluating the evidence presented by the defence and the prosecution;

-               various restrictions regarding the possibility of defending oneself, including with the help of defence counsel;

-               arbitrariness in choice of evidence, ignoring obvious facts;

-               use of norms of the law irrelevant to the deed committed;

-               the selective (discriminatory) nature of court prosecution compared to analogous cases involving others.

We consider it unequivocally true that any political motivation must be eliminated in the sphere of justice, regardless of the gravity and consequences of the crimes.

It should be noted that besides politically motivated discrimination against those whom the regime deems to be their opponents, it sometimes resorts to persecution of its supporters or those who implement its repressive decisions. This is as a result of internal conflict or in order to mask selective repression. Such persecution is also politically motivated and equally unacceptable.

Prisoners of conscience

We propose considering as prisoners of conscience those who are deprived of their liberty on knowingly wrongful from the point of view of international standards, grounds or on unwarranted charges in connection with:

-               their convictions or public expression, civic or political activity of a non-violent nature which does not demand discrimination against any others;

-               looking for, retaining or circulating open or publicly important information;

-               refusing to wear a military uniform or take part in acts of violence due to religious or other convictions.

People who resort to violence or propagate violence and enmity are not considered prisoners of conscience.

For comparison, the Amnesty International definition states that a prisoner of conscience is a person deprived of his or her liberty solely for peacefully expressing their political, religious or scientific views. This definition was given at the beginning of the 1960s by the founder of Amnesty International Peter Benenson.

We would also note the definition of political prisoner given by Council of Europe: experts Stefan Trechsel, Evert Alkema and Alexander Arabadjiev:

(54). A person deprived of his or her personal liberty falls within the category of “political prisoner” :

a. if the detention has been imposed in violation of one of the fundamental guarantees set out in the European Convention on Human Rights and its Protocols (ECHR), in particular freedom of thought, conscience and religion, freedom of expression and information, freedom of assembly and association;

b. if the detention has been imposed for purely political reasons without connection to any offence;

c. if, for political motives, the length of the detention or its conditions are clearly out of proportion to the offence the person has been found guilty of or is suspected of;

d. if, for political motives, he or she is detained in a discriminatory manner as compared to other persons; or,

e. if the detention is the result of proceedings which were clearly unfair and this appears to be connected with political motives of the authorities.

The onus of proof

The assumption that a person is a “political prisoner” should be confirmed prima facie by evidence, following which the State depriving a person of liberty should prove that the imprisonment is fully in compliance with the requirements of the European Convention on Human Rights as interpreted by the European Court of Human Rights according to the merits of the case; that the requirements of proportionality and non-discrimination have been observed and that deprivation of liberty was the result of a just procedural review.

Based on the above definitions, one can draw the following conclusions:

There are a fairly large number of people who have been persecuted for political motives. These are participants in protests who are being intimidated in various ways, sometimes connected with violence – small business owners, students, members of civic organizations, political parties, trade unions, etc; journalists and civic activists with whom the Ministry of Internal Affairs [MIA] or Security Service [SBU] have held prophylactic talks, or in relation to whom there has been demonstrative surveillance; staff of public sector institutions who, under threat of dismissal, have been forced to join parties, take part in rallies, etc.

In our opinion, the criminal cases initiated against the participants of the Tax Code Protest, the members of the organizations Tryzub and VO Svoboda, as well as former high-ranking officials – Yulia Tymoshenko; Yury Lutsenko and Yevhen Korniychuk – should be considered political persecution.

All of the accused in these criminal cases who were deprived of their liberty or remain in detention are political prisoners. This conclusion follows from an analysis of the rulings regarding choice of restraint measure and the circumstances of their arrest and remand in custody. The former Economy Minister Bohdan Danylyshyn who has received political asylum in the Czech Republic was a political prisoner. One can say with a great degree of certainty that political persecution is involved in the cases of Valery Ivashchenko, Ihor Didenko, Anatoly Makarenko and other former government officials remanded in custody during the criminal investigation.

The criminal cases against the Coordinator of the Vinnytsa Human Rights Group, Dmytro Groisman and the Vinnytsa trade union activist Andriy Bondarenko must also be considered politically motivated. The political grounds are indisputable for the reinstatement of the old criminal cases against members of the national organization UNA-UNSO regarding the events of 9 March 201 (all the accused have already served sentences aside from National Deputy Andriy Shkil) and the Head of the Secretariat of the Mejlis of the Crimean Tatar People Zayir Smerdlyaev (he is charged with taking part in mass riots and resisting the police during a rally of the Crimean Tatars on 22 June 2006).

Virtually all civic activists who received administrative sentences under Article 185 and / or 185-1 of the Code of Administrative Offences, (infringing the procedure for organizing a peaceful gathering) after holding a peaceful gathering can a priori be considered victims of political persecution. To be certain each such case should be viewed in isolation.

The list here of political persecution in no way claims to be exhaustive.

Zinoviy Antonyuk; Arkadiy Buschenko, Ludmila Klochko; Ihor Koliuszko; Mykola Kozyryev; Kateryna Levchenko; Myroslav Marynovych; Vasyl Ovsiyenko; Oleksandr Pavlychenko; Iryna Rapp; Yevhen Sverstyuk; Yevhen Zakharov, Iosiph Zisels, Volodymyr Yavorsky

4 August, 2011

www.khpg.org

Some thoughts regarding criminal cases against Tax Code Protesters

18.01.11 | Yevhen Zakharov

The “Small business owners’ Maidan”* had only just begun when the Shevchenkivsky Department of the Kyiv Police on 23 November initiated a criminal investigation under Article 293 of the Criminal Code, over group infringement of public order on 22 November: the blocking of vehicle transport on Khreshchatyk St.

Nobody has yet been charged in this case.

However the Minister of the Interior Anatoly Mohylyov stated in parliament on 14 January that the people who committed this crime are known and an investigation is presently underway against them, He also stressed that responsibility for the crime committed was borne by the heads of four civic organizations which were the organizers of the protest.

Mohylyov also stated that the protest’s initiators had not informed that they were erecting tentsm yet despite this “they had hammered into the marble covering of Maidan Nezaleznosti more than one hundred metal spikes, in his words, 132. Any conscious individual is clear that that is also a crime, the damaging of property not belonging to you. Thus the organizers did not take sufficient measures to prevent offences, and promoted its being first committed during the protest”.

Under this fact on 3 December a criminal case was initiated under Articles 28-I § 2 and 194-I § 1 of the Criminal Code. On 23 December Ihor Harkavenko was detained, on 25 December – Oleksandr Mandych, both of whom are charged with committing this offence.

Harkavenko was remanded by the court in custody, while Mandych on 28 December was released under a signed undertaking not to abscond.

The decision to initiate a criminal case against Serhiy Melnychenko is dated 23 December, but this has not thus far been handed to him since he was first in hospital then left Kyiv for the New Year holiday.

On 6 January a similar criminal case was initiated against Oleh Altyrsky and on 14 January against Roman Fedchuk. Both have had to give signed undertakings not to leave the place.

There have also been reports on the Internet of the involvement in this case of Oleksy Zaplatkin and Vitaly Hruzynov. The Press Secretary of the Central Police Department in Kyiv, Volodymyr Polishchuk reported that they were not suspects, and could be simply witnesses. Yet the Minister of the Interior stated that they were on the wanted list.

From one formal decision on initiating a criminal case to another we find the same sacramental phrase: such and such and such and such who “acted according to prior conspiracy with persons not identified by the detective inquiry investigators, deliberately damaged the marble covering of Maidan”.

Only this list of “such and such” is increasing.

In the decision presented to Harkavenko, such and such are Harkavenko, Zaplatkin and Hruzynov. While in the decision initiating a case against Fedchuk, - already all 7 of the above-named.

The problem is only that Harkavenko, according to his lawyer Oleh Levytsky, has no idea who Zaplatkin, Hruzynov and Mandych are, he simply doesn’t know them.

None of the Maidan activists know Zaplatkin and Hruzynov at all, cannot identify them, and have no contact with them. Pure phantoms!

These people who are not acquainted can clear not have come to a “prior conspiracy” and therefore paragraph 2 of Article 28-I cannot be applied.

It is also improbable that Harkavenko, Mandych, Zaplatkin and Hruzynov hammered stakes into the marble covering on Maidan.

Firstly, they were neither organizers nor members of any civic associations or trade unions, nor activists who stood out in any way, Nobody remembers their having participated in any protests. Only Mandych is recalled by some of the residents of the tent camp as having spent the night there once or twice.

Harkavenko came once or twice and expressed his disagreement with the protesters.

Secondly, all know that the tents were erected by National Deputies [MPs] during the night from 23 to 24 November. This is not known only to the investigators who write of “persons not identified by the detective inquiry investigators”. For this reason the charges of putting spikes into the granite on Maidan by the real participants – Vasylchenko, Fedchuk and Akhtyrsky – are extremely dubious.

Why did the police initiate a criminal case against four chance individuals who weren’t involved in Maidan-2 at all?

In my opinion, the answer is simple – all four have previous convictions.

And everyone can see how the Minister of the Interior in parliament lists their past sins. That, supposedly, is your “face of the protest” – purely criminal.

It turns out that it’s all the other way around: the criminal case is made up.

Does the Ministry of the Interior really think that nobody sees that? They would be better to terminate the cases, and not shame themselves before the whole world.

Let’s turn to the other criminal case – under Article 293.

Undoubtedly blocking traffic is bad. Yet who is responsible for it? In the statement of notification against the planned protest, the organizers named a figure of 100 thousand participants. It would have been quite sensible to assume that with such a number of people on Maidan Nezalezhnosti that there could not be traffic on Khreschatyk, and to close it at least for the first hours of the protest.

Why did the Ministry not do this?

There are, moreover, no grounds at all for asserting that the blocking of traffic was deliberate, and that it was not the result of a large number of people gathered and badly organized measures by the police.

And in general, is it really those who took part in the Tax Code Protest Maidan who should bear liability, and criminal at that, when they were forced to extreme measures?

They were placed in conditions when they lost the ability to work freely. That led them out onto Maidan. In my opinion, the moral liability for this conflict lies with the authors of the Tax Code who insisted on passing unacceptable norms and refused to discuss the draft code with business owners.

The criminal cases against the participants of Maidan 2 are therefore immoral!

They are also simply stupid after the President and Prime Minister acceded to the demands of the business owners.

The Interior Minister does not want to recognize this, continuing the investigation, expanding the circle of those accused.

They are in this way provoking people to new protests.

It is time to stop this campaign of intimidation!

“ Maidan refers in the first instance to he mass protest on Maidan Nezalezhnosti, or Independence Square in Kyiv, but more broadly symbolizes the willingness of ordinary people to come out onto the streets to uphold their rights.

www.khpg.org

Stop the political persecution!

14.02.11 | Yevhen Zakharov

January 2011 saw a wave of detentions, searches, interrogations of members of the organizations VO Svoboda [the Freedom Party], V.O. Tryzub and other similar organizations. At first the talk was of suspicion of having carried out the explosion of the bust of Stalin in Zaporizhya late in the evening of 31 December, however later these suspicions were discarded and there have been no reports of those responsible for the explosion being found. At the end of January 9 members of the “Tryzub” were in custody over the beheading of the same bust of Stalin on 28 December: Vasyl Labaichuk; Andriy Zanuda; Edward Andryushchenko; Roman Khmara; Pylyp Taran; Yury Ponomarenko; Vitaly Vyshnyuk; Anatoly Onufriychuk and Vasyl Abramiv. All of them were detained between 8 and 19 January and charged under Article 296 § 2 of the Criminal Code (hooliganism carried out by a group of people). It was reported that the detainees had all their things removed and were issued instead light clothing, that they were given virtually nothing to eat and that some of them were beaten, and that the police had put obstructions in the way of them seeing lawyers. The question of a preventive measure was reviewed considerably longer than the three days set down by law. All 9 accused were remanded in custody.

On 10 January a member of the Zaporizhya branch of V.O. Svoboda, Yury Hudymenko, was detained over a criminal case reinstated by the Regional Prosecutor under the same Article 296 § 2 of the Criminal Code. The case had been initiated in May 2010 over the daubing with paint of the monument to Felix Dzherzhynsky however was then terminated due to the lack of elements of a crime in Hudymenko’s actions. The investigator applied to the court to have Hudymenko remanded in custody, but the court did not initially agree, only extending the term of detention by 10 days. However on 20 January a ruling was nonetheless passed to remand him in the SIZO [pre-trial detention unit] for two months. Artyom Matviyenko who is also charged with daubing paint over the monument, together with Hudymenko, is under a signed undertaking not to abscond.

Several members of Tryzub have been detained and released. Another four are being held in custody. Andriy Stempytsky and Stepan Bychek are accused of unlawful possession of weapons. Ihor Zahrebelny and Artyom Tsyhanyok of setting fire to the office of the Communist Party in Zaporizhya back in 2009.

It is difficult to speak with certainly about the criminal cases mentioned at the present stage since the investigation is not completed and some of the charges are unknown. However some things can, a priori, already be considered.

In the 2001 version of Article 296 of the Criminal Code, hooliganism is “flagrant violation of public order motivated by overt disrespect for society, accompanied by particular impudence or exceptional cynicism.” Yet the accused had no intention of insulting society, expressing disrespect since the overwhelming majority of society have a negative attitude to Stalin and Dzherzhynsky as the organizers of mass murder and protested against the erection of the bust of Stalin by the Zaporizhya communists. In both cases, the motive was entirely clear – to express their attitude to Stalin and Dzherzhynsky.

Thus, these acts were merely expressions of their views. It is interesting to draw a parallel between these forms of expressing ones views to the considerably more audacious form, that of burning the national flag in protest against the politics of the regime. According to Article 65 of Ukraine’s Constitution respect for State symbols is a duty of Ukrainian citizens, while Article 338 of the Criminal Code carries a punishment for public dishonouring of the state symbols of either Ukraine or other countries. The situation in the USA is different with the standards of freedom of expression of views being considerably higher.

It became common to burn the State flag in the USA during the period of mass protests against the Vietnam War at the end of the 1960s. In 1968 a federal law was passed on respect for the American flag. Analogous laws were passed in the majority of states. These laws qualified the public burning of the national flag as dishonour and a criminal offence.

After the application of these laws, the case reached the US Supreme Court. In 1989 the Supreme Court in the case of Texas vs. Johnson judged that the burning of the flag as a form of protest is guaranteed by the First Amendment and therefore all laws which ban such actions are unconstitutional. President George Bush, who held the opposite view, suggested that the Congress pass a special federal law establishing criminal liability for disrespect of the flag. The law was passed, however the Supreme Court immediately declared it unconstitutional since it violated the right of Americans to express their views. Since that time defenders of the flag have been trying to bypass the judgment of the Supreme Court by passing new amendments to the Constitution especially devoted to defence of the flag. Over recent years at least 12 such attempts have been made, yet no amendment has been adopted.

We can also apply the European mechanisms for protecting human rights: freedom of expression is defended by Article 10 of the European Convention. The actions of those accused of hooliganism fall under that Article. The actions of the agents of the State in response constitutes interference in exercising freedom of expression and, in accordance with Article 10, must be based on the law “in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary” and “be necessary in a democratic society”

We would note that the reaction of the communists and their supporters to the daubing of part on the monument to Dzherzhynsky; the erection of a bust of Stalin; the reaction to the beheading of the bust of Stalin are also ways of expressing their views. That is, in these cases, we are dealing with political discussion and actions linked with this. In accordance with European Court of Human Rights case law in the area of political discussions, “Article 10 leaves no room for restriction of freedom of expression”. The

European Court has confirmed this in connection with numerous cases involving Kurds vs. Turkey (1994-1994) – applicants Aslan, Polat, Syurek, Karatash, Bashkai, Ibrahim Aksoi, Okutan, Kyurchyu, Varhii, and many others.

In order to establish whether there has been a violation of Article 10 one needs to determine whether the interference was well-founded. That is, firstly, whether it pursued a legitimate aim. If so, then, secondly, whether the interference was proportionate to the aim pursued. And thirdly, if so, whether the interference was necessary in a democratic country (for example, whether it was an adequate reaction to an urgent public need).

In considering this, we can draw an analogy with the well-known case of Salov vs. Ukraine. Donetsk lawyer Serhiy Salov was the authorized representative of presidential candidate Oleksandr Moroz at the 1999 elections. On 30 and 32 October he distributed 8 copies of a special issue of the newspaper Holos Ukrainy [Voice of Ukraine} from 29 October which asserted that the current Presdent, Leonid Kuchma had died on 24 October. The issue was a fake. On 31 October 1999 the Kyiv District Prosecutor in Donetsk initiated a criminal investigation against Salov on a charge of obstructing the electoral rights of citizens (Article 127 § 2 of the Criminal Code). On 1 November 1999 Salov was arrested for circulating false information. He was held in a SIZO during the investigation and court proceedings from November right up to 1 June 2000, when the preventive measure was changed from remand in custody to a signed undertaking not to abscond. On 6 July 2000 a district court found him guilty of obstructing the exercise by citizens of their electoral rights by means of deception, in order to influence the results of the presidential elections. He received a five year suspended sentence with a two-year trial period in view of the fact that Salov’s actions “did not cause actual serious consequences”. The Regional and Supreme Courts upheld this ruling. Salov applied to the European Court alleging a violation of Article 5 § 3, Article 6 § 1 and Article 10 of the European Convention. The European Court found that these violations had taken place.

In considering whether Article 10 had been violated, the Court agreed that the newspaper which Salov had circulated contained false information and found that the interference of the State had pursued a legitimate aim, that of ensuring the right of voters to truthful information during the 1999 presidential campaign. However in view of the insignificant influence which the circulation of 8 copies of the newspaper and the seriousness of the punishment imposed, the Court found the interference to have been disproportionate pursuance of the legitimate aim. There was no consideration of whether such interference was necessary in a democratic society.

In the cases over the daubing with paint of the monument to Dzherzhynsky and beheading of the bust of Stalin, the proportionality of interference and need in a democratic society have clearly not been observed. Furthermore, the interference of the State was not based on the law since the legal qualification of the offence as hooliganism is incorrect and used in order to apply the most severe punishment possible.

We can thus confidently predict that if the members of Tryzub and VO Svoboda accused of hooliganism apply to the European Court of Human Rights, in both cases the Court will find violations by the State of Article 10. It is clear that Article 5 of the Convention which defends the right to freedom and personal security has also been violated. There are no lawful grounds for deprivation of liberty during the investigation which, according to European Court case law, would be deemed well-founded, in these cases.

However it is apparent that the daubing with paint and beheading of the bust cause damage. If the law enforcement bodies had raised the issue of compensation for the damage caused, this would have been an adequate reaction.

From this analysis it follows that the ten people accused of hooliganism over the beheading of the bust of Stalin and the daubing with paint of the monument to Dzherzhynsky are political prisoners in accordance to the definition given. Political persecution must stop! The charges of hooliganism must be dropped and those involved released from custody.

www.khpg.org

Selective criminal prosecutions are the hallmark of an undemocratic regime

22.12.10

2010 has been marked by an increase in prominent criminal prosecutions for crimes allegedly committed with the use of official position.

The Ukrainian Helsinki Human Rights Union and the Kharkiv Human Rights Group would like to be able to welcome efforts by the authorities to fight corruption, misuse of power and impunity among members of the State apparatus.

However concern is elicited by the fact that the criminal prosecutions are aimed exclusively at members of opposition political parties. We have in mind the initiating of criminal cases against Yulia Tymoshenko, Bohdan Danylyshyn, Yury Lutsenko and others. Under analogous circumstances criminal cases against representatives of the current government have not been initiated.

In some cases members of the opposition are accused of actions which members of the present government are engaged in now with impunity. For example, in one case the charge is of not returning a deposit made during the privatization of the Odessa Port Factory, although this deposit has still not been returned with liability for this being borne by the official presently occupying this post.

With the entrenched tradition of lawlessness and abuses, disregard for the law and governance through individual dictate which has been typical of the authorities over many years, selective criminal prosecutions solely aimed at members of the opposition spell the effective use of criminal court proceedings for political ends. Such practice runs counter to democratic values based on equality of all before the law and undermines the foundations of criminal justice.

This seems especially unacceptable given the unpunished assault on opposition National Deputies in parliament and attempts by the government to block the work of branches of opposition political parties.

Selective application of legislation is a typical weapon of undemocratic regimes. Fearing defeat in conditions of fair political competition and political freedom, the regime in such countries removes opposition figures with the use of criminal prosecutions. This can be compared to the selective presentation of news when somebody decides which news to circulate, this resulting in the lack of full information and a distorted impression of what is going on in society.

Furthermore, when members of a political party that has come to power at each step carry out unlawful actions with impunity, while their political opponents are prosecuted for the same actions, this compromises justice and establishes dictatorship of force. It also undermines any public faith in the honesty of the regime’s intentions and its adherence to the rule of law.

In conditions where there is an established court system and tradition dating back over many years, one could hope that the courts would stand in the way of manipulation of the criminal process. However the judicial reform carried out this year has made judges highly dependent on politicians.

The President and the majority in parliament which are at present part of one political force effectively have the opportunity, via the High Council of Justice, to exert influence on judges. This body of power plays a key role in the appointment and dismissal of judges and in bringing disciplinary proceedings against them.

The Prosecutor General stated immediately after his appointment that he would implement any order of the President. Later utterances clearly demonstrate his total dependence on the President.

A member of the Party of the Regions has been appointed Head of the High Court on Civil and Criminal Cases, while his deputy is the Prosecutor General’s brother.

All of this gives rise to well-founded doubts that the court proceedings in these political cases will be run in keeping with the standards of the right to a fair trial.

The President constantly asserts that his aim is to build a European-style democratic State. The best proof of this would be to stop the prosecution of the political opposition under the guise of fighting misuse of power.

The Ukrainian Helsinki Human Rights Union and the Kharkiv Human Rights Group call on the authorities to put an end to selective criminal prosecutions and the sharp decline in political freedom in the country.

Volodymyr Yavorsky

Executive Director, Ukrainian Helsinki Human Rights Union

Yevhen Zakharov

Co-Chair, Kharkiv Human Rights Group

khpg.org

Public Committee against Political Persecution in Ukraine

Document No. 3

Persecution of members of the former government for governmental decisions

One could welcome the declarations of the authorities regarding the need to fight corruption, misuse and impunity among public officials. However the charges brought against members of the opposition: Yulia Tymoshenko; Yury Lutsenko; Yevhen Korniychuk; Bohdan Danylyshyn; Valery Ivashchenko; Ihor Didenko and Anatoly Makarenko are at very least dubious. It remains unclear what criminally punishable acts they are supposed to have committed. It is not even suggested that they gained personal benefit from their actions. However first and foremost this is not a matter of systematic fighting against corruption, and under analogous circumstances criminal proceedings are not being initiated against members of the present government, although they sometimes resort to the same actions as those imputed the accused.

In general the use of criminal prosecution for governmental decisions under the guise of fighting corruption spells the destruction of the system of State governance. Political errors of ones predecessors, if they took place, should be rectified by the new regime using political methods, not the Criminal Code.

With the entrenched culture of governance as dictated by individuals and disregard for the law typical of the authorities throughout the 20 years of Ukraine’s independence, selective criminal prosecutions for governmental decisions of only members of the opposition has effectively meant the use of criminal justice for political ends. This is essentially a faulty understanding of “misuse of power”. Such practice runs counter to democratic values based on the equality of all before the law and undermines the foundations of criminal proceedings. The lack of independence of the judiciary and the resulting numerous violations of standards of just court considerations, including falsification of the charges, ignoring the principle of equality of arms, unwarrantedly harsh measures of restraint and flagrant violations of the right to liberty and right of defence highlight the political motivation of the authorities among the public.

The lack of any legal grounds for depriving Yury Lutsenko of his liberty, the flawed justification in the charges repeated by the court that he does not admit guilt and publishes articles in the press about his case demonstrate the overt lack of objectiveness and serious malaise afflicting our justice system. Another indicator of this grave illness was the unwarranted remand in custody of Yevhen Korniychuk on the day that his daughter was born; the continued detention of Valery Ivashchenko who clearly requires medical examination and treatment, etc. These cases which grip the attention of the public and media reveal the typical human rights violations which take place each year in the criminal prosecutions of ordinary citizens.

The Ukrainian authorities are demonstrating total failure to comply with the norms of a civilized law-based state with a democratic political culture. A member state of the Council of Europe and signatory to many international accords on human rights must simply not behave in this way.

The last straw which has exhausted the patience both of Ukrainians and western countries was the arrest on 5 August of Yulia Tymoshenko for infringing order during the trial and insulting witnesses, as well as the idiotic assertion from both the judge and prosecutor that the order for her arrest was not subject to appeal. Yet who bears responsibility for the abnormal running of the case? Not the court which does not give defence lawyers time to read the file material, disregarding the right to defence and through this violating the principle of adversarial justice?

This barbaric decision has aroused a wave of indignation both in Ukraine and in the world, and led to widespread calls for Yulia Tymoshenko’s release. Are our authorities able to rectify their mistakes or has the illness become incurable?

It should be noted that the diagnosis of «manic repressive psychosis»[2] applies not only to the authorities, but to society also. The conviction that one can overcome corruption through repressive measures, that somebody must end up in prison; the calls to put more inside dominate not just among a considerable percentage of the public, but among some of the intelligentsia. Yet we have already been through a situation where one half of the country was imprisoned and the other guarded them, and it ended in the total collapse of that country. Can the leadership of Ukraine not understand that political persecution leads to the country’s total isolation and collapse?

President Yanukovych constantly asserts that his aim is to build a European model democratic state. The best proof of this would be to release political prisoners and stop persecuting the political opposition under the charade of fighting misuses and corruption.

Members of the Public Committee against Political Persecution in Ukraine

Zinoviy Antonyuk; Ludmila Klochko; Ihor Koliuszko; Mykola Kozyryev; Kateryna Levchenko; Myroslav Marynovych; Vasyl Ovsiyenko; Oleksandr Pavlychenko; Iryna Rapp; Yevhen Sverstyuk; Yevhen Zakharov, Iosiph Zisels, Volodymyr Yavorsky

8 August, 2011

The Public Committee against Political Persecution in Ukraine

Document 4

Access to medical care, this including free choice of doctor, is one of the minimum standards stipulated by the European Committee for the Prevention of Torture, Inhuman or Degrading Treatment or Punishment with respect to detainees and people accused of a crime and remanded in custody. The position of the European Court is also clearly articulated in a number of judgments, for example, in the case of Kucheruk v. Ukraine, Yakovenko v. Ukraine and others. Failure to provide timely and appropriate medical care is deemed inhuman or degrading treatment and is a violation of Article 3 of the European Convention on Human Rights which guarantees the right to not be subjected to torture and ill-treatment. Ukraine has committed itself to comply with the European Convention which forms a part of its domestic legislation. Nonetheless failure to provide medical care to people in custody is a systemic and widespread rights violation in Ukraine and this is particularly evident in the high-profile cases which the public are following, such as the prosecution of the former Minister of Internal Affairs, Yury Lutsenko.

On 28 May Mr Lutsenko was examined by Professor S. Tkach from the Faculty of Internal Medicine of the Bogomolets National Medical University and O. Shvets, the Chief Diet and Nutrition Doctor [Dietolog] of the Health Ministry and Associate Professor of the same University. Their recommendation was that Lutsenko would receive treatment in a specialized hospital. However the diagnosis given by these specialists, the results of the examinations and their recommendations were concealed from both Lutsenko and his family. This in itself constitutes a violation of the Constitution and Law on Information which make it mandatory to provide a patient or his or her representative with information about their state of health. His condition only deteriorated and on 30 August the same specialists examined him again. The diagnosis given is extremely serious: cryptogenic cirrhosis of the liver with portal hypertension and digestive tract varicose veins.

According to O. Shvets there was also a very serious situation in May involving an ulcer condition and Lutsenko needed specialized hospital treatment. Yet he was not transferred to a hospital as had been recommended by S. Tkach and O. Shvets. It is not known whether their prescriptions were implemented. Over the last three months Lutsenko’s condition has seriously deteriorated. In May the cirrhosis, which is a very serious liver illness, was not diagnosed. So that the cirrhosis of the liver does not progress and to avoid complications, the specialists have recommended treatment in a gastroenterological clinic. This treatment cannot be provided in the SIZO [detention centre] which does not have the qualified doctors, medication and equipment.

Yet the court, against the doctors’ recommendations, only permitted Lutsenko to be seen by medical staff from Health Ministry establishments within the confines of the SIZO. According to the Health Ministry’s Chief Diet and Nutrition Doctor, this is extremely dangerous. Over the next weeks in Lutsenko’s detention conditions, the disease will only get worse. Without full treatment, the cirrhosis of the liver could progress, with its decompensation, complication developing (haemorrhages, etc). In the most serious case, it could turn into cancer.

The failure to provide medical care to Yury Lutsenko can be classified as inhuman treatment which is in violation of Article 3 of the European Convention on Human Rights. We therefore demand that Lutsenko be immediately provided with hospital treatment in the appropriate medical clinic.

Public Committee against Political Persecution

Zinoviy Antonyuk; Arkady Bushchenko; Ludmila Klochko; Ihor Koliuszko; Mykola Kozyryev; Kateryna Levchenko; Myroslav Marynovych; Vasyl Ovsiyenko; Oleksandr Pavlychenko; Iryna Rapp Yevhen Sverstyuk; Volodymyr Yavorsky; Yevhen Zakharov; Josif Zisels

4 September, 2011

Ukraine’s Justice System unravelling

Halya Coynash

Tension is mounting both in Ukraine and abroad as Judge Kireyev’s verdict, due on 11 October, in the trial of Yulia Tymoshenko, draws closer. The former Prime Minister and main rival in last year’s presidential elections, is effectively being tried for a political move which restored the gas flow to Europe in the winter of 2009. Despite undoubtedly stern words, foreign diplomats, EU officials and others seem to be waiting a touch too passively. After all, the same meeting of PACE Foreign Ministers due to discuss the trial on Monday is set to extend sanctions against Belarus, among other things, adding 15 names to a blacklist against Belarusian officials. The latter has to a large degree been prompted by repressive measures against opponents of Lukashenko in the December presidential elections.

Sounding familiar? So it should.

The Danish Helsinki Committee for Human Rights recently issued a second Monitoring Report in which it analyzed four disturbing prosecutions of former members of Yulia Tymoshenko’s government, including that of the former Prime Minister herself. All warrant attention, but one – that of ex-Minister of Internal Affairs, Yury Lutsenko, has been unravelling before our eyes in a way that should send heads rolling. The heads are intact, another application for a change to the restraint measure against Yury Lutsenko, in detention now since December 2010, rejected on Monday, 10 October, and the trial continues.

None of the charges against the former Minister involve any personal gain to himself. The accusations presently being examined by the court involve Lutsenko’s driver – Leonid Prystuplyuk. Lutsenko is accused of having “exceeded his authority with grave consequences for the State” by having his driver employed within the MIA Department of Investigative Intelligence, getting him an MIA flat and an early enhanced pension.

Over the last few weeks EIGHT witnesses summoned by the prosecution have stated in court that they did not receive instructions from Lutsenko, and that in any case the employment of Leonid Prystuplyuk was entirely above board and standard practice. A number of them have explained that any driver accompanying the Minister needs to have the same access to State secrets as the Minister, this being the reason for that particular department. Nor, they say, was Prystuplyuk given special treatment. All drivers of the Minister’s predecessors had been officially employed in the same department. Thus far not one witness has suggested that the initiative to provide Prystuplyuk with a flat came directly from Lutsenko. The pension issue has not yet been raised, yet surely follows from the general position held within the MIA.

There have been very serious question marks over why Security Service strongmen should have arrested the former Minister and likely strong opposition candidate back in December last year, and why he remains in detention in October 2011 despite doctors from the Health Ministry recommending hospitalization. Not, of course, to mention the dubious grounds for remand in custody at all.

The last few weeks have highlighted a number of other concerns. Last Friday, for example, saw two witnesses not only state in court that neither Lutsenko nor they had committed any offence, but actually testify that they had never told the investigators anything different. The case of Valery Melnyk, former Aide to the ex-Minister is particularly disturbing. He accused the investigators of having distorted his testimony and also stated that he had been rung a few days before the hearing from the Prosecutor’s Office and advised what he should say in court. He said that there had been two calls and he was told to say what he’d said during the interrogation. He added that he had been phoned from that same number during the investigation.

These, to state the obvious, are extremely serious allegations and require no less serious examination. The obvious must be stated, unfortunately, since Lutsenko’s demand that the investigators be called in to explain themselves was rejected as “premature”, and Lutsenko remains in custody.

Stern words, and demands that the trial of Yulia Tymoshenko be “transparent” seem scarcely adequate, when the travesty unfolding bears so little relation to justice.

www.khpg.org

On the Court Ruling changing the Restraint Measure against Yulia Tymoshenko

28.08.11 | Gennadiy Tokaryev, Bar Lawyer and KHPG Expert

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 (¹12369.86, from 26.06.1991, §39), W. v. Switzerland (¹14379/88, from 26.01.1993 §36), I.A. v. France (¹28213/95, from 23.09.1998 §110), and later Kauczor v. Poland (¹45219/06, 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, ¹ 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 (¹ 38717/04, from 14.10.2010 ðîêó) 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 restrain, 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 (¹ 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.

khpg.org

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.

25 October, 2011

Ukrainian Helsinki Human Rights Union

Kharkiv Human Rights Group

Before 12 November 41 human rights NGOs joined to Statement.

 

[1] Compiled by Yevgeniy Zakharov

[2] Author of the term is Moses Fishbein. See: www.radiosvoboda.org