ECHR onsite visit to Yulia Tymoshenko conceivable
Arkady Bushchenko, Executive Director of the Ukrainian Helsinki Human Rights Union who has himself represented many people at the European Court of Human Rights says that a visit by the European Court is not out of the question. While clearly not wishing to predict what the Court will decide, he said that it may if it deems fit appoint a mission to Ukraine or use other means for examining the facts, for example, by questioning Yulia Tymoshenko and other people involved in Strasbourg.
“The procedure for appointing a fact-finding mission is not definitively fixed, however the parties may submit applications for such a mission or other measures aimed at establishing the facts, obviously presenting arguments as to why it would be impossible for the Court to reach judgement in the case without this”. He adds that applications from the parties in any case increase the chances of such a mission being sent.
Mr Bushchenko pointed out that Article 38 of the European Convention stipulates that the member state must provide the Court with all measures needed to carry out an effective investigation, including ensuring that the applicant or witnesses appear before them if that be required. “In Ukrainian cases the Court has carried out fact-finding procedure on 4 occasions, with the government providing all the necessary opportunities for this on each of those occasions”.
He stressed that it is presumed that if a person was in good health when they came into the hands of agents of the state and injuries are found later, then the onus is on the state to provide that it was not responsible. If the government is unable to provide such proof, then on the basis of this presumption, it bears responsibility. There are a fair number of situations, he adds, where the Court deems an investigation needed to be able to reach a final conclusion. “From what I know of the Yulia Tymoshenko case in the European Court, this would be possible as part of the examination of the complaint relating to Article 3 of the Convention (prohibition of torture or cruel, inhuman or degrading treatment – translator). Unfortunately from the documents available it is unclear whether the complaint has been including over the circumstances behind the injuries in April when Yulia Tymoshenko was transported to the hospital. Bearing in mind the very unclear circumstances of that case, one could speak of the possibility that the European Court will [wish to] establish the facts.”