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06.05.2013 | Halya Coynash

Ukraine’s Prosecutor General v. the European Court

   

Prosecutor General Pshonka

A psychoanalyst might assume that top Ukrainian officials were in a state of denial listening to their comments on the European Court of Human Rights judgment in the case of Tymoshenko v. Ukraine.  With EU-imposed deadlines looming for the signing of the EU-Ukraine Association Agreement, a political diagnosis of the denials and distortions, especially those from Ukraine’s Prosecutor General and Prime Minister, may be more appropriate. 

The 30 April ECHR Judgment found three violations of Article 5 over Tymoshenko’s arrest and detention and of Article 18 in conjunction with Article 5.  It rejected by a majority, with three judges issuing a dissenting opinion, allegations of torture and ill-treatment under Article 3.

There was also another concurring opinion of significance given widely divergent assertions made about one vital aspect of the judgment.  The case was analogous to that of Yuriy Lutsenko with the Court finding that the detention had been for reasons other than those allowed by law.  Article 18 is extremely seldom applied since the Court prefers to assume that countries act in good faith.  Lutsenko’s lawyers had not alleged violation of Article 18, so the fact that the judges were unanimous in adding it left nobody in any doubt that the detention was seen as politically motivated. 

With respect to Tymoshenko there was also unanimous agreement that there had been a violation of Article 18, however the wording of the actual judgment only alludes to a reason other than those permitted, i.e. her arrest and detention “had mainly served to punish her for a lack of respect for the trial court”.

Three judges, however, believed that “the reasoning of the majority does not address the applicant’s main complaint, which concerns the link between human rights violations and democracy, namely that her detention has been used by the authorities to exclude her from political life and to prevent her standing in the parliamentary elections of 28 October 2012.”  Their opinion points out that given the difficulty of proving political motivation, some degree of interpretation must be made. 

Most people in fact did conclude that the “other reasons” for the Prosecutor’s application for Tymoshenko’s arrest and judge’s acquiescence were politically motivated. 

Not, however, Ukraine’s Prosecutor General whose comments were widely reported in the media and now adorn his official website.  They should be noted and not only because it was the Prosecutor who asked for Tymoshenko’s detention.  Viktor Pshonka has from the outset made it clear that he views his job description as being to do whatever the President asks.   

In an interview to TV Inter, Pshonka asserted that the European Court had found that “there was no politics in the Tymoshenko case”  

According to the Prosecutor General, “the conclusion and explanation is that the European Court judgment does not lead to Tymoshenko’s release, does not require her release”.

From a purely formal point of view, no it doesn’t, however it is galling that Pshonka should draw no better conclusion from the fact that the European Court has now twice found that prominent members of the opposition were remanded in custody for reasons that have no place in law.

Pshonka also claims that the Court recognized the Ukrainian authorities’ “humanity” towards Tymoshenko.  The Judges’ comments, in fact, only noted that Ms Tymoshenko had undoubtedly received better treatment than other prisoners.  Pshonka’s remark shows either that he has never read the damning reports from international bodies on conditions of imprisonment in Ukraine, or is assuming his audience have not.

Even without the concurring opinion from three of the seven judges, it is quite impossible to see the Prosecutor General’s description of the judgment as aimed at anything but misleading the Ukrainian public.

Pshonka is not the only leading public figure to have felt compelled to deny political motivation in the former Prime Minister’s prosecution.  Tymoshenko’s successor, Mykola Azarov told a German newspaper that Tymoshenko had cost the country over 15 billion EUR and suggested that any politician would answer for that.  Azarov claimed not only that the court had rejected the majority of her complaints, but that it had not seen a political component in her case. 

The judgment can easily be read on the ECHR site, but is not yet available in full in Ukrainian.  Even if it were, the assumption is probably right that most people would not spot the lie in these officials’ words.  Most will, regrettably, be exposed only to the manipulatively dosed or downright inaccurate information provided by most TV channels. 

This, admittedly, did not stop the majority of respondents in a Razumkov Centre survey from concluding political pressure, in particular from President Yanukovych, in the Lutsenko case. 

Even with political players, a large part of the media and international reputation launderers intent on ensuring that Tymoshenko’s case is associated with huge amounts of money supposedly stolen from the Ukrainian public, the results of a similar survey about Tymoshenko would probably be similar. 

Azarov and others can continue to claim that only technical complexity is holding up the signing of the EU-Ukraine Association Agreement though such assurances have lost any credibility.  The EU and many western countries have stated emphatically that the European Court of Human Rights Judgment confirms their concerns over selective justice in Ukraine and called for Tymoshenko’s release.

Time is short, and denial a dead end. 

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