Mailis Reps: The problem must be resolved

  The Legal Committee of the Parliamentary Assembly of the Council of Europe [PACE] is planning to draw up procedure for application of the PACE Resolution defining the term political prisoner. The newspaper Kommersant Ukraine writes that this will probably result in Yulia Tymoshenko and Yury Lutsenko being declared political prisoners. In an interview given to the newspaper by Mailis Reps, the Co-Rapporteur on Ukraine spoke of the politically motivated cases against members of the opposition, the yet to be kept commitment to resolve the situation given by President Yanukovych, concerns about the elections and more.

Asked when the next visit to Ukraine is planned, Ms Reps said that they expected to come as soon as the new Verkhovna Rada has been elected. “We would be ready to come before the elections also if we felt that our visit would lead to positive moves in particular with regard to the leaders of the opposition who are in prison. However we don’t see any signs that at present in Kyiv there is the political will to resolve this problem, for example, by using the amnesty mechanism.

In the previous PACE resolution there was mention of the need to decriminalize Article 364-365 of the Criminal Code, however members of the Party of the Regions refused to do that. Do you now see a new variant?

Several months ago we had a discussion with President Yanukovych on that subject. He clearly stated that if all appeal levels for Yulia Tymoshenko were gone through, and this has already taken place, he would consider the possibility of a political solution.  In the last few days in Strasbourg I had a very interesting discussion with Yulia Lyovochkina (who represents Ukraine in the PACE Monitoring Committee – Ed.) which left the impression that now in Kyiv they’re waiting until a final judgement is passed by the European Court of Human Rights. This position is unacceptable! In the first place, the ECHR is not “another level” of Ukrainian justice. All three court levels on the gas deal have been concluded in Ukraine. Secondly, consideration of the case in ECHR could take a considerable amount of time since there are lengthy procedures in the court. This can in no way serve as justification for President Yanukovych putting off taking a decision. We are therefore still awaiting from him those positive steps which, it seemed, he was ready to make.”

She suggests that an amnesty would seem the most realistic solution, since a pardon in Yulia Tymoshenko’s case would be problematical.  The situation, she says, with Yury Lutsenko is somewhat different since there has been an ECHR judgment finding that his detention was unlawful. 

The interviewer demurs that surely this only concerned preliminary detention, not the substantive charges.

“I won’t tell a Ukrainian court what it should do, however the fact that a person was illegally detained gives the court additional opportunity to review the case, for further action. The second feature which differentiates the Lutsenko case is the humanitarian element linked with his state of health. And that gives the President the change to intervene and resolve the problem.”

She reiterates that while not telling the Ukrainian regime what to do, but the situation must be resolved.

Asked whether the term political prisoner will be used in the next report on Ukraine, Ms Reps points out that the use of the term remains in question, but says that “for the majority of experts there was clear selective justice in the Lutsenko case. It is evident that the punishment chosen for a member of the opposition was much more severe than it in such circumstances regarding other people.” And that, she points out, corresponds to the definition of political prisoner recently formulated in the PACE resolution.

She calls the Tymoshenko case more complex, but says that most experts say that the fact that a political decision was turned into a criminally liable one is unacceptable in most countries. With regard to the new cases, a selective approach is absolutely clear.

She does however note that at present they speak of politically motivated charges in the cases of Tymoshenko and Lutsenko, not political prisoners, but agrees with the interviewer that what she has described corresponds to the term “political prisoner” in the PACE resolution.  On the other hand, she reiterates, the situation is complex and the legal department must consider all legal aspects of any decision,

A special PACE resolution could take 2 to 3 years, hearings in the Legal Committee – 6 months.  The situation will become clearer within the next couple of months.

While a full report on Ukraine is unlikely in the next year, an interim report on the functioning of democracy is likely in spring or the beginning of summer.

Asked about the mention in the previous resolution of the possibility of sanctions, Ms Reps stated:

“Nobody is putting sanctions on the country before the elections. We are presently making all efforts to support the holding in Ukraine of free and fair elections. We are taking into consideration the fact that the leaders of the opposition remain in prison, that the media in your country is not free and for us that is unacceptable, however we hope that we will be able to influence that, supporting free elections. We have also noticed the chaos where with the draw for quotas on electoral commissions. And the excuses we’ve heard in Ukraine that it was supposedly practically and technically impossible to achieve a fully-fledged draw seem very strange to us. They haven’t convinced either the members of the PACE Observer Mission, or the co-rapporteurs on Ukraine. We note contradictory statements regarding video cameras at polling stations. We are also concerned by reports of attacks on candidates in single-mandate electoral districts.

Much abridged from the interview here