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The European Court and Ukrainian politics

29.01.2013    source:
Yevhen Zakharov
Possible consequences of a published recording of a telephone conversation between Yulia Tymoshenko and her husband for the review of Tymoshenko’s case at the European Court, manipulation by politicians of public opinion


I am prompted to write this text because of the latest nonsense being circulated among politically concerned Ukrainians over the adoption of a judgement in the Yulia Tymoshenko case in Strasbourg. However, all in order.

Why this is important

The view that the criminal prosecution of Yulia Tymoshenko is politically motivated is shared by most Ukrainian and foreign experts. Representatives of the government and the application are effectively fighting in front of an authoritative arbiter to have Tymoshenko’s prosecution declared politically motivated by a court. The government is not disputing violation of Article 5 of the Convention (the right to liberty); but Article 18 it is.

Even the lack of mention of a violation of Article 18 in the application lodged by Yury Lutsenko’s representatives did not prevent the Court from effectively acknowledging the political purpose behind Lutsenko’s detention, and Lutsenko himself a political prisoner. Arrest and detention were wrongful punishment for Lutsenko having publicly rejected the charges laid against him and having insisted on his innocence – this was written in black and white in the submission of the prosecutor’s office and rulings of Ukrainian courts.

In the case law of the European Court of Human Rights, judgements finding violation of Article 18, i.e. abuse by the authorities of legislation for illegitimate aims, have been handed down in only three cases: aside from that of Lutsenko v. Ukraine, these are the cases of Gusinskiy v. Russia and Cebotari v. Moldova, although violations of Article 18 have been asserted in over 200 cases (see Political Persecution in the Context of European Court of Human Rights Case Law). For Yulia Tymoshenko’s imprisonment on 4 August 201 there were also no legitimate grounds. Her lawyers have asserted a violation of Article 18 in their application, however this case is more complicated and it is difficult to predict the Court’s judgement in this part of the case.

The public hearing into the case took place on 28 August last year, and there is still no judgement. Some impatient voices are claiming that the judgement is being deliberately dragged out, however they are wrong.

According to the procedure for public hearings, the Court hears the parties’ points of view, asks representatives of the government and the applicant questions, and at the end of the court hearing the judges retire to the consultation chamber where they vote on each violation of the Convention asserted at the hearing. After this a certain amount of time (which can be quite long) is taken to prepare a text of the judgement with this then discussed by the judges in the consultation chamber. Later the judgement iis finalized and  judges can prepare concurring opinions. This period can also be considerable. Only after that is the judgement published, with this being announced in advance.  The date that it is made public is considered the date that it is passed.

The period of waiting for a judgement in the Tymoshenko case and suspicions that it’s being stalled are based on the experience with the Yury Lutsenko case. The public hearings took place on 17 April 2012 and the second meeting of the Chamber on 26 June. The judgement was made public on 3 July, within two and a half months. However such record timeframes can be explained by the relative simplicity of that case. With respect to Ukrainian cases at the European Court of Human Rights, a public hearing has only been held three times, with the first public hearing being in the case of Salov v. Ukraine. It is linked with the Lutsenko and Tymoshenko cases by the overtly political motives of the criminal prosecution. The Salov case was discussed in Chamber on 22 March 2005 and on 5 July 2005, with the judgement published on 6 September, i.e. five and a half months after the public hearing.

Let’s consider cases not from Ukraine.  Georgia v. Russia No. 2 (on persecution of Georgians in Russia on instructions from above in October 2006) – the public hearing by the Grand Chamber on 22 September 2011; the repeat consideration of the case began on 14 June 2012 and ended on 27 November, with the judgement still not made public. There is still no judgement either in the case of Vistins and Perepjolkins v. Latvi where the public hearing took place on 11 January 2012, or in the case of Fabrice v. France which was heard in public on 4 April 2012.  One can thus wait for a Court judgement after the public hearing for a year and more. Allegations that the judgement in the Tymoshenko case is being stalled are therefore unfounded. We need to wait.

Intrigue against Tymoshenko

However someone has decided to make use of the impatient awaiting of the judgement. On 10 January several Internet sites posted an audio recording of a telephone conversation on 6 January between Yulia Tymoshenko and her husband in which she asserts that the Judge from Ukraine Hanna Yudkivska is holding up the procedure. Tymoshenko threatens that the “girl will choke that shit up”.

The posting of the recording was clearly directed against Tymoshenko and aimed at manipulating the European Court of Human Rights since threats from an applicant against a judge can cause a case to be withdrawn altogether, or for a judge to be replaced. According to Rule 281 (e) of the Rules of Court, a judge may not take part in a case if his or her independence or impartiality could on legitimate grounds be placed in doubt or for any other reason. The replacement of a judge entails the beginning of the court examination from the start, i.e. going back to the position of a year and a half ago. However the Court can also ignore this recording.

On 11 January Yulia Tymoshenko’s lawyer Oleksandr Plakhotnyuk stated on Ms Tymoshenko’s behalf that there had been such a conversation, but that the recording on the Internet had been doctored and distorted and that the judge had not been mentioned in the conversation. Plakhotnyk stated that Tymoshenko’s defence had already prepared a complaint to the Prosecutor General’s Office and the Kharkiv Regional Prosecutor’s Office regarding the appearance of the recording on the Internet and demanding that they find out who organized the phone-tapping.

This position from the defence seems to me weak and insufficient: if you assert that the recording was falsified, you need to demand an expert analysis of the recording and prove that it is a fake through legal procedure. Bearing in mind the obvious attempt of those who posted the recording to influence the European Court of Human Rights in its judgement in the Tymoshenko case, the assessment should be carried out in the shortest possible time and by an independent institution abroad.

Intrigue against Yudkivska

The recording which appeared on 10 January coincided strangely with distorted commentaries on the Judgement published a day earlier in the case of Volkov v. Ukraine. Ukrainska Pravda published an article under the title “Ukraine lost at the European Court through deputies voting for truant colleagues.  The “source” in the article reported that Hanna Yudkivska, Judge from Ukraine had voted for that judgement but with a concurring opinion in which she expressed opposition to the reinstatement of Volkov, arguing that there would be difficulties in enforcing that part of the judgement.  The comments were reposted by a number of media publications including the respectable Yurydychny Visnyk Ukrainy under the eyebrow-raising title “Legal ring: Hanna Yudkivska v. Oleksandr Volkov;  It seems nobody noticed  that the judgement in the Volkov case had been passed unanimously and that they were all too lazy to read the concurring opinion.  This excellent text on the one hand explains to ECHR judges the particular features of Ukrainian legislation regarding the Supreme Court and that the reinstatement of Oleksandr Volkov will be possible when a position becomes vacant, and on the other provides an analysis for us of how and when the European Court of Human Rights can point to specific measures of legal defence for enforcing its judgements. 

It is a shame that even the best Ukrainian journalists succumb to being used by political manipulators and mislead their readers. 

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