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Why not Tymoshenko?

Halya Coynash
The position taken that no intervention is possible until each criminal case against the former Prime Minister has passed through all possible stages in Ukraine cannot be used to effectively justify Yulia Tymoshenko’s indefinite incarceration.

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Optimism following the release of former Interior Minister Yury Lutsenko on Sunday was always restrained, since it came as a “pardon”after the cassation appeal against a manifestly flawed sentence had been rejected.  The position expressed by Ukraine’s Human Rights Ombudsperson, Valeria Lutkovska makes it seem likely that calls for a similar way out with former Prime Minister Yulia Tymoshenko will be ignored.

Ms Lutkovska was quoted by the President on his official website as appealing for Lutsenko’s release on health grounds.   According to his site, the President therefore asked the Committee on Pardons to consider this and other applications, including that from former Environment Minister Filipchuk.  By Sunday, Yury Lutsenko was, thankfully, a free man, together with Filipchuk and four other people.

The President’s Decree of 16 September 2010 actually states that a person must themselves ask for a pardon.  This was not the case with Yury Lutsenko, so the fact that Tymoshenko has made it clear that she will not ask to be pardoned, since she has not committed any crime, is in itself no impediment.  One of her lawyers, Oleksandr Plakhotnyuk, believes that the best way forward would be for the Ombudsperson to intercede as with Lutsenko.  There are, after all, concerns regarding Ms Tymoshenko’s health also.

Valeria Lutkovska, however, has told Kommersant Ukraine that the situation with Yulia Tymoshenko is different, and that the procedure used to free Yury Lutsenko cannot be applied. She does not, therefore, plan to ask the President to pardon the imprisoned opposition leader.

“In the Yury Lutsenko case we waited for the moment when all domestic remedies had been exhausted, and only after that did the Human Rights Ombudsperson take the decision to apply to the President for his pardon.  The situation with Yulia Tymoshenko is somewhat different: there are still two cases which are being examined in courts, and therefore not all domestic remedies have been exhausted, and it is premature to speak of the pardon process”.

The President referred to Ms Lutskovska’s appeal on Friday evening when Lutsenko’s cassation appeal against the second conviction had only just been heard.  Since the judgement had been deferred until 10 April. strictly speaking, on 5 April, all domestic remedies had not been exhausted.  This may seem like a quibble since Lutsenko’s four year sentence had indeed already been upheld, but the ongoing cassation appeals had been cited for a very long time to justify no intervention. .

More worryingly, Lutkovska’s argument unwarrantedly lumps all of the charges against Tymoshenko together, thus enabling reference to her inability, as per the Law on the Ombudsperson, to intervene where court proceedings are still underway.

Former Prime Minister Yulia Tymoshenko is serving a seven year sentence over the 2009 Gas Accords with Russia.  The cassation appeal against this sentence, which has been condemned by the EU and all democratic countries, was rejected in August 2012.  This means that there are no domestic remedies remaining against Ms Tymoshenko’s conviction and imprisonment.  A judgement is, in fact, awaited from the European Court of Human Rights. 

If there are now concerns about Ms Tymoshenko’s health, then the argument presented by the Ombudsperson against seeking a pardon with respect to her conviction is less than convincing. 

There are indeed two other criminal cases against Tymoshenko.  Both have been treated with similar scepticism by the international community.  They are, nonetheless, ongoing, and here the Law on the Human Rights Ombudsperson can perhaps be cited.  In fact, there are clear restrictions on keeping people in detention where their health is at risk, and it is difficult to understand why the Ombudsperson could not ask for a different form of restraint measure once a pardon had been issued in the case of the seven-year sentence. 

It is worth noting that the second charges against Tymoshenko were first given highly manipulative coverage on the sycophantic State-run TV channel UTV-1 during the first wave of international outrage over the former Prime Minister’s 7-year sentence.

She was indefinitely “detained in custody” over this second charge of embezzlement and tax evasion in early November 2011 from her cell during a travelling court hearing which was also widely condemned.

Over recent months, an extraordinary “pre-trial court examination” has been taking place in Kyiv with Ms Tymoshenko accused of ordering the murder 16 years ago of Donetsk MP and businessman Eugene Shcherban.  There are conflicting stories as to whether Ms Tymoshenko is being prevented from attending the hearings, or is herself refusing.  With journalists stopped from seeing her a few days ago, there must be doubt as to who is hampering full examination of this case.

The position taken that no intervention is possible until each criminal case against the former Prime Minister has passed through all possible stages in Ukraine cannot be used to effectively justify Yulia Tymoshenko’s indefinite incarceration.  Since this would be the outcome, such arguments are disingenuous and show lack of will to eliminate selective justice. 

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