OpenTrial - equity's guardian.
TRIAL OF YULIA TYMOSHENKO
FAIR TRIAL CONCERNS
“We have grave concerns that the prosecution and judicial system in Ukraine is so significantly flawed that the trials of Yulia Tymoshenko and other political defendants are likely to result in horrendous miscarriages of justice,” said Jerry Prus-Butwilowicz, the leader of the Humanitad observer mission, barrister-at–law, a former UK Senior Crown Prosecutor. “There is compelling evidence that the judicial system itself is subject to improper influence from the Prosecutor’s Office and incapable of being independent, or fair. Judges themselves are open to intimidation and even prosecution by the Prosecutor’s Office when they exercise their objectivity on behalf of a defendant or appellant. This is abhorrent to standards of European justice. In these circumstances it is the responsibility of the executive to take urgent and immediate corrective measures to prevent serious miscarriages of justice.”
"Ukrainian courts and prosecutors are not independent or impartial; preventive custody is overused and abused; presumption of innocence and equality of the parties is non-existent; there is a lack of independence of judiciary from political influence; courts are open to undue influence by politicians; the appointment and discipline of judges is flawed; the Higher Council of Justice is under undue political influence; the role of Ukrainian General Prosecutor is overly powerful and fatally undermines separation of law functions; there is imbalance between prosecution and judiciary; selection of judges has violated international and Ukrainian law." - from an open letter to Viktor Yanukovich, the President of Ukraine, signed by Jerry Prus-Butwilowicz (LLB), Former UK Senior Crown Prosecutor / Special Legal Counsel: Humanitad; Sir John Walsh of Brannagh, International & Constitutional Lawyer; Professor Paul Wilson (OAM, BA Hons, MA Hons, PhD)Professor of Humanities and Social Sciences / Criminologist and Forensic Psychologist; Lewis Montague, Secretary-General: Natural World Organisation; Michael Upstone (BA Hons), Director of Law & Administration: Humanitad and Sacha Stone, Founder: Humanitad / Director-General: Natural World Organization.
United States and European Union officials say the persecution of Tymoshenko and others 'constitute selective prosecution of political opponents'.
REPORT BY TRIAL OBSERVERS
Humanitad (www.humanitad.org) legal observers who witnessed part of the trial and closely monitored the proceedings and reports of other third-party observers (e.g. The Danish Helsinki Committee for Human Rights, “Legal Monitoring in Ukraine II”) noted the following:
- "• The selection of judges violates both Ukrainian and international law. Judges are appointed for an initial 5 year term. To become a judge for an unlimited time they must be approved by parliament, making them vulnerable to political assessment and influence. The judge in the Tymoshenko case is only two years into his 5 year term. The computerised selection of judges to cases also appears open to abuse.
- • The judiciary is too easily swayed to allow remand in custody as a precautionary measure – 88% of custody requests were fulfilled in 2010 – illustrating an extraordinary influence from prosecutors.
- • Not all politicians respect the independence of the judiciary. The latter can be influenced by statements from senior politicians, such as the President, Prime Minister, Deputy Head of the Presidential Administration, etc..
- • The Prosecutor General exerts undue influence on the judiciary. Prosecutors should not be responsible for disciplining judges.
The Danish Helsinki Committee for Human Rights Report cites a case on 7 June, 2011 when Deputy Prosecutor General M. Havrylyuk, a member of the Higher Council of Justice, initiated disciplinary proceedings in the Higher Council of Justice against three appeal court judges for “having ignored the opinion of the prosecutor, unreasonably interfered with the course of pre-trial investigation, and taken a one-sided position in favour of the defendant.” This situation highlights the fact that there is no legitimate and honest appeal system in Ukraine and judges who decide against the prosecution are likely to be prosecuted themselves.
- • If judicial officers in Ukraine can be influenced in such a manner, then defence lawyers are likely to be operating under similar undue pressure and influence which may impact the efficacy of their defence to the detriment of their client."
Yulia Volodymyrivna Tymoshenko is leader of the All-Ukrainian Union "Fatherland" party and was prime minister of Ukraine from 24th January to 8th September 2005, and from 18th December 2007 to 4th March 2010. Prior to this she was a practising economist and academic who became a successful businesswoman in the gas industry.
February, 2009 - President Viktor Yuschenko instructs the National Security Council and Prosecutor General's Office to investigate whether negotiations and contracts signed with Russia regarding natural gas transit comply with the Ukrainian law, namely comply with established procedure and that directives were issued lawfully and observed. The Security Council considers the basic price for gas ($450 per 1,000 cubic meters) stated in the contract between Naftogaz Ukrainy and Gazprom for 2009-19, as economically unfounded and one of the highest in Europe.
4th March 2010 - Tymoshenko loses the 2010 presidential election to Viktor Yanukovych (having gained 45.47% of the vote), claiming the vote was rigged.
12th May, 2010 – The investigation into the accusation that Tymoshenko bribed Supreme Court judges is reopened by Ukraine's prosecutor's office.
15th December, 2010 - A criminal case against Tymoshenko, alleging that she misused funds received by Ukraine within the framework of the Kyoto Protocol, is commenced by the General Prosecutor, Viktor Pshonka.
20th December, 2010 – Tymoshenko is officially charged and ordered not to leave Kiev during the enquiry. Georgiy Filipchuk, the Minister for the Environment in the second Tymoshenko government, is detained on criminal charges. Former Minister of the Interior, Yuriy Lutsenko, was charged with abuse of office in early December 2010 and the former Minister for the Economy, Bohdan Danylyshyn, was detained on similar charges in the Czech Republic in October, 2010.
27th January, 2011 - New corruption charges are filed against Tymoshenko. She stands accused of using 1,000 Opel Combo medical vehicles, purchased on government guarantees, for campaigning in the presidential elections of 2010. Tymoshenko denies the charges and sees them as a campaign to silence the opposition.
10th April, 2011 - An investigation is commenced into an alleged abuse of power during the 2009 Russia–Ukraine gas dispute.
26th April 2011 - Tymoshenko sues businessman Dmytro Firtash and Swiss-based RosUkrEnergo in a U.S. District Court in Manhattan for "defrauding Ukraine's citizenry by manipulating an arbitration court ruling” in connection with an 2010 international arbitration court ruling in Stockholm which ordered Ukraine's state energy company, Naftogaz, to pay RosUkrEnergo 11 billion cubic metres of natural gas to compensate for fuel it had "expropriated", plus 1.1 billion cubic metres as a penalty.
24th May, 2011 – Tymoshenko is formerly charged for alleged abuse of power, but not arrested.
23rd June, 2011 – The Public Prosecutor's Office declares that it stands ” for maximum fairness, openness and transparency of the judicial process in this case. We insist on publicity during the trial, the presence of media representatives and public organisations in the courtroom covering the trial in accordance with the rules written out in the laws, and the possibility that the prosecution and defence sides can present their views and give reasonable answers."
24th June, 2011 – The trial of Tymoshenko, presided over by Pechersky District Court Judge Rodion Kireyev, commences for abuse of office with regard to a 2009 contract for the supply of natural gas by Russia. It is heavily criticised for significant breaches of procedural fairness and of the European Convention on Human Rights for:
- insufficient time being given to prepare a defence;
- continuation of court proceedings in the absence of the defendant and legal counsel;
- unreasonable and unjustified use of detention;
- the trial judge frequently favouring the prosecution to the detriment of the defendant.
Early-July, 2011 – A criminal investigation into alleged non-delivery by United Energy Systems of Ukraine (in 1996) of goods to Russia for $405 million is opened. Tymoshenko managed United Energy Systems in the mid 1990s and denies the accusations.
5th August 2011 - Tymoshenko is arrested for 'ridiculing court proceedings' and is held at Lukyanivska Prison.
27th September, 2011 - The trial resumes after a two-week break that was attributed to Western pressure.
28th September, 2011 - Ukraine’s state prosecutor, Liliya Frolova, requests a seven-year jail sentence for Tymoshenko.
30th September, 2011 - The trial is adjourned until 11th October.
11th October, 2011 - The judge ruled that Tymoshenko had criminally exceeded her powers when she signed a gas deal with Russia in 2009 and sentenced her to seven years in prison. Tymoshenko is also ordered to pay back 1.5bn hrivnas ($186m; £119m) lost by the state gas company as a result of the deal and is banned from holding political office for three years. Tymoshenko plans to take the case to the European Court of Human Rights
22nd February, 2014 - Yulia Tymoshenko is released from her seven-year prison sentence after the Ukrainian parliament intervenes. See: http://www.opentrial.org/injustice-alerts/item/137-ukraine-yulia-tymoshenko-denied-a-fair-trial