Ambassador to Austria and UK Permanent Representative to the United Nations and other International Organisations in Vienna
Part of UK in Ukraine
18th November 2011
Why European governments think opposition trials are flawed
I’ve referred in two recent blogs, What next for Ukraine and What next for Ukraine #2, to what needs to happen in order to move towards the signature and ratification of the EU-Ukraine Association Agreement. There has been good progress recently on negotiating the nuts and bolts of the Agreement, and hopes are rising that it might be possible soon to declare the negotiations complete. But as I said in a third blog, EU jargon and Ukraine: what it means, completing the negotiations and initialling them is not enough for the Association Agreement to enter into force. For that to happen, the Agreement has to be signed and ratified. EU member states have made clear that that is unlikely to happen unless opposition leaders detained on the basis of flawed trials are freed and able to participate in the political process.
The key word there is “flawed”. Many European governments, including that of the UK, have expressed concern that the present court actions against opposition leaders in Ukraine do not meet European standards, or appear politically motivated. Since there is a widespread principle of justice in Europe that people are “innocent until proved guilty”, the judgement that the court cases are flawed because they are based on politics, rather than on right or wrong, is important. It means that, in these cases, arguments that Mr X or Ms Y has been found guilty of crime Z carry no weight for European governments.
So why do those governments think that way?
One important source in these concerns is the work of the Danish Helsinki Committee for Human Rights, which has so far published three “Preliminary Reports”: Legal Monitoring in Ukraine, Legal Monitoring in Ukraine II, and Legal Monitoring in Ukraine III. Some key quotes, taken directly from the reports, are as follows:
– “Selective justice and abuse of criminal justice system is a violation of Article 6 on Fair Trial of the European Convention on Human Rights and falls short of the country’s international obligations to ensure respect for the rule of law principles” (Legal Monitoring in Ukraine);
– “Charges are criminalizing normal political decisions with which the present government disagrees; investigation and prosecution in the Criminal Justice System requires a reasonable suspicion of an offence having been committed and that it does not serve a political purpose” (Legal Monitoring in Ukraine II);
– “Most of the charges are of a character which would never be considered a criminal offence in countries with a different legal tradition and would not be dealt with in the Criminal Justice System” (Legal Monitoring in Ukraine II);
– “The monitoring of the four cases has left the impression of prosecutors and judges with limited understanding for the presumption of innocence and equality of the parties during the trial” (Legal Monitoring in Ukraine II);
– “The decisions on detention failed to provide individual justification for the legality of the use of detention with regard to the specific facts of the case, as required by the European Court on Human Rights” (Legal Monitoring in Ukraine II);
– “A defendant does not have the obligation to cooperate with the investigator or to show proper behavior to him; to draw negative consequences can be a violation of the right to personal liberty and security and the right not to self-incriminate” (Legal Monitoring in Ukraine II);
– “A number of events in the monitored cases cast doubt as to the proper understanding by the Criminal Justice System of the rights of the defendant according to the European Convention on Human Rights and European standards” (Legal Monitoring in Ukraine II);
– “The similarity between the cases leave little doubt that the handcuffing and caging of the defendants Lutsenko, Ivashchenko and Korniychuk is a violation of Article 3 of the European Convention on Human Rights on inhuman and degrading treatment” (Legal Monitoring in Ukraine II);
– “Reopening investigation in cases which have been legitimately closed violates Article 6 and Article 18 of the European Convention on Human Rights when the decisions are not justified by legitimate purposes and grounds” (Legal Monitoring in Ukraine III);
– “The statute of limitations also prevents the reopening of most if not all of the eight investigations against Mrs. Tymoshenko which were closed in 2004 and 2005” (Legal Monitoring in Ukraine III);
– “The statements by the Prosecutor General’s Office on the cases against Mrs. Tymoshenko justifies doubt as to the objectivity, independence and impartiality of the Criminal Justice Sector” (Legal Monitoring in Ukraine III);
– “The complicated terminology and mixture of factual descriptions and allegations in the resolution to open investigation in the Debt Case makes it very difficult or even impossible to identify the acts which are incriminated to Mrs. Tymoshenko and therefore violates her right to defense and to a fair trial” (Legal Monitoring in Ukraine III).
Actually, the reports as a whole are worth a read. In addition to the English texts of the Danish Helsinki Committee Reports to which the links above lead, the texts are also available in Ukrainian, here, here and here. I, along with everyone else who wants to see Ukraine become a successful European country on the path to EU integration, with the Association Agreement signed and ratified, hope we will see progress on resolving the issues raised by the trials of opposition leaders as soon as possible.
Dear Mr. Turner,
Well, well. Swindler – to freedom and for Ukraine – Association of Agreement. But democracy in Ukraine are freedom of speech and free elections were avaliable due to the efforts of President Yushchenko, and not Prime Minister Tymoshenko.
Then why Europe, rather some part of it were many people do not know about the declaration of Tymoshenko’s income and her luxurious life style, she is always ready to sacrifice her reputation for a person who does not promote European acceptance and neither joining NATO? Moreover, she promoted the main enemy of Ukraine V. Putin. For what cause such hustles?
Dear Bogdan – thanks for this. The issue is not the qualities of Ms Tymoshenko, but whether the justice system is operating to an acceptable standard. The reports quoted here provide strong evidence that the current trials of opposition leaders are flawed.
Dear Mr. Turner, our power and its paid supporters in the Internet are ready for all to wash their hardly spoiled reputation. But “all” means here only some empty words and some idle talks. Everything we can afford is nonviolent resistance, but you should remember (if my advice is appropriate here) the good English word “boycott”. It helps.
Oleg – thanks for this. Good to hear from you.
– “Most of the charges are of a character which would never be considered a criminal offence in countries with a different legal tradition and would not be dealt with in the Criminal Justice System”
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Quite an opposite opinion from Mr. Silverglate:
Ukraine Is More Western Than You Think: The Trial of Yulia Tymoshenko
http://www.forbes.com/sites/harveysilverglate/2011/10/21/ukraine-is-more-western-than-you-think-the-trial-of-yulia-tymoshenko/
Harvey Silverglate, contributor
(I practice law — criminal defense, civil liberties, and academic freedom/student rights cases. I’m a four-decade columnist and contributor to the Boston Phoenix, an alternative weekly, as well as an occasional contributor to The National Law Journal, Massachusetts Lawyers Weekly, The Wall Street Journal, The Boston Globe, and elsewhere. My books include Three Felonies a Day: How the Feds Target the Innocent (Encounter Books, 2009) and The Shadow University: The Betrayal of Liberty on America’s Campuses (Harper Perennial, 1999; co-authored with Alan C. Kors). In 1999, Kors and I co-founded the Foundation for Individual Rights in Education (FIRE; http://www.thefire.org), a 501(c)(3) dedicated to the defense of individual liberties on campus. )
October 21, 2011
… And Tymoshenko has hardly remained a universally beloved figure. She had, after all, made untold millions—or perhaps billions—in the gas industry soon after the fall of the Soviet Union. She was prime minister during a controversial period of time. And, finally, she seemed determined to remain a thorn in the side of the current administration, consistently accusing it of corruption and criminality. And so it was with some surprise, but little shock among those familiar with Ukrainian politics, that Tymoshenko was indicted for activities she allegedly undertook while in office.
But the nature of those allegations should strike close observers of American law and politics as quite familiar. Tymoshenko was accused of violating articles 364 and 365 of the Ukrainian criminal code, articles which govern the abuse of authority in office. According to the statutory language in article 364, abuse of authority occurs when there is:
… a willful use of authority or official position contrary to the official interests by an official for mercenary motives or other personal benefit or benefit of any third persons, where it caused any substantial damage to legally protected rights, freedoms and interests of individual citizens, or state and public interests, or interests of legal entities.
The same act states that the punishment will be greater when there are “grave consequences” to the behavior.
The statutes are presumably designed to curb public corruption and prevent the excess absorption of power into individual leaders.
… Tymoshenko was indicted for
having ordered…without the approval of the Cabinet of Ministers the negotiator of the state owned joint-stock company Naftogaz to sign an agreement with Russian Gazprom on delivery of gas at an unfavorable price, causing a loss of around $194 million.
…
As we wrote here earlier this year, our own 9th Circuit United States Court of Appeals upheld an obstruction of justice conviction of a now-disgraced baseball player for giving a rambling answer that was later clarified in the same grand jury testimony. In Illinois, a former governor is on his way to prison for what we view as typical political horse-trading. Earlier this year, a former vice-presidential candidate was indicted on trumped up charges stemming from a sexual indiscretion. And those are only high-profile examples from this year!
The problem, of course, is that the United States has a number of laws that make Article 364 of Ukraine’s Criminal Code seem almost scientifically precise by comparison. Consider, for instance, the American notion of “honest services fraud.” According to American law, one may not engage in “a scheme or artifice to deprive another of the intangible right of honest services.” The requirement to provide honest services applies to employees in the private sector as well as to government officials…..
Thanks for this. Raising alleged iniquities in other parts of the world in respone to queries about one’s own system is of course a valid form of debate. But in this case we are talking about Ukraine. The conclusions of the reports quoted here are clear.