1. Procedure
1. The motion for a resolution dated 5 October 2011
was transmitted to the Committee on Legal Affairs and Human Rights
for report on 25 November 2011.
At its meeting on
13 December 2011, the committee appointed me as its rapporteur,
and at its January 2012 meeting, it authorised me to carry out fact-finding
visits to Iceland and to Ukraine and to organise a hearing with
experts at a forthcoming meeting.
2. At its meeting on 24 April 2012, the committee examined an
introductory memorandum,
requested an opinion from the
European Commission for Democracy through Law (Venice Commission)
from a comparative and constitutional law perspective and authorised
me to launch an information request through the European Centre
for Parliamentary Research and Documentation (ECPRD)
network.
From 6 to 9 May 2012, I carried out a fact-finding visit to Iceland.
On 21 May 2012, the committee held a hearing with the participation
of Professor Helmut Satzger (University of Munich, Germany) and
Professor Luc Verhey, State Councillor (University of Leiden, Netherlands).
3. At its meeting on 1 October 2012, the committee considered
an information memorandum on the situation in Iceland,
held an exchange of views and agreed to declassify
the information memorandum. From 18 to 20 February 2013, I carried
out my fact-finding visit to Ukraine.
Finally, on
8 March 2013, the Venice Commission adopted the opinion requested
by the committee.
2. Introduction
4. The principle laid down by the initiators of the
motion underlying my mandate is seemingly clear and simple:
“The Assembly finds it necessary
to distinguish between political and criminal responsibility. Political decisions
shall be judged by parliament and ultimately the voters at the next
elections. Criminal acts shall give rise to prosecution, no matter
by whom they are committed.”
5. The motion rightly stresses that “there must be no impunity
of political actors who commit or participate in such ordinary crimes
as murder, abduction, embezzlement, theft and corruption”.
6. The difficulty lies in correctly distinguishing between actions
or omissions of political actors that are properly defined as “criminal”
and others that should only give rise to political responsibility,
no matter how controversial and disputable they may be. In starting
work on this subject I was particularly worried about the enormous
consequences certain types of political action can provoke. In this
time of deep economic recession in many parts of the Eurozone, calls
for action to be taken against politicians and decision-makers may
well increase, as unemployment soars and austerity measures really
bite. When, with hindsight, some political decisions are not perceived
as appropriate, the call for action to be taken may well grow very
loud. Yet, it is good to have the rules of the game set out clearly
before “the game” starts. One can limit the action politicians are
able to take in a constitution or in ordinary laws. There is an
obvious need to assess how best one can limit the (potentially)
massive contingent liabilities politicians are able to provoke;
such action can cause real hardship and a failure of the State.
That said, this important issue – which certainly merits further
reflection – goes beyond the scope of the present report.
7. My objective is to propose a set of objective and practical
criteria allowing us to make this distinction in such a way as to
avoid double standards. The starting point must be that politicians
are responsible for their actions before their electorate. If, in
addition, they shall be held criminally responsible for any actions
or omissions whilst in office, this is only acceptable if they have
committed criminal offences that have been clearly and strictly
defined by law, in advance, and if they are prosecuted and tried
following a fair and transparent procedure before an independent
and impartial court.
8. The cases of the former Ukrainian Prime Minister, Yulia Tymoshenko,
and the former Minister of Interior, Yuri Lutsenko, and of the former
Icelandic Prime Minister, Geir Haarde, which were also referred
to in the motion, raise a number of challenging issues. They must
also be placed in the context of the legal situation in other member
States. Our colleague Marieluise Beck (Germany, ALDE), rapporteur
on “Threats to the Rule of Law – asserting the authority of the
Parliamentary Assembly”, was told by the Ukrainian authorities during
her fact-finding visit to Kiev in February 2012 that similar provisions
to those sanctioning “abuse of power” on the basis of which Ms Tymoshenko
and Mr Lutsenko were convicted also existed in many other countries,
including France, Germany, Poland and the United Kingdom. She was
also told that the “abuse of power” provisions criticised by the
Assembly in its
Resolution
1862 (2012) on the functioning of democratic institutions in Ukraine are
needed for the fight against corruption and against torture. Ms
Beck asked me to follow this up as part of the present report. In
fact, during my own visit to Kiev, in February 2013, I heard the
same arguments.
9. Consequently, I launched an information request through the
ECPRD in order to find out whether and how different types of abuse
of office procedures are penalised in the Council of Europe’s member
States. I shared the information received through the ECPRD network
with the Venice Commission, which provided an excellent opinion
focusing on the constitutional and human rights law aspects of ministerial
criminal responsibility. This opinion will be the basis for the
first main part of this report (section 3), in which I attempt to develop
some general principles guiding the distinction between political
and (legitimate) criminal responsibility of politicians.
10. In the second main part of this report (section 4) and in
section 5, I will apply these principles to the above-mentioned
cases in Ukraine and Iceland.
11. In my introductory memorandum,
I had submitted a cursory overview of the
various types of cases that could fall under this rapporteur mandate
and gave some specific examples.
Unfortunately, the resources available
to a rapporteur of the Assembly do not permit me to cover many of
these still very topical issues and cases. In line with the conclusions
of the introductory memorandum, the committee therefore agreed that
I should concentrate on developing general principles and limit
the case studies to the aforementioned Ukrainian and Icelandic examples.
3. Towards the establishment
of guiding principles for separating political and criminal responsibility
12. I am aware that proposing guiding principles for
separating political and criminal responsibility – or more precisely,
developing criteria distinguishing legitimate criminal responsibility
of politicians from unacceptable criminalisation of political decision-making
– is a tall order. Using as a basis the Venice Commission opinion, the
contributions of the legal experts at the hearing before the committee
and the data provided by the ECPRD network, I will submit but a
modest proposal for basic principles that we should all be able
to agree on. I shall begin by examining some procedural problems,
before addressing relevant substantive issues, and before trying
to distil some “guiding principles.”
3.1. Concerning procedure:
ordinary criminal courts or special impeachment procedures?
13. The comparative study by the Venice Commission shows
that there is great variation in the procedures for holding politicians
to account in the member States of the Council of Europe.
14. A number of countries (for example Germany, Ireland, Portugal,
Ukraine
and the United Kingdom) have no special procedures for the criminal
responsibility of politicians, which is governed by ordinary criminal procedure.
In these countries, it is for ordinary public prosecutors to initiate
proceedings and for ordinary criminal courts to hear the cases and
judge them.
15. Other countries, in particular those in the Scandinavian region,
but also Belgium, France and Poland, have separate procedures for
the criminal accountability of ministers. These are usually referred
to as “impeachment proceedings”,
and the special courts set
up for this purpose as “courts of impeachment”.
16. But in the latter countries, too, the special impeachment
proceedings are applicable only to offences committed by ministers
in their official capacity, whilst violations of ordinary criminal
provisions committed in a private capacity are left to the ordinary
criminal courts. The special rules may cover all stages of the proceedings,
beginning with initial inquiries, the decision to initiate formal
proceedings, the rules on prosecution, the composition of the court
and the rules governing the procedure itself.
17. Countries in which it is for parliament to decide whether
or not to initiate criminal proceedings against a government minister
include all Scandinavian countries, as well as Austria, Estonia,
Greece, Italy, Liechtenstein, Lithuania, the Netherlands, Poland,
Romania, the Slovak Republic, Slovenia and Turkey. Special courts
of impeachment for government ministers are found in most Scandinavian
countries and also in France and Poland. Their typical feature is
that they are usually composed partly or wholly of parliamentarians or
persons appointed by parliament. Other countries having special
procedures refer cases of ministerial criminal responsibility directly
to a supreme jurisdiction (Constitutional or Supreme Court), for
example Albania, Austria, Liechtenstein and Slovenia.
18. During my fact-finding visits to Iceland and Ukraine, I had
the opportunity to study in some more detail one example of each
of the two models in use in Europe, namely the special impeachment
procedure, in Iceland, and recourse to ordinary criminal courts,
in Ukraine. The two examples show that this procedural, institutional
choice is not a decisive factor in determining whether one or the
other model is inherently superior in terms of avoiding politically
motivated abuses.
3.1.1. Special impeachment
procedures: the Icelandic example
19. I can agree with the Venice Commission, in light
of my Icelandic experience, “that special procedural rules for impeachment
of ministers are often more political than ordinary procedures.
Whilst this in itself may not be in breach of basic principles of
the rule of law, it still makes such systems particularly vulnerable
to criticism and political misuse, which calls for extra caution
and restraint in the way they are interpreted and applied”.
20. In my information memorandum on the case of former Icelandic
Prime Minister Geir Haarde,
I have presented in some detail how
– much to my own surprise – the Venice Commission’s misgivings about
this type of procedure in general have indeed materialised. It was
indeed the new majority in parliament which decided, along party-political
lines, to initiate criminal proceedings for the failure to avoid
the banking crisis only against the former Prime Minister and not
against the ministers who had been directly in charge of banking
issues within the same (coalition) government but who belonged to
parties forming part of the new majority. It would indeed appear
that the new majority’s objective was to somehow “criminalise” their
predecessors’ choice of economic liberalism that had contributed
to the rise and fall of the Icelandic banks. In my conversations
in Reykjavik, I could sense a lot of unease even among the political
supporters of the prosecution, especially concerning the fact that
the Prime Minister was singled out in such a way.
21. I should like to stress that Mr Haarde was in the end acquitted
of the main accusation – “failure to act” to prevent the banking
crisis – and was found criminally responsible, but without any punishment
imposed on him, only on account of a formal violation, namely failure
to include the threatening banking crisis on the formal agenda of
a cabinet meeting, contrary to the wording of the Icelandic Constitution
(see section 5 below for a summary of my critical evaluation of
this case).
22. Meanwhile, I can only welcome the fact that – as I was told
in Reykjavik – the procedural provisions governing ministerial responsibility
in Iceland are in the process of being reformed.
3.1.2. Ordinary criminal
procedures: the Ukrainian example
23. My second fact-finding visit, to Ukraine, has made
it very clear to me that the choice of using the ordinary criminal
courts for holding politicians to account is by no means a guarantee
for a fair procedure that ensures the exclusion of political considerations.
24. The quality of proceedings of ordinary criminal courts depends
not only on the technical legal training and professionalism of
the judges, prosecutors and defence lawyers, but also on the effective
independence of the courts and of each individual judge. This is
especially true for judges dealing with cases of ministerial criminal
responsibility and called upon to interpret and apply broadly worded
abuse of office provisions (see section 3.2 below). The recommendations
of the Venice Commission, based on the comparative advantages of
the different models of ministerial responsibility used in different
European countries, are founded on a simple assumption: namely that
courts are indeed courts, as understood by the founders of the Council
of Europe and the drafters of the European Convention on Human Rights
(ETS No. 5, “the Convention”). Courts can make mistakes, and even
the highest courts are not infallible, but they must strive to reach
an objective, impartial and independent assessment of the facts
put before them, in the light of evidence the credibility of which
they must impartially and independently assess, and by application
of the law of the land as interpreted professionally, in accordance
with generally recognised principles of legal interpretation.
25. Please allow me to call a spade a spade: the Ukrainian courts
which have handed down the judgments against Ms Tymoshenko and Mr
Lutsenko are not “courts” within the meaning of the basic assumptions
on which the Council of Europe’s human rights machinery is built.
Other courts dealing with related cases, such as those concerning
Ms Tymoshenko’s political ally and legal adviser, Yuri Vlasenko,
function like clockwork, always reaching the decisions expected
by the powers that be. This includes the family court refusing to
take into account the fact that Mr Vlasenko had paid up the maintenance
owed to his ex-wife, thus preventing him from leaving Ukraine in
order to attend the Assembly’s January 2013 part-session, despite
the fact that he is a duly appointed member of the Ukrainian delegation.
This includes the High Administrative Court, which, in record time,
stripped Mr Vlasenko of his parliamentary mandate, despite the procedural
violations committed in the parliamentary committee making the request
and on purely formal grounds, applied selectively to his case only.
I
cannot believe that Ms Tymoshenko and all her political allies are
always legally in the wrong, every single time!
26. A recent judgment of the European Court of Human Rights (“the
Court”) in the case of
Volkov v. Ukraine sheds some
light on the reasons for the apparent lack of independence of the
Ukrainian judiciary. The Court ordered the reinstatement of the
applicant, a supreme court judge removed from office for “breach of
oath”, having found violations both of procedural (Article 6) and
substantive (Article 8) rights of the Convention. Interestingly,
the judgment names as two of the key actors in the flawed procedure
leading to the abusive dismissal of a senior judge, the chairperson
of the Verkhovna Rada’s judicial committee, “S.K.”,
and “R.K.”, who is also the leading
prosecutor in the criminal cases against Ms Tymoshenko and Mr Lutsenko.
27. A recent Opinion of the Venice Commission on this issue
severely
criticises both the procedures used in disciplinary proceedings
against judges – in particular the composition of the High Council
of Justice, largely controlled by the political majority – and the
unclear and wide formulation of the grounds for disciplinary measures,
including dismissal of judges. According to the Venice Commission,
these “include very general concepts such as … the ‘violation of
moral and ethical principles of human conduct’ among others. This
seems particularly dangerous because of the vague terms used and
the possibility of using it as a political weapon against judges”.
28. I am particularly worried about the combined effect of the
public statement by the current Prosecutor General, Mr Victor Pshonka,
who presented himself as “part of the President’s team”
and the conviction rate in Ukrainian
criminal courts, which exceeds 99%.
The
subordination of the Prosecutor General to the President is not
only a personal position expressed by Mr Pshonka; It stems directly
from the law, because the President has unfettered discretion to
dismiss the Prosecutor General, in accordance with an amendment
to the Law on the Prokuratura introduced shortly after President
Yanukovych came to power. The logical consequence of the subordination
of the Prosecutor General to the President and the fact that the
courts almost never acquit is that the President can have anyone
imprisoned, at any time. The Prosecutor General and two of his deputies,
including the above-mentioned (paragraph 26) Renat Kuzmin, are members
of the High Council of Justice, a body with a leading role in the
appointment and dismissal of judges.
29. In my view, the cases against former Prime Minister Yulia
Tymoshenko and former Interior Minister Yuri Lutsenko are not just
selective justice – the term often used by international observers
– but no justice at all: the outer form of court proceedings was
merely used as a disguise for the execution of the new majority’s intention
to take key opposition leaders out of the political equation and
punish them for the action they took whilst in power. I will provide
a summary of my reasons for this admittedly harsh conclusion in
the case studies below.
3.2. Concerning substantive
criminal law: general “abuse of office” provisions or specific criminal
provisions against corruption and other forms of abuses?
30. The Venice Commission opinion and the ECPRD replies
confirm the statement of the Ukrainian authorities that abuse of
office provisions potentially penalising politicians exist in many
European countries.
31. In fact, a clear majority of the countries represented by
the 28 replies to the ECPRD request (namely 20) have some form of
a criminal offence of “abuse of office” on their statute books.
These include not only most of the former communist States, but
also the Scandinavian countries, Austria, Italy, the Netherlands, Switzerland
and the United Kingdom. But it must be stressed that most of these
countries require intentional or wilful violations of official duties
for the purpose of either gaining an unlawful advantage or causing
harm to others, and that in almost all of these countries, the provisions
have been rarely, if ever, used against ministers or former ministers.
32. At the same time, the replies given by the parliamentary research
services of those countries which do not have such provisions contradict
the Ukrainian authorities’ argument that such provisions are needed
in order to effectively prosecute corruption and the use of torture
by the police. There is no perception or even discussion in any
of the countries without an abuse-of-office provision that there
may be a gap in the legislative arsenal to combat corruption or
torture. Such acts are covered without problems by other, more specific, criminal
provisions such as those penalising active and passive bribery,
and the intentional infliction of bodily harm.
33. As a result, there is very little difference in practical
terms between those countries which do and those which do not have
an offence of general “abuse of office” on their books, provided
the courts construe the general offence narrowly, as is the case
in most of these countries. Interestingly, Estonia recently repealed
the general offence of abuse of office and replaced it by a series
of specific offences because the existing provision was considered
as too broad and vague and not actually needed.
It
must also be stressed that in none of the 28 countries for which
a reply was received was a former minister inflicted a penalty that
was anywhere near as harsh as those imposed on the former government
members in Ukraine. Also, in the small number of cases examined
by the Venice Commission in which abuse-of-office provisions were
actually applied to former ministers, an element of corruption or
other forms of economic gain was always present,
with the exception of
the case of former Icelandic Prime Minister Geir Haarde – who was
acquitted of the main substantial charge (neglect of official duties).
34. Substantive national rules on criminal responsibility of politicians
must comply with Article 7 of the European Convention on Human Rights
and other requirements derived from the principle of the rule of
law, including legal certainty, predictability, clarity, proportionality
and equal treatment.
The European Court of Human Rights,
in the case of
Liivik v. Estonia criticised the provision now abolished
by Estonia, which had been inherited from the Soviet legal system,
finding that its interpretation “involved the use of such broad
notions and such vague criteria that the criminal provision in question
was not of the quality required under the Convention in terms of
its clarity and the foreseeability of its effects”.
35. In light of the above, I fully agree with the Venice Commission’s
conclusions that “wide and vague national criminal provisions on
‘abuse of office’ constitute
a particularly problematic category. While there may be a perceived
need for such general clauses, they are still problematic, both
with regard to Article 7 of the Convention and other basic requirements
under the rule of law, and they are also particularly vulnerable
to political abuse” (paragraph 113).
36. I should like to add that the above principles apply both
to the legislative texts as such and, even more importantly, to
its application in each individual case. In the words of the Venice
Commission opinion, “provisions on ‘abuse of office’ should be interpreted
narrowly and applied with a high threshold. … The Venice Commission
also holds that when applying provisions on ‘abuse of office’ against
government ministers the special nature of politics should be taken
into account. To the extent that such provisions are invoked against actions
that are primarily of a political nature, then this should only,
if at all, be done as the last resort (
ultima ratio).
The level of sanctions should be proportional to the legal offence,
and not influenced by political considerations and disagreements”
(paragraphs 114 and 115).
3.3. Guiding principles:
an attempt to distinguish political responsibility from legitimate
criminal responsibility
37. In view of the above procedural and substantive considerations,
it is quite straightforward to come up with the following guiding
principles, which I have included in the draft resolution for explicit
endorsement by the Assembly:
1) Criminal proceedings should not be used to penalise political
mistakes or disagreements.
2) Politicians should be accountable for ordinary criminal
acts in the same way as ordinary citizens.
3) Substantive national rules on ministerial criminal responsibility
must comply both with Article 7 of the European Convention on Human
Rights and other requirements derived from the principle of the
rule of law, including legal certainty, predictability, clarity,
proportionality, and equal treatment.
4) In particular, wide and vague national criminal provisions
on “abuse of office” can be problematic, both with regard to Article
7 of the Convention and other basic requirements under the rule
of law, and they can also be particularly susceptible to political
abuse.
5) Politicians should therefore, as a rule, be held criminally
liable for acts or omissions committed in the exercise of their
office only when they act for personal gain or violate fundamental
rights of others.
6) As regards procedure, as long as the charges brought against
politicians are of a “criminal” nature, according to Article 6 of
the Convention, the same basic fair trial requirements apply both
to ordinary criminal procedures and to the special impeachment procedures
which exist in a number of Council of Europe member States.
7) Special rules for impeachment of ministers must not be
in breach of basic principles of the rule of law. As such rules
are susceptible to political abuse, they call for extra caution
and restraint in the way they are interpreted and applied.
38. The real difficulty lies in drawing the line, in
practice, between the first two principles, namely between legitimate
accountability of politicians for ordinary criminal acts and illegitimate
penalisation of political decision-making.
39. In this respect, the Venice Commission has, if I may use the
sporting image, passed the ball back to the Parliamentary Assembly,
by expressly leaving the drafting of any criteria in this respect
to the Assembly and limiting its own role to contributing some “general
reflections”.
Fortunately,
one of our experts, Professor Satzger, came up with an original
and helpful approach at the committee hearing in September 2012,
which I first applied to the case of Geir Haarde in the information
memorandum on the situation in Iceland.
40. Professor Satzger, too, drew a parallel with sports: he recalled
that a football player, for example, is subject to sanctions under
the rules of the game in case of foul play, thus escaping ordinary
criminal responsibility for intentionally or negligently causing
bodily harm. His opponent will get a free kick, or even a penalty
shot, but the perpetrator of the foul will not be prosecuted criminally
– except when he commits such an outrageous attack on an opposing
player that the presumed prior consent (or waiver of criminal responsibility)
applicable to “normal” fouls clearly does not apply. Mutatis mutandis, a politician and
his or her “team” (party) will lose votes at the next elections,
and maybe even be voted out of office if he or she makes a political
mistake, even a grossly negligent one, or one that looks particularly
bad with the benefit of hindsight. But criminal responsibility,
with all that it entails, comes into play only if and when the politician’s
acts or omissions fall clearly outside the perimeter of normal (albeit
possibly flawed) political decision-making.
41. In my view, this would normally be the case only when a politician
acts for personal gain and/or intentionally violates fundamental
rights of others. Otherwise we would risk sliding down a slippery
slope towards allowing judges to second-guess political decision-making,
and ultimately attaching criminal sanctions to differences in opinion.
Especially in the current times of economic crisis, politicians
must be allowed a margin of error, without incurring the threat
of criminal prosecution. With the benefit of hindsight it can be
tempting to find the one or the other political decision “wrong”
or even “reckless”. But responsible politicians must be allowed
to experiment with innovative solutions whilst incurring “only”
the judgment of the electorate and not that of criminal courts making
a comfortable ex post assessment.
42. The line between legitimate and illegitimate criminal responsibility
of politicians is also clearly crossed in a given case when the
criteria for the definition of political prisoners, reconfirmed
by the Assembly in its
Resolution
1900 (2012), are fulfilled. With the possible exception of item
b, all the elements of the definition
laid down in the resolution reproduced below are pertinent and provide
valuable guidance for the distinction between legitimate accountability
and politically motivated persecution.
“A person deprived of his
or her personal liberty is to be regarded as a ‘political prisoner’:
a. if the detention has been imposed in violation of one
of the fundamental guarantees set out in the European Convention
on Human Rights and its Protocols (ECHR), in particular freedom
of thought, conscience and religion, freedom of expression and information,
freedom of assembly and association;
b. if the detention has been imposed for purely political
reasons without connection to any offence;
c. if, for political motives, the length of the detention
or its conditions are clearly out of proportion to the offence the
person has been found guilty of or is suspected of;
d. if, for political motives, he or she is detained in
a discriminatory manner as compared to other persons; or,
e. if the detention is the result of proceedings which
were clearly unfair and this appears to be connected with political
motives of the authorities.”
44. Not all cases falling into one or more of the above categories
concern the illegitimate criminalisation of political decision-making.
The cases of politically motivated persecution of youth activists,
journalists and peaceful demonstrators described in a recent report
on “The follow-up to the issue of political prisoners in Azerbaijan”
by our German colleague Christoph Strässer do not
concern political decision-making, whilst those of two former cabinet
ministers figuring on Mr Strässer’s list of presumed political prisoners
may well do so. Also, not all politicians prosecuted for past policy
choices are “presumed political prisoners” – for the simple reason
that most of them were never actually imprisoned – Geir Haarde is
a case in point. However, all imprisoned politicians whose cases
do fulfil the above criteria can be seen as victims of illegitimate criminalisation
of political decision-making. For these reasons, I intend to base
the Ukrainian case studies below on the criteria laid down in Assembly Resolution 1900 (2012).
4. The persecution
of leading political opponents in Ukraine – two case studies on
the basis of Assembly Resolution
1900 (2012)
44. The criminal cases brought against former Prime Minister
Yulia Tymoshenko and former Interior Minister Yuri Lutsenko have
given rise to severe criticism by the international community.
Both Ms Tymoshenko and Mr Lutsenko
have submitted applications to the European Court of Human Rights,
some of which are still pending. Some of the accusations launched
against them are also still pending before the Ukrainian courts,
or even still in the process of being finalised by the prosecutor’s
office. But the purpose of this report is not to pass a legal “judgment”
on these cases, which would amount to usurping the role of the courts.
The case studies are merely aimed at evaluating whether the criteria
of the Assembly’s definition of political prisoners are met, in
order to underpin a legally well-grounded, objective but nevertheless
political assessment of these cases, in line with the established
practice of the Parliamentary Assembly.
45. I can only join the President of the Assembly
in
welcoming the presidential pardon granted to Mr Lutsenko and at
the same time recall that Mr Lutsenko has never asked for a pardon,
but for justice. He is therefore pursuing his application to the
European Court of Human Rights in order to obtain full rehabilitation. Also,
as President Mignon rightly pointed out, the case of Ms Tymoshenko
urgently requires a solution, too. Still, I interpret this presidential
pardon as a signal of good will of the Ukrainian authorities, and
I sincerely hope that it will be followed up by other steps.
4.1. The case of former
Ukrainian Prime Minister Yulia Tymoshenko
4.1.1. Ms Tymoshenko as
a key rival of President Yanukovich
46. Ms Tymoshenko is a key leader of the opposition in
Ukraine. She was a prominent figure in the “Orange Revolution” in
2004, which erupted after Viktor Yanukovych was declared the winner
of an election marred by blatant vote-rigging. She had served as
Prime Minister under President Yushchenko, inter
alia between 2007 and 2010. In the 2010 presidential
election, she finished in second place, losing to Mr Yanukovych
by only 2.5% of the vote. Even in prison, she remains the President’s
main political rival, but she was prevented from participating in
the October 2012 parliamentary elections due to the criminal cases
against her.
4.1.2. The “gas contract
case” – an illegitimate criminalisation of political decision-making
47. Ms Tymoshenko was sentenced to a seven-year prison
term on the basis of vague abuse-of-office
charges
for having entered into an agreement with Russian Prime Minister
Putin on the resolution of the “gas crisis” which erupted in the
winter of 2008/2009.
48. The criminal charge against the former Prime Minister was
that the deal struck between her and Russian Prime Minister Putin
was financially disadvantageous to Ukraine and that it had not been
approved in writing beforehand by her cabinet. The political deal
between the two prime ministers, which was subsequently fleshed out
in detailed negotiations between Gazprom and Naftogas of Ukraine,
was reached in a climate of severe crisis, after Mr Putin had ordered
that gas supplies to Ukraine and through Ukraine to western Europe
be cut on 5 January 2009.
On
17 January 2009, Ms Tymoshenko, who was under intense pressure from
the European Union and key western European leaders to unblock the
situation, reached an agreement of principle with Mr Putin, in Moscow.
On 19 January, Naftogas and Gazprom signed the contract. On the
same day, Ms Tymoshenko’s cabinet held an extraordinary meeting
in her absence, discussing the gas deal but without taking a vote
on the agreement. At this meeting, First Deputy Prime Minister Turchinov
stated that there were no legal requirements to adopt any directives
and that the Prime Minister needed only political support. After Ms
Tymoshenko’s return, on 21 January, the cabinet confirmed the contracts,
and on 22 January, the flow of Russian gas to Ukraine and to western
Europe was fully restored. Ms Tymoshenko’s lawyers insist that there was
no legal requirement that such an agreement needed
prior cabinet approval, whilst the
prosecution argued that it did. Astonishingly, the fact that the
cabinet approved the deal two days later is not even mentioned in
the judgment.
49. The gas deal of January 2009 was and still is subject to lively
political debate. Even some of Ms Tymoshenko’s former political
allies contend that the former Prime Minister should never have
accepted such a high price and should have played “hardball” with
Mr Putin and with western European governments. They contend that
serious gas shortages in Ukraine could have been avoided until the
spring by using Ukraine’s own reserves. The issue played an important
role in the 2010 presidential campaign and may well have contributed
to Ms Tymoshenko’s narrow election loss. The fact is that Russia
did agree to reduce the price of gas after Mr Yanukovich came to
power, but only in exchange for far-reaching political concessions,
such as the long-term extension of the lease of bases in Crimea
for the Russian Black Sea fleet.
50. In my view, the political choice made by Ms Tymoshenko to
strike the gas deal with Russia even at a high price in order to
avert a serious political and humanitarian crisis was hers to make,
as Prime Minister. She was held to account politically, in the subsequent
election. It was never even alleged that she derived any personal
financial gain from this deal, nor did the deal interfere with fundamental
rights of individual citizens. In light of the above “guiding principles”,
she should therefore not have been prosecuted criminally for her
political decision.
4.1.3. Presumed procedural
violations
51. The prosecution and trial in the gas case were also
marred by a number of presumptive procedural violations. The presumption
of innocence (Article 6.2 of the Convention) was apparently violated
by numerous public statements by senior political and judicial personalities
finding her guilty before the end of her trial, including the President,
Prime Minister, Vice-Prime Minister, the Prosecutor General, his
First Deputy and by members of the Verkhovna Rada belonging to the
ruling party. President Yanukovich actually suggested that Ms Tymoshenko
should “prove her innocence in court”. Deputy Prosecutor General
Kuzmin, a senior member of the High Council of Justice (the judges’
and prosecutors’ highest disciplinary authority), publicly stated
that Ms Tymoshenko was guilty of all the crimes she had been convicted
of in first instance – a few days before the appeal hearing in the
case.
52. The independence and impartiality of the courts which heard
her case is also doubtful.
The
young judge in charge of the trial in the first instance had only
two years’ experience and was still in his probationary period.
He systematically refused procedural requests of Ms Tymoshenko’s
lawyers, including requests for postponements of hearings due to
her health problems, and requests for taking evidence, including
hearing witnesses put forward by the defence. Reportedly, he even
rejected the request to add to the case file such a fundamental
document as the litigious gas contract itself, the main
corpus delicti, without giving any
reasons. The judge also placed Ms Tymoshenko in pretrial detention
on apparently spurious grounds (because Ms Tymoshenko once arrived
seven minutes late for a court hearing). According to the trial
observers of the Danish Helsinki Committee, the judge generally
lacked self-assurance and authority in dealing with the some provocative
remarks by Ms Tymoshenko in the courtroom.
53. It is also not clear whether the selection of the judge in
this case and in the related cases against Ms Tymoshenko’s political
allies had respected the automated random case assignment procedure.
The Danish Helsinki Committee monitors point out that the Pechersky
District Court, which is competent to hear most of the cases against
former government members, has 35 judges, whilst the cases against
opposition politicians were concentrated amongst a small number
of judges most of whom were still in their probation periods, to
the point that “one can wonder that the judges selected for such
spectacular and politically loaded cases are so young, inexperienced,
exposed and vulnerable to political pressure”.
54. The fairness of the trial was also put into question by failures
of the court to provide adequate time and facilities for the preparation
of the defence within the meaning of Article 6.3.
b to
d.
The case files in the gas contract case alone consisted of about
4 300 pages of files, including 20 expert assessments, 360 hours
of statements recorded on audio tapes and about 100 transcripts
of witness testimony. Ms Tymoshenko and her lawyer had only 15 working
days to study this material, in May 2011, and they were only given
time to copy 10 out of 15 files. The court refused all the applications
of the defence for additional time to study the case file. During
the trial, Ms Tymoshenko was in court almost daily, for unusually
long sessions, which severely limited the time at her disposal to
consult with her lawyers before or between court sessions. Conversations
with her lawyer were further hampered by the obtrusive presence
of police guards, a problem which the trial judge also refused to
address. Last but not least, her right to effective assistance by
a lawyer was restricted in different ways, including by the revocation
of Mr Vlasenko’s power of attorney by the trial judge on 18 July
2011. Consequently, a number of hearings took place in the absence
of any legal representative, including four full days of hearings
during which the court interrogated 25 of a total of 40 witnesses
of the prosecution.
55. The right to a public hearing (Article 6.1 of the Convention)
was apparently also infringed by the choice of unusually small courtrooms,
given the strong public interest in the proceedings, which led to
the admission of only small numbers of allegedly “selected” journalists.
4.1.4. Different forms
of pressure on Ms Tymoshenko and her lawyers and political allies
56. Ms Tymoshenko was reportedly also put under intense
physical and psychological pressure during pretrial detention and
beyond. She complained about serious health problems involving intense
pain. These were confirmed by independent doctors from the Charité
hospital in Berlin, who were allowed to examine her only after some
delay and numerous interventions by the international community.
In her cell, she is permanently filmed by several cameras, and a
number of videos and conversations have been published on the Internet.
One apparently orchestrated
leak concerned a purported telephone conversation of Ms Tymoshenko
with her husband, in which she – again, purportedly – grossly insulted
the Ukrainian judge at the European Court of Human Rights. Ms Tymoshenko
denounced this publication as a fabrication designed to influence
the Strasbourg Court.
Mr Lisitskov, the Head of the Ukrainian
State Penitentiary Service, told me during our meeting in Kiev that
388 medical check-ups had been “arranged” for Ms Tymoshenko (of
which she had rejected 295). In my view, this is more akin to harassment
than to serious medical care.
57. Ms Tymoshenko’s political allies and lawyers were exposed
to serious pressure, too. After the appointment of Viktor Pshonka
as new Prosecutor General in November 2010, following which he declared himself
publicly as a “member of the President’s team”,
12
senior members of Ms Tymoshenko’s government were prosecuted: four
ministers,
five
deputy ministers and three heads of State agencies. The case of
the former Interior Minister, Yuri Lutsenko, will be treated in
some more detail in the second case study below. In his case, the
European Court of Human Rights has already found numerous violations
of the Convention, including that of Article 18.
The cases of Valeriy Ivashchenko, former
acting Minister of Defence in the Tymoshenko government, and Mr
Yevhen Korniychuk, her First Deputy Minister of Justice, have also
received considerable international attention due to the similarity
both of the vague “abuse of office” charges, mostly criminalising
normal political or administrative decision-making and of the procedural
violations observed in the cases against them.
58. Ms Tymoshenko’s principal legal adviser and (until recently)
member of the Verkhovna Rada, Serhiy Vlasenko, is apparently also
a victim of well co-ordinated judicial harassment. I talked to him
at length during my fact-finding visit to Kiev in February 2013,
and I am deeply worried about the way he is being treated. Between
June and July 2012, he was assaulted three times, a green spirit-based
chemical being poured in his eyes. Reportedly, a female suspect
was identified after the first assault. But the Prime Minister of
Ukraine, Mr Mykola Azarov, publicly announced that “she should not
be afraid because no one will be able to touch her”.
The statement was followed by two
more assaults. Whilst two suspects have by now been identified, who
were questioned by the police and admitted the deeds, the cases
have still not been transferred to court.
59. In addition, in January 2013, Mr Vlasenko was stopped by border
guards when he tried to board a plane in order to participate in
the Parliamentary Assembly’s part-session. He was told that he could
not leave the country because he had not paid up maintenance to
his ex-wife. Mr Vlasenko told me that he had indeed paid up his
debt and submitted proof of payment to the civil tribunal, which
had simply refused to take this information into account. He now
feared that his ex-wife’s accusations of conjugal violence, which
he assured me were unfounded, would shortly be used as a pretext
to arrest him, after he was stripped of his parliamentary mandate.
60. Two weeks after my visit, on 6 March 2013, the High Administrative
Court indeed cancelled Mr Vlasenko’s mandate as a member of parliament.
Both the procedure followed and the reasons given are open to serious
criticism, which I expressed jointly with the co-rapporteurs of
the Monitoring Committee for Ukraine, Ms de Pourbaix-Lundin and
Ms Reps, in a statement published the following day.
The parliamentary committee competent
to seize the High Administrative Court had failed to take the decision
in a committee meeting, as the rules foresee, but based its decision
on signatures collected from absent members and without allowing
Mr Vlasenko to be heard. The grounds on which destitution was based
were purely formal: a delay in the suspension of Mr Vlasenko’s Bar
membership following his election as a deputy. In substance, Mr
Vlasenko assured me that he had no longer practised as a lawyer
since his election to parliament. He had merely continued to provide
advice to Yulia Tymoshenko as a “legal expert” – a function that
Ukrainian law distinguishes clearly from the practice of law by
a member of the Bar. Whatever the legal technicalities may be, which
are not for me to decide on, it is clear that Mr Vlasenko’s case
is at the very least one of selective justice: I was told that several
other parliamentarians who belong to the ruling “Party of the Regions”
remain active members of the Bar, and their status as parliamentarians
is not put into question.
61. On 18 March 2013, the Central Electoral Commission (CEC) declared
another person elected in Mr Vlasenko’s place and registered him
as a member of the Verkhovna Rada, despite protests from Mr Vlasenko’s
party, which had seized the Ukrainian Constitutional Court as well
as the European Court of Human Rights.
Meanwhile, the Deputy
Chair of the CEC reportedly announced that Ukraine could not possibly
execute a possible future judgment of the European Court of Human
Rights in favour of Mr Vlasenko because Ukrainian legislation does
not foresee a procedure for reinstatement.
I consider such a statement as unacceptable.
If the Strasbourg Court were to find that the revocation of Mr Vlasenko’s
mandate violated the European Convention on Human Rights, Ukraine
would have to execute this judgment, by ending the violation – which
cannot be achieved in any other way than by reinstating him in the
mandate he had received from the voters.
If it is
necessary to change the law to execute the Court’s judgment, so
be it.
62. Additional information on pressure also against Hryhoriy Nemyria,
another political ally of Yulia Tymoshenko, and Eugenia Tymoshenko,
her daughter, was recently transmitted to the European Court of Human
Rights.
4.1.5. New charges against
Yulia Tymoshenko
63. When the Ukrainian authorities began to realise that
the original charge – the “gas case” – may turn out to be untenable
in the international arena, new cases were launched against Yulia
Tymoshenko and old cases reopened. They were first announced by
senior officials in the media and are now making their way through the
judicial system.
64. These new charges intend to take advantage of the fact that
Ms Tymoshenko’s rapid rise in the 1990s to the status of billionaire
“gas princess” has left a somewhat “sulfurous” aftertaste in public
opinion. Reportedly,
her association at the time
with former Prime Minister Lasarenko, who has in the meantime been convicted
in the United States of America of large-scale embezzlement and
money laundering, enabled her to effectively exercise a stranglehold
on Ukrainian gas supplies through United Energy Systems of Ukraine (UESU)
acting as a privileged “intermediary”. But she abandoned her business
activities and entered politics in December 1996, when she was elected
as a member of parliament. As from January 1997, she gave up her job
as an executive director of the UESU and the company was dismantled
less than two years later. Ms Tymoshenko’s past as a business woman
must be assessed in the context of the “Wild East” decade following the
disintegration of the former Soviet Union. During this period, future
“oligarchs” throughout the region succeeded in amassing vast riches
by taking advantage of the legal vacuum arising from the collapse
of the Soviet system. It is notable that among those oligarchs,
only those who later turned against the new political elite who
came to power after the initial phase of anarchy were singled out
for prosecution. This is true, in my view, for Mikhail Khodorkovsky,
in Russia, and also for Yulia Tymoshenko, who during her political
career implemented economic reforms threatening the interests of
Ukrainian oligarchs who were and still are in league with the current
authorities.
Prima facie,
I consider charges brought selectively against Ms Tymoshenko by these
same authorities after almost 20 years as suspect. They must be
scrutinised with special care in light of European standards on
the rule of law and human rights protection.
4.1.5.1. Murder charges
(assassination of Yevhen Shcherban)
65. The charges concerning the murder, at Donetsk Airport
on 3 November 1996, of Yevhen Shcherban, allege that Ms Tymoshenko
commissioned the murder of this businessman and politician, through
a company called Somolli, and a chain of additional intermediaries,
which ultimately led to a Russian gangster named Vadim Bolotsky.
Bolotsky was convicted in April 2003 by a court of carrying out
the murder. He had testified that the killings were carried out
by order of a gangster from the Donetsk region, Yevhen Kushnir.
Kushnir had fled Ukraine after the murder of Shcherban. Upon his
return two years later, he was shot in his car near Donetsk. He
survived, only to be arrested on extortion charges, and died in
the Donetsk pretrial detention centre, allegedly from an allergic
reaction to medication.
66. In September 2012, Mr Vlasenko somewhat provocatively called
for the interrogation, concerning the Shcherban murder, of current
Prosecutor General Pshonka, who at the time of Mr Kushnir’s death
in pretrial detention was the Donetsk oblast prosecutor, and of
current President Yanukovich, who according to him took over all
the political power belonging to Mr Shcherban in the Donetsk region.
Mr Vlasenko also wondered why it was never investigated how the
killers of Mr Shcherban, dressed as airport staff, were able to
freely approach the airplane and flee the scene of the crime in
a car driven by a man wearing a police uniform.
67. The allegations concerning the Shcherban murder now launched
against Ms Tymoshenko are essentially based on hearsay by long-deceased
criminals transmitted by another notorious gangster. The testimony
presented so far seems to violate all the normal evidentiary rules,
despite the fact that the Ukrainian code of criminal procedure had
recently been amended to admit hearsay evidence in limited circumstances. Reportedly,
a witness heard at a court sitting on 14 February 2013 – in the
absence of the accused, Ms Tymoshenko, despite her requests to be
allowed to participate –
based
his testimony solely on hearsay, obtained from persons killed 10
to 12 years earlier. Also, the testimony reportedly differed from
that given by the same witness between 1999 and 2002 and during
an interrogation conducted between 4 and 7 May 2012. The lack of
credibility of this testimony was widely exposed in the Ukrainian
media, which reported that the (dead) witness claims to have remembered
what perfume Ms Tymoshenko had worn at the time in question – almost
20 years ago – and which luxury brand of clothes she had worn. The
point: the brand in question (Louis Vuitton) only put women’s clothes
on the market years after the “witness” claimed to have seen Ms Tymoshenko
wearing them. Other prosecution witnesses also seem to rely mainly
on hearsay. There are also serious doubts as to their credibility
as they may have testified under pressure from the authorities in various
forms. It is also hard to understand why the prosecution insisted
on hearing all witnesses in open hearings already during the pretrial
stage. The new Code of Criminal Procedure allows this only exceptionally when
there is a risk that the witness may not be able to appear in court
during the trial. But the prosecution did not provide any reasons
for hearing the pretrial testimony in open court. Its main purpose
seems to have been to smear Ms Tymoshenko in public.
4.1.5.2. New charges for
attempted embezzlement by the UESU
68. The second set of new charges against Ms Tymoshenko
for attempted embezzlement by the UESU are based on a State guarantee
allegedly obtained by the UESU with the help of then Prime Minister
Lasarenko in late 1996 in order to help the UESU obtain a contract
for Russian gas deliveries for the year 1997. The alleged crime
consists in an attempt to embezzle State property by unlawful reimbursement
by the State budget of the UESU’s debt vis-à-vis Russia.
The
strongly disputed question whether a valid guarantee was ever given should
be moot, because the prosecution for these acts should be barred
by the statute of limitations.
The limitation
period applicable at the time of the alleged criminal actions was
10 years, which seems to be undisputed. Under Ukrainian law, the
clock begins to run anew (even for the old crime) when the suspect commits
a new serious crime.
The
validity of this rule under European standards seems to be at least doubtful,
given the strong value attached to legal certainty in the Convention.
But the alleged facts would be prescribed even if one were to consider
the internationally discredited “gas contract case” relating to
events in 2009 as a new, serious crime capable of restarting the
clock under the doubtful rule described above. The alleged guarantee
was in fact obtained in 1996, but it concerned only the payment
of gas deliveries in 1997 and was limited in time from 1 January
1997 to 31 January 1998.
In order
to justify that the
actus reus of
the (attempted) embezzlement was nevertheless after 1999, the prosecution
argues that the crime was attempted only when the UESU (which, we
should not forget, Ms Tymoshenko had left at the end of 1996
)
ceased payments in 2000. This is really quite far-fetched by normal
standards of interpretation of criminal law.
But as it is the view of the prosecution,
and the courts have a conviction rate approaching 100%, the outcome
is unfortunately rather predictable.
4.1.5.3. Reopening of tax
fraud and money laundering cases closed in 2005
69. Similarly, the reopening of old charges for tax fraud
levelled against Ms Tymoshenko does not convince me: these charges
relate to value added tax fraud allegedly committed by the UESU
between 1997 and 1999. At that time, Ms Tymoshenko no longer worked
for this company. This fact is not even disputed by the prosecution,
which is reduced to alleging that Ms Tymoshenko had given “oral
instructions” to the UESU’s accountants pushing them to commit such
a fraud – but without offering any evidence for this assertion.
Lack of evidence was in fact cited as the reason for the closure
of the same investigation in 2005, which was at the time confirmed
by the Ukrainian Supreme Court after several years of litigation
in the lower courts.
Whilst
the
ne bis in idem rule
directly applies only
to new prosecutions after a conviction or an acquittal by a court,
the principles of legal certainty and non-discrimination as well
as Article 18 of the Convention require in my view that a case closed
by the prosecution for lack of evidence can only be reopened for
a legitimate purpose, for example new evidence, and not as part
of a politically motivated campaign. The reopening of this case
after another eight years, without there being any new facts, in
the well-known political context, smacks of abuse.
Also,
according to an analysis by the Danish Helsinki Committee monitors,
these charges, too, are time-barred, even if one were to accept
that the 2009 “gas contract case” is another serious crime capable
of re-starting the clock of the statute of limitations.
4.1.6. Conclusion: Yulia
Tymoshenko as a presumed political prisoner under Assembly Resolution 1900 (2012)
70. The analysis of key issues as presented above, in
light of the criteria for the definition of political prisoners
in
Resolution 1900 (2012), leads to a fairly compelling result, namely that Ms
Tymoshenko must be recognised as a presumed political prisoner:
1) Ms Tymoshenko is a key opposition leader and main rival
of the current President. She was sentenced to a particularly harsh
seven-year prison term on the basis of vague abuse-of-office charges.
2) These charges effectively criminalised the political decision
she had taken as Prime Minister in favour of an agreement with Russia
to end an acute crisis threatening the provision of gas to Ukraine
and other European countries.
3) The prosecution and trial were marred by numerous presumptive
procedural violations.
4) Ms Tymoshenko was also put under intense physical and psychological
pressure, both during pretrial detention and in post-conviction
custody. Her family, lawyers and political allies, in particular
Mr Vlasenko, have also suffered from a co-ordinated campaign of
harassment and persecution by the authorities.
5) The legally and factually dubious nature of the new charges
brought against her further underpins their political motivation.
4.2. The case of former
Ukrainian Interior Minister Yuri Lutsenko
4.2.1. The political context
of the prosecution of Mr Lutsenko
71. Mr Lutsenko is also a popular opposition leader.
He was a leading member of the Ukrainian Socialist Party between
1991 and 2006. In 2006, he founded the “People’s Self Defence Party”,
which became part of the “Our Ukraine – People’s Union” bloc. This
grouping came in third at the elections in 2007 and formed a parliamentary
majority together with Yulia Tymoshenko’s party. Mr Lutsenko’s political
action as a reformist Minister of the Interior (2005-2006 and again
2007-2010, under Prime Minister Yulia Tymoshenko), has earned him
the respect of the progressive forces in Ukraine and of the international
community. I should like to stress, in particular, his excellent
co-operation with the Assembly’s rapporteur who investigated the
emblematic murder of the journalist Georgiy Gongadze, Ms Sabine
Leutheusser-Schnarrenberger (Germany, ALDE), which contributed to
the dismantling of a death squad in the Interior Ministry and ultimately
to the conviction for murder of its members and ringleaders.
In
the long and intensive conversation which I had with him in prison during
my fact-finding visit in February 2013, Mr Lutsenko impressed me
by his charisma, sincerity and sense of humour, and by his keen
patriotism, even against his own personal interests.
He does not ask for
mercy – i.e. to be “pardoned” – but for justice. I cannot help thinking
that Ukraine can simply not afford to keep such a man behind bars
– he should be free to contribute to making his country a better
place.
72. Obviously, Mr Lutsenko has also made dangerous enemies by
his political action as Interior Minister. In addition to investigating
criminal activities of persons well connected to the current authorities,
he had reportedly “crossed a line” in a live television talk show
shortly after he was ousted from his ministerial post. He was apparently
provoked by a talk show host reputed to be close to Mr Yanukovich,
who asked him whether his son, who had briefly been arrested in
a state of inebriation, had “inherited” his father’s alcohol problem. Mr Lutsenko
retaliated that his own son’s transgression was harmless against
that of Mr Yanukovich’s son, who had been dealing in drugs, as he
had learnt as Interior Minister. Many in Kiev consider this public
incident as a “trigger” for Mr Lutsenko’s subsequent judicial tribulations.
4.2.2. The judgment of
the European Court of Human Rights
73. The European Court of Human Rights recently found
that Mr Lutsenko’s arrest and detention had violated Article 18
of the Convention, that is to say it pursued another purpose than
that for which arrest and detention are prescribed by law.
Such a finding, which, when related to
arrest and detention of a political figure, is akin to a finding
of politically motivated abuse of the criminal justice system, is
extremely rare, since the Strasbourg Court has set a very high threshold
of evidence in its judgment on the first application lodged by Mikhail
Khodorkovsky.
74. The fact that this violation was found in Mr Lutsenko’s case
sends a very strong signal to the Ukrainian authorities. I pointed
this out in my meeting with the Minister of Justice, in the presence
of the Ukrainian government agent before the Court, who is also
responsible for overseeing the execution of the Court’s judgments
against his country. The execution of this judgment cannot be limited
to paying out the symbolic compensation fixed by the Court for non-pecuniary
damage. Mr Lutsenko, whose arrest and detention were found to be
in violation of the Convention, must in fact be released without
further delay, and appropriate general measures should be taken
in addition to ensure that the judicial machinery can no longer
be abused for political purposes in such a way.
4.2.3. The charges against
M. Lutsenko
75. The law enforcement bodies set up a special task
force, including 14 investigators for serious crimes, in order to
find grounds to prosecute him. It is very much to Mr Lutsenko’s
credit that all these 14 investigators were able to come up with
are the following three petty charges:
1) not having cancelled the traditional National Police Day
celebration, thus purportedly misappropriating the funds paid to
another State body for the rent of the venue of the Ministry’s reception
on this occasion;
2) not having prevented the Ministry’s personnel administration
from recruiting his driver at a policeman’s pay-grade, in line with
the usual practice in this Ministry, and from helping the driver
obtain the use of a service flat in Kiev;
3) having allegedly signed an executive order while officially
on leave.
Even if these charges had been proven in a fair trial – which
I believe they were not – they could not have justified any prison
sentence, let alone four years.
76. Once again, these charges were based on the wide
and unclearly worded “abuse of office” provisions in the Ukrainian
criminal code, which violate the “guiding principles” on separating
political and criminal responsibility developed above.
77. And once again, these charges criminalise long-standing practices,
for which neither Mr Lutsenko’s predecessors nor his successor were
ever prosecuted. In this respect, the term of “selective justice”
would be appropriate if the deeds in question could at all be seen
as criminal.
4.2.3.1. Non-cancellation
of a National Police Day celebration
78. Regarding the non-cancellation of the National Police
Day celebration, it is more than doubtful that Prime Minister Yulia
Tymoshenko’s general instruction to all her ministers to ban “unplanned
celebrations” was even intended to nullify the Presidential Decree
on the basis of which the National Police Day was celebrated. In
any case, such a general instruction from the Prime Minister could
not override the specific Presidential decree.
79. Interestingly, the Prime Minister attended the reception purportedly
contravening her instructions, and so did, as Mr Lutsenko clearly
recalls, the Minister of Justice and 11 other ministers as well
as the Prosecutor General and his first deputy.
The
top prosecutors also attended the subsequent reception at a restaurant, which
Mr Lutsenko paid for out of his own pocket.
80. Mr Lutsenko was quite emotional about the fact that whilst
he could not offer “his” policemen a decent salary, he found that
they deserved at least some recognition and honouring, once a year.
On this occasion, he had for example awarded medals to the widows
of the 16 policemen killed in office during the previous year. In
his view, the only reason for this charge to be launched at all
was the perceived need to demonstrate a high amount of “damage”
caused to the State, in order to justify a prison sentence. Ironically,
the rent of 600 000 Hryvnias (about 56 000 euros) paid for the venue
of the celebration was paid by the Interior Ministry to the Ukrainian
Presidential Administration, which owns the building in question.
The funds were thus paid by one public, budget-funded purse into
another.
4.2.3.2. Favourable treatment
of the minister’s driver
81. The second charge at first sight seems more justifiable
as it smacks of favouritism or nepotism. But upon closer inspection,
it is equally unfair in that the former minister is held criminally
responsible for administrative acts performed by the competent departments
of his ministry in which he did not intervene at all, and which correspond
to the long-standing practice of this department vis-à-vis the personal
drivers of ministers.
82. It is generally accepted in Ukraine that the driver of a person
holding the exposed position of Minister of the Interior must enjoy
the minister’s trust and is therefore chosen by him or her personally.
As the driver is aware of the minister’s whereabouts and overhears
conversations in the car, he must also be security-vetted and bound
to official secrecy. This is the reason why, in line with the practice
followed previously and subsequently,
the minister’s
driver was recruited not at the pay-grade of an (ordinary) driver,
but at the slightly higher grade of a policeman. This was not based
on an instruction given by the minister, but done automatically by
the administrative division in charge of personnel matters. According
to Mr Lutsenko, this was confirmed during the trial by the ministry’s
head of human resources.
83. Similarly, drivers and other low-grade employees of the Ministry
recruited from outside of Kiev are generally granted the use of
service flats, as they cannot afford to pay Kiev market rents. Mr
Lutsenko’s driver was granted the same advantage: the temporary
use (not ownership) of a small apartment in a building whose construction
had been funded by the Ministry, whilst it was administered by the
municipality. Again, the minister had never been a member of the
committee allocating these apartments, nor had he given any instructions
to the Ministry’s representative on this committee. The allocation
of the service flat followed the normal procedure.
4.2.3.3. Illegal executive
order given whilst on leave
84. The third charge appears to be particularly bizarre:
whilst the actual content of the order given by the minister was
not in dispute, he was apparently prosecuted for allegedly signing
it while he was officially on leave. In fact, according to the defence,
the date appearing on the written order had been visibly manipulated. Mr
Lutsenko said that he could not possibly have signed the order on
that date because he was away from Ukraine on that day, in the United
Kingdom.
85. I must say that I find it most unusual to even attempt to
criminalise the fact of working whilst on leave. As far as I am
concerned, I am doing this quite a lot, and I would be in great
difficulties with my voters if I did not!
4.2.4. Procedural violations
86. I do not intend to repeat the findings of the European
Court of Human Rights in this respect, regarding in particular the
abusive arrest and detention during the trial, imposed basically
as a sanction for not having admitted his guilt right away.
87. Mr Lutsenko pointed out during our meeting that of about 150
witnesses named by the prosecution, the court had heard 48, 47 of
whom in fact testified in his favour. As to the others, the court
did not hear them but simply used the testimony they had given before
the prosecutor. This would be a clear fair-trial violation (principle
of the immediacy of the evidence-taking). Later, 8 or 10
of
those not heard in the courtroom retracted their testimony, stating
that they had been pressured. According to Mr Lutsenko, many others
would not have dared to lie to his face in the courtroom, had they
been called to testify before the court. According to Mr Lutsenko,
the court also refused to hear any of the 15 to 17 witnesses named
by the defence.
88. Also, his defence attorney, Mr Moskal, was excluded from the
trial because the prosecution claimed that they wanted to hear him
as a witness. They never did so, but they did succeed in eliminating
him as Mr Lutsenko’s lawyer.
89. The impartiality and independence of judge Serhiy Vovk, who
heard Mr Lutsenko’s case, is put into doubt by the fact that during
Mr Lutsenko’s term of office, the Ministry of Interior had initiated
a criminal investigation against Mr Vovk.
Whilst
the case was reportedly closed in February 2010, Mr Vovk might still
have been at risk of the case being reopened by the prosecution.
These circumstances, as well as the particularly obvious procedural
violations in this case, raise serious doubts both about the impartiality
and the independence of the court which heard Mr Lutsenko’s case,
as does the particularly harsh, disproportionate sentence pronounced against
him.
4.2.5. Physical and psychological
pressure
90. Mr Lutsenko did not complain much about his health
during our meeting. He even joked that the frugal prison food and
total absence of alcohol from his diet might even help his liver.
But I could not help noticing that he was quite worried about his
health – he had after all been diagnosed with early stages of liver
cirrhosis and had undergone surgery since his arrest for ulcers
and cysts in his intestines. He was only informed belatedly about
some of the diseases he was diagnosed with, and is visibly worried
that his state of health may be more fragile than would appear.
91. The authorities missed an excellent chance to release Mr Lutsenko
without losing face, on medical grounds, when the appeals instance
refused such a release in February 2013, arguing that only the final
(lethal) stages of liver cirrhosis appear in the list of grounds
for early release on medical grounds.
4.2.6. Conclusion: Yuri
Lutsenko as a former presumed political prisoner
92. The analysis of key issues as presented above, in
light of the criteria for the definition of political prisoners
in Assembly
Resolution
1900 (2012), leads to an equally compelling result as in the case
of Ms Tymoshenko, namely that Mr Lutsenko must be recognised as
a presumed political prisoner:
1) Mr Lutsenko is also a popular opposition leader and key
ally of Ms Tymoshenko. The European Court of Human Rights recently
found that his arrest and detention had violated Article 18 of the
Convention, namely that it pursued another purpose than that for
which arrest and detention are prescribed by law.
2) The special task force set up to investigate Mr Lutsenko’s
action as Interior Minister came up with three petty charges aimed
at criminalising long-standing practices for which neither Mr Lutsenko’s
predecessor nor his successor were prosecuted.
3) These charges could not justify a custodial sentence even
if they had been proven in a fair trial, which Mr Lutsenko was in
fact denied.
4) Overly zealous and selective prosecution, the abuse of
pretrial detention and a disproportionate sentence indicate the
existence of political motivation with respect to his case.
5. The case of former
Icelandic Prime Minister Geir Haarde
93. As I had already indicated in my information memorandum
on the situation in Iceland,
the case of Mr Geir Haarde
cannot, in all fairness, be compared with those of Ms Tymoshenko
and Mr Lutsenko. There can be no question of him being a “presumed
political prisoner” – he was never even arrested, and he was acquitted
of the main charge pertaining to his political decision-making,
namely the alleged “failure to act” in order to prevent the Icelandic
banking crisis.
94. That said, the fact of Mr Haarde’s selective prosecution,
which was decided along party-political lines by a new parliamentary
majority, the over-zealousness of the special prosecutor pinning
him down for a formal violation which, in addition, corresponded
to a long-standing practice dating back to before the independence of
Iceland, and several other issues, which I have described in more
detail in the above-mentioned information memorandum
do make this case a violation,
in my opinion, of the “guiding principles” on keeping political
and criminal responsibility separate, as developed above in section
3.