AMBASSADOR'S BLOG - WHY EUROPEAN GOVERNMENTS THINK OPPOSITION TRIALS ARE FLAWED

18.11.11




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.

Leigh Turner



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