Ukraine violated rights of ex-prime minister Tymoshenko – ECHR
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MOSCOW, April 30 (RAPSI) – The European Court of Human Rights (ECHR) held unanimously Tuesday that the rights of former prime minister Yulia Tymoshenko to liberty and security, a speedy review of the lawfulness of detention, and compensation for unlawful detention, had been violated in connection with Tymoshenko’s arrest and detention for abuse of power in Ukraine.
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At the same time, the court held by majority that Tymoshenko’s right to protection from inhuman or degrading treatment was not violated as advanced in her application to the ECHR.
According to the judgment, Tymoshenko served as prime minister between January and September 2005, and between December 2007 and March 2010.
In April 2011, criminal proceedings were instituted against Tymoshenko based on her role in ordering the signature of gas supply contracts with Russia in 2009.
In October 2011, Tymoshenko was convicted and sentenced to seven years in prison. On August 5, she was placed in the pre-trial detention facility in Kyiv (SIZO no. 13), where she remained until 30 December 2011. She was then transferred to the Kachanivska Correctional Colony in Kharkiv to serve her prison sentence.
She turned to the ECHR on August 2011, claiming that her detention facilities had been inadequate and had lacked medical care appropriate to accommodate her various health problems, including – according to the judgment – chronic gastroenterological diseases and severe food allergies.
She further alleged that after the Court asked Ukrainian authorities to ensure proper medical treatment for Tymoshenko, she was transferred to the hospital against her will, causing her to sustain injuries that were not properly investigated. She added that while in the hospital, she was subjected to round-the-clock surveillance.
Finally, she claimed that her detention had been arbitrary and had been motivated by ulterior interests, and that she had lacked any enforceable right to compensation.
Specifically, she claimed that her rights were violated under the following sections of the European Convention on Human Rights (Convention): Article 3, which prohibits degrading treatment or punishment; Article 5, which ensures the right to liberty and security; Article 8, which ensures the right to private life; and Article 18, which imposes limits on rights restrictions.
The ECHR had decided on 14 December 2011 to give priority to the application filed on behalf of Tymoshenko in view of the serious and sensitive nature of the allegations raised, alerting Ukrainian authorities shortly thereafter that her medical treatment in an appropriate institutionalized setting should be ensured. In May 2012, the Court lifted the interim measure, satisfied that Tymoshenko was receiving adequate treatment.
The court held unanimously Tuesday that Tymoshenko’s pretrial detention had been arbitrary in violation of Article 5 of the Convention due to the fact that it was indefinite and unjustified: “from the detention order, as well as the prosecutor’s application for this measure and its factual context, the main justification for the applicant’s detention was her supposed hindering of the proceedings and contemptuous behaviour. This reason is not included in those which would justify deprivation of liberty under Article 5 § 1 (c) of the Convention.”
Furthermore, the court held that Tymoshenko had not been afforded a proper review of the legality of her pretrial detention in violation of Article 5 of the Convention, noting that in light of various seemingly legitimate efforts to secure her release, “the court dismissed all those requests without any indication of consideration having been given to any of these arguments, apparently treating them as irrelevant to the question of the lawfulness of the applicant’s pre-trial detention.”
The Court added that under Ukrainian law, there is no procedure for the gathering of compensation for unlawful deprivations of liberty findings by the European Court of Human Rights, thus constituting a violation of Article 5 of the Convention.
With regard to Article 18, according to the judgment: “The applicant complained that her detention had had ulterior motives. She complained, in particular, that her detention had been used by the authorities to exclude her from political life and to prevent her standing in the parliamentary elections of 28 October 2012.”
In light of its earlier finding that Tymoshenko’s detention had been primarily motivated by the aim to punish her due to a lack of respect for the trial court, the ECHR concluded, “the Court cannot but find that the restriction of the applicant’s liberty permitted under Article 5 § 1 (c) was applied not for the purpose of bringing her before a competent legal authority on reasonable suspicion of having committed an offence, but for other reasons.”
With regard to Tymoshenko’s claim of inhuman or degrading treatment with respect to her hospital transfer, the court held that her refusal to undergo a full forensic examination left the standard of proof necessary in assigning blame for her injuries unsatisfied. Thus, the majority of the ECHR concluded that no Article 3 violation had been established.
Meanwhile, Tymoshenko now faces accusations in two other cases, including а high-profile murder case. The head of the Aton financial corporation and former parliamentarian Yevhen Shcherban was shot and killed along with his wife and an airport employee at Donetsk Airport in 1996. The Prosecutor General's Office has alleged that former prime ministers Pavlo Lazarenko and Tymoshenko were behind the murder. Investigators claim that they paid $2.8 million for the assassination. If Tymoshenko is found guilty on this charge, she may face life in prison.
Tymoshenko stands accused as well of having been involved in financial fraud during the latter half of the 1990s, when she headed United Energy Systems of Ukraine (UESU). Trial in that case got underway in April 2012. But the hearings were postponed time and again due to her refusal to attend them for health reasons.