You're reading: Skadden report finds flaws in Tymoshenko trial

A U.S. consultant, hired by Ukraine’s government under controversial circumstances, has found that ex-Prime Minister Yulia Tymoshenko was deprived of many rights during last year’s criminal trial that sent her to prison for seven years.

These are some of the findings of Skadden, Arps, Slate, Meagher & Flom, a company that was contracted by the Ukrainian government to write a report assessing Tymoshenko’s case. The report, commissioned by the Justice Ministry this spring, was meant to give the government ammunition in the ongoing cases in the European Court for Human Rights in which Tymoshenko has disputed her conviction.

But the report may, instead, bolster the position of Tymoshenko, who alleges that she is the victim of political persecution designed to eliminate her as President Viktor Yanukovych’s main rival. Many in the West, as well as in Ukraine, also believe that her conviction for abuse of office in reaching a 2009 gas agreement with Russia is politically
motivated.

The consultant, whose findings were made public on Dec. 13, found that the court proceedings against Tymoshenko violated Western standards for a fair
trial. The firm found that, among other problems, the ex-premier was not given enough time to study her case, was sometimes deprived of adequate defense and was denied the right to call witnesses to properly represent her side.

In the European Court of Human Rights, Tymoshenko – in addition to alleging she was unfairly convicted – has always complained about lack of proper medical care
and abusive treatment in prison, including what she alleged was round-the-clock video surveillance of her everywhere, including when she showered and used the toilet.

The court is expected to rule on Tymoshenko’s first case early next year. Ukraine’s government, however, might not benefit from findings. The consultant’s findings will have no effect on the European court, since the proceedings are over in the first case, which looked into the legality of her arrest, said Valentyna Telychenko, who until recently represented Tymoshenko in her appeal to European authorities.

In her second case, which is yet to start, Tymoshenko’s claims her rights were violated during the trial. “Skadden’s report is more advantageous for Tymoshenko than for the government,” said Telychenko.

Ukraine’s Justice Ministry, however, said that the Skadden, Arps, Slate, Meagher & Flom report found no evidence that Tymoshenko’s case was politically motivated.

“This report …concludes as groundless Yulia Tymoshenko’s claims that her prosecution was politically motivated and states that she has provided no factual evidence that would be sufficient to overturn her conviction under European or American standards,” the ministry said in a statement on Dec. 13.

However, the report says that the consultants do not take a position on the political motivation fo the charges.

The actual text of the report says: “Based on our review of the record, we do not believe that Tymoshenko has provided specific evidence of political motivation that would be sufficient to overturn her conviction under American standards. The prosecution of a former head of government, unsuccessful presidential candidate, and leader
of the opposition merits close scrutiny in all respects. In this report, we do not opine about whether the prosecution was politically motivated or driven by an improper political objective—i.e., to remove her from political life in Ukraine in the future.”

In its 300-page document, which was posted on the ministry website, Skadden said that its job was to produce a report that “examines the events leading up to and including her prosecution and trial, and analyzes those events applying Western
standards of due process and the rule of law.”

Skadden said the report was based on “original documents, trial transcripts and interviews with those who participated in the process.” It said both the Ukrainian government, and Tymoshenko’s defense, gave the Skadden lawyers access to people and documents involved in the case.

Tymoshenko’s lawyer Serhiy Vlasenko told the Kyiv Post earlier this year that the Skadden team traveled to Kyiv several times this summer, meeting with key officials, witnesses who testified in the Ukrainian court, as well as witnesses who did not testify. All interviews were videotaped under an agreement with Tymoshenko’s defense, who helped to arrange some of the interviews. Skadden representatives also visited Tymoshenko in Kharkiv on June 28.

Skadden gives a list of 25 names of officials it interviewed during its trips to Ukraine, as well as pages and pages of documents, including the court judgment.

Skadden’s contract raised a giant controversy in Ukraine because the Justice Ministry was supposed to pay Skadden about $12,000 for their work in Ukraine to
avoid having to conduct a public tender, which is a requirement in cases where more public money is involved.

Jim Slattery, a former member of the U.S. House of Representatives, now works as Tymoshenko’s lobbyist in Washington D.C. said $12,000 would not come close to covering the wages and expenses of the Skadden lawyers. The report lists the names of eight lawyers who were involved in the case.

Representatives of Tymoshenko’s defense rang alarm bells, saying Skadden could have potentially had a side contract in this case, paid for by an interested party. Skadden’s lawyers did not reply to multiple requests for comments on the financial circumstances of the contract.

In its report, Skadden said one of the conditions for taking up the contract was complete independence.

“Skadden also made clear that its work product would reflect its professional opinion, rendered with total independence. At no time has any member of the Ministry of Justice attempted to exert undue influence on the Skadden team,” the report said.

Some of the report’s findings support Tymoshenko’s claims in the European Court of Human Rights. Skadden agrees that she had inadequate time to prepare for
trials and was refused a jury trial.

Tymoshenko was sent to prison for her behavior before the trial ended, which Skadden said did not have “adequate justification or review.” She was deprived of her right for defense by counsel, as well as her constitutional right to trial by jury – although, in this, she was not treated any differently than other Ukrainian citizens.

Witnesses for defense failed to be interviewed during both the pre-trial investigation, and during the hearing of her case, which Skadden believes did not allow
Tymoshenko to present her case properly.

However, the report also said that Tymoshenko and her team failed to present evidence that the choice of the judge in her case was biased and inadequate and cited her
disrespectful behavior in court.

Highlights of Skadden findings

In favor of Tymoshenko:

Tymoshenko claimed she had insufficient time to review the 4,000-page case file; and she had insufficient time to prepare for trial. We believe that, looking at this case, most American trial courts would have given the defendant more time to prepare her defense.

Prior to trial, Tymoshenko requested to be tried in front of a jury. Her request was denied, and she was tried instead by a judge. Although Tymoshenko was not treated differently from other citizens, her right for jury trial is guaranteed by the Constitution, and implementation of jury trials would greatly contribute to the protection of liberty and to the promotion of fairness in Ukraine.

Under Western standards, we find that the decision to detain Tymoshenko for the entire balance of her trial and after the trial had concluded—until sentencing— without adequate justification or review raises concerns about whether she was inappropriately deprived of her liberty prior to her conviction.

Ukrainian law, as well as Western legal standards, requires that a defendant who
wishes to be represented by counsel during trial must be able to
exercise that right. Under Western standards, the continued
examination of witnesses without representation by counsel would
almost certainly be viewed as a violation of the right to assistance
of counsel.

Tymoshenko identified
a large number of witnesses that she asked to be interviewed during
the investigation and trial, but was refused. “Under Western
standards of fairness, we believe that the Court’s decision not to
call certain defense witnesses compromised Tymoshenko’s ability to
present a defense.”

Against Tymoshenko:

Tymoshenko claimed that the selection of judge for her trial was political, and that the judge did not have the competence and track record to take on
her case. In Skadden’s opinion, Tymoshenko failed to support her claim with evidence.

Throughout the trial, the defendant refused to acknowledge the court’s legitimacy and engaged in conduct that was disrespectful to the court.

Tymoshenko was ordered out of the courtroom during the trial on two occasions—July 6 and July 15, 2011. But the actions of the judge were lawful and
adequate.

“Based on our review of the record, we do not believe that Tymoshenko has provided specific evidence of political motivation that would be sufficient to overturn her conviction under American standards.”

Neutral:

Skadden refused to express an opinion on adequacy of charges.

“The parties dispute whether the facts found by the court establish Tymoshenko’s guilt regarding the offense as a matter of Ukrainian law. This issue of Ukrainian law—the
requirements necessary to satisfy the elements of the statutory offense—is beyond the scope of our assignment and beyond our expertise.”

Source: The Tymoshenko Case Report by Skadden, Arps, Slate, Meagher & Flom

Kyiv Post editor Katya Gorchinskaya can be reached at [email protected]