On Aug. 28, Yulia Tymoshenko and the nation of Ukraine will clash in the European Court for Human Rights in Strasbourg. The former prime minister is suing the government because she believes her rights – including to a fair trial — were violated in the course of a lengthy trial that sent her to prison for seven years.
Defendant Ukraine is collecting ammunition with the help of Skadden, Arps, Slate, Meagher & Flom LLP, an American law firm that was contracted by the Justice Ministry earlier this year.
The company was hired to look closer at Tymoshenko’s trial in Ukraine, and then to produce a report with its findings to be used in the European court. But even before the report is out, Skadden’s work in Ukraine is raising a lot of questions and criticism.
Skadden failed to respond to multiple requests for comments for this story.
Money issues
Possibly the biggest question about the contract is how much it’s going to cost the Ukrainian taxpayers and whether all financial details are being disclosed. During a parliamentary hearing on June 22, Justice Minister Oleksandr Lavrynovych told the lawmakers how much his ministry is paying for the research.
“The Justice Ministry, in strict adherence to the law of Ukraine, made an agreement with the world-famous company Skadden, worth less than Hr 100,000,” he said.
Olena Shustik, an opposition deputy, sent an inquiry to the ministry asking for more details. She received two official replies saying that Skadden’s services cannot and will not cost the budget more than Hr 95,000 (less than $12,000).
To sign a contract worth more money, the ministry would first have to conduct an open and competitive tender, which it did not. But that much money would normally not go very far with Skadden.
Last year, the Wall Street Journal reported, based on a court filing, that Gregory B. Craig, a former counsel to the Obama White House and the company’s Washington-based partner, is asking $1,065 per hour. This is the partner who leads the team of investigators in Ukraine, opposition members say.
Both lawyers who represent Tymoshenko in the European Court for Human Rights, Serhiy Vlasenko and Valentyna Telychenko, said an average charge by Skadden is $750 per hour.
Skadden’s representatives have visited Ukraine at least three times since the contract was signed on April 10, according to Vlasenko. In at least one of the cases, the team was made up of two partners and two associates, according to Tymoshenko’s lawyers.
Vlasenko said he suspected that the company might have more than one contract in Ukraine. But Nazar Kulchytskiy, the government’s agent before the European Court for Human Rights, in response to a written question by the Kyiv Post, said that only one contract has been signed by the government with Skadden in relation to Tymoshenko’s case in the European court.
Skadden’s lawyers came to Ukraine to talk to witnesses who testified in the Ukrainian court, as well as witnesses who did not testify, according to Tymoshenko’s team. All interviews were videotaped under an agreement with Tymoshenko’s defense lawyers, who helped to arrange some of the interviews.
Skadden representatives also visited Tymoshenko in Kharkiv on June 28, where she is currently undergoing treatment for spine hernia in a hospital. The initial agreement with her defense was that the interview was also to be recorded. But the penitentiary system did not approve the video recording. Skadden made notes of the meeting and sent them to Vlasenko on July 12.
In his written note, Kulchytskiy said that Ukraine is paying none of the expenses associated with the lawyers’ trips to Ukraine. “The agreement does not envisage reimbursement of transport or any other expenses by [Skadden],” he wrote.
This suggests that some of Skadden’s work may be done on a pro bono basis, says Vlasenko.
Skadden prides itself in doing pro bono work, saying it pledged to commit time equivalent to at least 3 percent of billable hours to such contracts. Skadden’s turnover last year was $2.17 billion, according to www.lawyrs.net, a specialized online publication.
However, the company’s website also clearly sets out types of cases handled on pro bono basis, involving “individuals and groups unable to afford legal services.”
The list contains 14 types of such cases, including battered women issues, unemployment cases, micro-entrepreneurs, political asylum issues, and the like. Helping governments defend their position in the European Court for Human Rights is, of course, not on the list.
Competence issues
Money aside, some critics say that Skadden has little competence to handle cases in Ukraine.
In minutes that followed Skadden’s visit to Tymoshenko on June 28 seen by Kyiv Post, the author writes: “We’re not experts in Ukrainian law.” The minutes were sent on July 12 from a Skadden email address.
Vlasenko says that despite that, as far as he knows, the company did not involve anyone with knowledge of the Ukrainian law to do their research and produce the report.
The Justice Ministry says that the company does not need narrow Ukraine competence to complete the contract. It said Skadden’s mandate is to study whether the principle of rule of law and best practices of the European Court were observed in Tymoshenko’s case.
“That’s why the duties of law company Skadden do not include the analysis of adherence by the state organs of Ukrainian laws in the case,” Kulchytskiy wrote.
However, his description of the mandates contradicts the initial description of the contract given by President Viktor Yanukovych in his public announcement on June 21. He said then the Skadden was to give a “legal assessment” of the Tymoshenko case.
The actual contract with the company was not made public, but Vlasenko says that he interprets it as a go-ahead to assess the court proceedings and court rulings, which is “absurd.”
“The state is hiring a law company to make a legal assessment of court rulings of the same state. So, who are they, judges of the judges?” he says. “The main purpose of any justice system is to be the impartial arbitrator for all.”
It’s also unclear how the Skadden report will be used. Vlasenko suspects that the government will use it partially to prove its point that Tymoshenko’s trial was fair and none of her rights were violated in the process – particularly if the report contains critical remarks.
Kulchytskiy’s did not clear this issue up in his response. “I am also informing you that the Ministry of Justice will publish the results of investigation,” he wrote. He did not add “in full.”
Kyiv Post editor Katya Gorchinksaya can be reached at [email protected]
