The recent promotion of Rodion Kireyev to acting deputy head of the Kyiv City Pechersk District Court on Feb. 14 comes less than 18 months after he sentenced former Prime Minister Yulia Tymoshenko to seven years in prison for brokering the 2009 gas deal with Russia.
In a recent investigation, TVi compared the biographies and career trajectory of previously obscure judges in prominent cases. They found that the judges have a lot in common. All are aged around 30 and all were appointed to the Pechersk District Court after President Viktor Yanukovych became president in February 2010. Furthermore, only one judge involved in trials against former government officials had completed the requisite five years before being granted tenured status as a judge.
It is worth noting that in October 2011, the Venice Commission in its recommendations on amendments to the law on the judicial system was quite unequivocal on this point: “During this first temporary appointment, judges have less room for independence from the political power, both executive and legislative. It should be ensured that judges in these temporary positions cannot be appointed to deal with major cases with strong political implications.” (para. 49).
The excuse for ignoring this recommendation was provided by presidential adviser Marina Stavnyjchuk and member of parliament Serhiy Kivalov. Both pointed to Ukraine’s randomized case assignment system which could not be bypassed.
Since Kireyev’s claim to notoriety is linked with just one case, albeit the most prominent, this is difficult to disprove. The purportedly random nature of the selection process becomes difficult to take seriously when the track records of certain other judges are also considered.
TVi reports that 30-year-old Oksana Tsarevych has issued five verdicts on opposition figures in two years. She was one the panel of judges – together with (presiding judge) Serhiy Vovk and Anna Medushevska – who sentenced Yuriy Lutsenko, the ex-interior minister, to four years in prison on Feb. 27. She recently also questioned one of the two witnesses who have so far appeared in the “pre-court examination” of allegations that Yulia Tymoshenko paid for the killing of lawmaker Yevhen Shcherban in 1996. Tsarevych has only been a judge since 2010 and before that, TVi reports, worked in a private firm linked to Andriy Portnov, the former legal adviser to Tymoshenko who switched to the Yanukovych administration.
Tsarevych’s colleague in the Pechersk District Court – Medushevska – was appointed judge in 2011. Not only was she involved in the first flawed trial of Lutsenko, but she passed sentence in the second trial, where virtually every witness denied that Lutsenko had broken the law. Medushevska ruled otherwise, sentencing him to two years in prison. She is now involved in the new Tymoshenko case.
In 2012, these two were joined by Viktor Kyshchuk, who rejected Lutsenko’s lawsuit over the actions of the Prosecutor General’s Office. Kyshchuk has also questioned a main witness in the case against Tymoshenko over Shcherban’s murder.
Even if one ignores the advice of European experts, with 35 judges serving in the Pechersk District Court, the odds against these three getting more than one “opposition” case each under random selection are enormous.
Mykhailo Havrylyak, an assistant prosecutor, assured TVi that this was mere coincidence and claimed that none of the defendants have lodged complaints.
Since the doubts also concern Vovk, Havrylyak’s argument is feeble. Vovk was the presiding judge in the trials of Lutsenko and former Acting Defense Minister Valery Ivashchenko and he also authorized the detention of former Deputy Justice Minister Yevhen Korniychuk.
While Vovk is the only prominent judge in these opposition trials with tenured status, there are other compelling grounds for questioning his independence. LB.ua reports that a criminal case against him was initiated in 2009 over charges that he had issued a knowingly wrongful ruling in a land dispute. The decision to initiate criminal proceedings was soon cancelled. Then in early March 2012, the Supreme Court reinstated it, only for it to again be revoked last year.
If the Venice Commission bases its recommendation on the obvious vulnerability of young judges who have not yet received tenured status, how much greater the leverage when a judge may face criminal charges.
Vovk consistently rejected all applications to release Lutsenko and other allegations from witnesses about pressure brought to bear on them, distorted testimony and much more.
The European Court of Human Rights has thus far only examined a first application from Lutsenko regarding his initial detention. The court unanimously found that Lutsenko’s right to liberty had been violated. The government’s only response has been to pay out the 15,000 euros awarded to Lutsenko.
The judges have not suffered for this. Quite the contrary. Vovk is no longer facing criminal charges, Kireyev has been promoted to a position few of his age and temporary status could hope for.
The conclusions seem all too clear, leaving no room for doubt as to how “random” the selection of judges for the trials of opposition figures has been. Given the timing of Kireyev’s promotion, the new case against Tymoshenko, as well as attempts to get her defense lawyer – Serhiy Vlasenko – stripped of his seat in parliament, the only real question mark hangs over the sincerity of any assurances given by Yanukovych at the European Union-Ukraine Summit on Feb. 25.
Halya Coynash is a member of the Kharkiv Human Rights Group.
