Mission update on 18 April 2013, Strasbourg
Former Prime Minister Mrs Tymoshenko remains in hospital care, without video monitoring and attended only by female guards. She has not been able to attend Court hearings and has not been transferred back to the colony.
§ Former Minister of the Interior Mr Lutsenko was pardoned on 7 April 2013 and released immediately.
§ Former Acting Minister of Defence Mr Ivashchenko was released on 14 August 2012 and his travel ban lifted.
§ Since December 2012, the mission has paid close attention to a number of related cases brought against Mr Nemyria MP (Batkivshchina party & Chair of the Rada Committee on European Integration) and Mrs Tymoshenko’s lawyer Mr Vlasenko.
Mr Vlasenko’s travel ban was lifted on 3 April 2013.
Our mission has been facilitated in its work by the good cooperation with the Ukrainian authorities, which has been indispensable for opening hospital, prison and institutional doors and in providing access to a large volume of relevant documents.
The mission has endeavoured to maintain its complete independence and impartiality, in a transparent and open manner engaging with all relevant actors in Ukraine and not allowing any side to instrumentalise it for its own purposes.
We believe this mission has demonstrated a capacity to deliver outcomes that are necessary for the upcoming strategic decisions in the relations between the European Union and Ukraine. We recognise that much work still needs to be done and that, as a privileged channel of communication, the mission can assist in making further progress.
Key statistics
Ø 14 visits to Ukraine
Ø 13 Court hearings attended
Ø 40 days of meetings in Kyiv, Kharkiv, Mena penal colony, Yalta
Ø 8 meetings with President Yanukovych
Ø 14 meetings with Prime Minister Azarov
Ø 2 meetings with the Prosecutor General of Ukraine
7 meetings with Yulia Tymoshenko in the Kharkiv hospital
4 meetings with Yuriy Lutsenko (2 in Court, 2 in prison)
5 meetings with Valeriy Ivashchenko
17 meetings with Yulia Tymoshenko’s representatives (lawyer & family)
12 meetings with opposition leaders (Batkivshchina & UDAR)
Ø 10 meetings with EU-27 Heads of Mission
Ø 3 meetings with Ukraine’s former Presidents (Presidents Kravchuk, Kuchma & Yushchenko).
Ø 5 meetings with NGOs (11 in total)
Ø 15 days of meetings in Brussels and Strasbourg
Ø 6 meetings with the European Commission (Mr Füle 5 times & Mr De Gucht)
Ø 5 meetings with the External Action Service (Chief Operating Officer Mr
O’Sullivan, Deputy Secretary General Mr Popowski, Managing Director Mr
De La Peña, Director Mr Wiegand)
Ø 2 meetings with representatives of the Council of Europe and the Venice Commission
Ø 10 debriefing meetings at the European Parliament
Ø 27 telephone talks with Ukrainian authorities and opposition leaders
State of play of the various cases monitored
Yulia Tymoshenko
Mrs Tymoshenko is being hospitalised since April 2012 in the Ukrzaliznytsia Central Clinical in Kharkiv where a team of doctors of the Charité clinic (Berlin, Germany) is overseeing her treatment.
In the “gas case”, Yulia Tymoshenko was convicted by the Kyiv Pecherskyi District Court on 11 October 2011 for excess of official authority that resulted in grave consequences (Art 365 of the Criminal Code) and sentenced to 7 years imprisonment with the obligation to recover the inflicted losses of $195,000,000. The verdict was upheld by the Court of Appeal on 23 December 2011 and by the Cassation Court on 29 August 2012. There are currently 2 cases pending before the European Court of Human Rights as regards her detention, medical care and the right to fair trial.
In the “tax case”, Yulia Tymoshenko is charged of the misappropriation, tax evasion and forgery (Art 191, 212 and 366 of the Criminal Code) and the case was submitted to Court on 28 March 2012. The trials at the Kharkiv District Court have been constantly postponed due to the ill health of the defendant.
In the “Shcherban murder case”, Yulia Tymoshenko was granted the status of a suspect on 18 January 2013 for allegedly organising a murder under aggravating circumstances (Art 19(4) and 93(a) of the Criminal Code, as amended of 6 March 1992). The pre-trial investigation is being conducted in the Kiev Pecherskyi District Court by the investigating judges without the presence of Mrs Tymoshenko. The deadline of completing the pre-trial investigation was extended to the 18 June 2013.
The case is merged with the “UESU debt case”, in which Yulia Tymoshenko is suspected of having organised the embezzlement of state property by abusing her official position in especially large amounts (Art 27(3) and 191 of the Criminal Code).
Yuriy Lutsenko
On 7 April 2013, Mr Lutsenko was pardoned by President Yanukovych from serving his primary sentence following the requests by the Ombudsperson and the EP monitoring mission. He was released from the Mena penal colony on the same day.
In the “driver and police day case”, Yuriy Lutsenko was convicted by the Kyiv Pecherskyi District Court on 27 February 2012 for misappropriation of state property and the excess of official powers that caused grave consequences. He was sentenced to 4 years imprisonment with confiscation of property and deprivation of the right to hold certain positions and of his civil servant first grade (Art 191 and 365 of the Criminal Code). The verdict was upheld by the Court of Appeal on 16 May 2012 and by the Cassation Court on 4 April 2013, which reduced the amount of civilian claim against Lutsenko by almost $4,000 (from Hr 643,000 to Hr 609,000).
In the “illegal surveillance case”, Yuriy Lutsenko was convicted by the Kyiv Pecherskyi District Court on 17 August 2012 for negligence (Art 367 of the Criminal Code) and punished by the restraint of liberty for 2 years, which was covered by the previous verdict of 4 years (the sentence had already been completed in December 2012). The verdict was upheld by the Court of Appeal on 22 November 2012 and by the Cassation Court on 10 April 2013.
On 3 July 2012, the European Court of Human Rights established seven different violations of the European Convention on Human Rights relating to his pre-trial detention. There are 3 other cases pending in the Court as regards his trials and medical care.
Valeriy Ivashchenko
Mr Ivashchenko currently resides in Denmark.
In the “enterprise case”, Valery Ivashchenko was convicted by the Kyiv Pecherskyi District Court on 12 April 2012 for abuse and excess of office with grave consequences (Art 364 and 365 of the Criminal Code) while approving the privatisation plan for a state enterprise, and sentenced to 5 years imprisonment. On 14 August 2012, the Court of Appeal decided to impose a 1-year probation period for that sentence and ordered his immediate release in the Courtroom. On 12 March 2013, the Cassation Court upheld that verdict. There is one case pending before the European Court of Human Rights as regards his pre-trial detention and medical care.
State of play of the legislative reforms
The mission notes with satisfaction that a new Criminal Procedure Code, endorsed by the Venice Commission, entered into force on 20 November 2012. After the first months of its application, the substantive decrease in several areas, like pre-trial detentions, searches or monitoring of phone conversations, may be observed. The importance of the further effective implementation of the Code must be emphasised, including the establishment of the independent State Bureau of Investigation. We take note of the entry into force of the new Law on Bar and Legal Practice on 15 August 2012, which should enable the defendants to have access to professional and effective legal assistance.
The Constitutional Assembly sent the package of amendments to the Constitution to the Venice Commission on 29 March 2013. This may be considered as a step aimed at reforming the Judiciary and guaranteeing the independence of judges. Subsequently, Ukraine also needs to review the laws on the Judicial System and the Status of Judges.
However, although the work is proceeding, no amendments as regards the reform of the Prosecutor’s Office have yet been tabled. A comprehensive reform in that sector is ultimately necessary, in order for the prosecution service to move away from its soviet-style legacy of overwhelming general supervision functions, and minimise the risk of being a potentially dominant tool in the political process.
We also stress that the Criminal Code (including the interpretation and implementation of Articles 364, 365 and 367 which were used in the cases of Yulia Tymoshenko, Yuriy Lutsenko and Valery Ivashchenko) needs a comprehensive review in order to address the cases of selective Justice.
