The court that dishonors the rule of law and human rights poses a threat to society

«Ukrainian Alternative» NGO


August, 7 2011


(Original text in Ukrainian:

NGO «Ukrainian Alternative»
on the application of arrest as the measure of restraint to Yuliya Tymoshenko by Pechersk Raion Court



A number of criminal investigations against former cabinet members, government’s political opponents and independent civic activists have been launched in Ukraine since the start of Viktor Yanukovych’s presidency. Adding petty charges against new bureaucrats to the criminal cases against its opponents, the government is trying to create a myth about its reform mindedness.

Those guilty of economic crime, criminal mismanagement, abuse of office, theft or corruption have to be punished regardless of political affiliation. At the same time, political bias is evident in putting pressure or abusing legal instruments in relation to not even political opponents but simple professionals with different worldview, as it was in the case of historian Ruslan Zabily. This poses a threat of further widespread attacks on human rights and basic freedoms in Ukraine.

The August 5 Pechersk Raion court decision applying arrest as the measure of restrain to Yuliya Tymoshenko is contradictory from the point of view of the rule of law, democracy and human rights. The rule of law demands that court decisions have to be grounded in full, objective and comprehensive study of case materials. The sides in the process should have equal rights, be able to compete in court and have freedom to determine the range of evidence, submit motions, call witnesses, and use procedural rights at their discretion without abusing them.

As one can see from the resolution to place Yuliya Tymoshenko in custody, Tymoshenko’s fundamental right to defense is violated because she is has only one attorney Yuriy Sukhov while the prosecution is represented by 4 prosecutors. Without motivating its decision the court refused to allow Tymoshenko’s lawyers enough time to study the case materials. This does not allow Tymoshenko’s defense to study the case and devise defense tactics and strategies. This shows that the court applies law in an arbitrary way and violates guarantees of just and honest trial.

At the same time, Yuliya Tymoshenko’s behavior in court is unacceptable for a defendant, and even more so for a former Prime Minister – Head of the executive branch.

The criminal investigation against Yuliya Tymoshenko who is charged with office abuse is unusual from the point of view of constitutional and international law. According to the constitutional and international law norms and principles, Prime Minister has discretionary powers when negotiating and signing international treaties, i.e. has the right to make decision on his/her sole discretion. According to the Ukrainian Constitution, Prime Minister leads the work of the Cabinet of Ministers, directs it towards implementation of the Cabinet’s program. According to Article 6 of the Law of Ukraine on International Treaties, Prime Minister has the right to conduct negotiation and sign international treaties without additional authorization. Thus, international negotiations and signing of treaties is a discretionary issue in implementing the government program and is an issue of political process.

In fact, we are seeing an attempt to convict a statesman and a politician for her activities in office.

Courts in the civilized world follow the doctrine of refusal to take up political cases. Therefore, consideration of an international treaty through the prism of office abuse is inconsistent with the Constitution of Ukraine and international legal acts.  The court ignores the principles of supremacy of the Constitution and ratified international treaties over the Ukrainian law, which is unprecedented.

The court resolution on applying arrest as a measure of restraint to Yuliya Tymoshenko is unfounded and unsubstantiated.  Violation of court order is a reason for procedural sanctions rather than for a measure of restraint. Examination of witnesses is somehow regarded by court as an obstruction which is a brutal violation of the defendant’s right to defense. One should also take into consideration the fact that due to ridiculous application of procedural sanctions, the defendant was deprived of defense and all court actions during this period should be regarded as illegally obtained evidence.

According to article 62 of the Constitution, charges cannot be based on illegally obtained evidence as well as on assumptions. The court wrongly considers examination of witnesses and a obstruction which we view as a brutal violation of the requirement of the rule of law, justice, inviolability and inalienability of human rights and freedoms.

The conclusion of the court that out of custody the defendant may dodge trial is based on an assumption which is contrary to requirements of Article 62 of the Constitution. This means that the court is not able to formulate the resolution on the application of the measure of restraint properly. Can one expect just court ruling and proper justice when such precedents are created?

The criminal process against Yuliya Tymoshenko as a showcase of arbitrariness in courts, violation of basic principles of justice, low professional level of the judge corps, absence of fairness and impartiality from courts.

It’s not about defending Yuliya Tymoshenko personally. After all, as the head of government she failed to initiate needed changes and did not apply measures to reform the judiciary in accordance with European standards.

We warn against the dangers faced by the society in view of the court arbitrariness and political pressure  on the system of justice. Only a more active position of all honorable citizens, consolidation of civil society organizations, formation of new justice and political culture can guarantee changes for the better in the country.

We demand that all government branches comply with the law and call on all citizens to protect their rights and oppose violations of the law at all levels.

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NGO Ukrainian Alternative was formed on May 4, 2010. Its first members were people from internet social networks. NGO Ukrainian Alternative brings together 2.5 hundred citizens who care where Ukraine is headed. The change of political course after the 2010 presidential elections prompted the people previously not active in the public realm to come together. There are no political forces or politicians, business groups or individual businessmen, organizations behind out activities. Our voluntary initiative is to bring together middle class representatives who want decent life for all.