Detention of Ukrainian|Leader Found Arbitrary

     (CN) – Jailed Ukrainian leader Yulia Tymoshenko was subjected to “unlawful and arbitrary detention,” the European Court of Human Rights ruled Tuesday.
     Tymoshenko, an economist, became wealthy in the natural gas industry before her political aspirations made her a symbol of the Ukraine’s the so-called Orange Revolution.
     Her successor, Viktor Yushchenko, had her prosecuted for her endorsement of a 2009 gas deal that radically transformed the Ukraine’s economy by having the state energy company buy gas directly from Russia’s monopoly, Naftogaz, rather than through the Swiss broker, RosUkrEnergo, or RUE.
     Ukrainian prosecutors called the deal an abuse of power.
     Tymoshenko described her charges as political payback for canceling the contract of RUE’s owner, Dmytro Firtash, a billionaire supporter of Yushenko.
     As her trial neared in August 2011, Tymoshenko submitted an application to the European Court of Human Rights.
     Representatives of the European Union and the U.S. State Department slammed the prosecution as politically motivated after Tymoshenko was convicted on Oct. 11, 2011.
     Months later, the rights court issued an interim order that forced the Ukraine to provide Tymoshenko with proper medical care in prison. It lifted that order, however, once the country showed compliance.
     An eight-judge panel ruled Tuesday that Tymoshenko had been unlawfully and arbitrarily confined in the lead-up to trial – in defiance of Articles 5 of the European Convention.
     The Ukrainian court’s stated purpose for denying Tymoshenko bail – that she was allegedly “contemptuous” of the proceedings – was not a legitimate justification, the court found.
     Under Article 18 of the European Convention, member countries cannot restrict rights “for any purpose other than those” specifically listed, and Tymoshenko argued that the Ukraine also violated this through political prosecution.
     Most judges on the rights sidestepped this issue, however, finding that “the whole structure of the convention rests on the general assumption that public authorities in the member states act in good faith.”
     Ukraine’s stated reason for Tymoshenko’s pretrial detention, a purported “lack of respect for the court,” put them in violation of this statute, without an additional finding of ulterior motives, according to the ruling.
     Three members of the panel agreed with the finding, but not with the reasoning.
     The concurring opinion, signed by Czech Judge Karel Jungwiert, German Judge Angelika Nussberger and French Judge Andre Potocki, criticizes the majority for giving short shrift to Tymoshenko’s “main complaint, which concerns the link between human rights violations and democracy, namely that her detention has been used by the authorities to exclude her from political life and to prevent her standing in the parliamentary elections of 28 October 2012.”
     By avoiding this topic, the majority adopted a rationale that could “render it impossible for the applicant to prove” an abuse of state power, the concurring opinion states.
     “Generally, knowledge about what the court calls a ‘hidden agenda’ is within the sphere of the authorities and is thus not accessible to an applicant,” according to the concurring opinion. “It is therefore necessary to accept evidence of the authorities’ improper motives which relies on inferences drawn from the concrete circumstances and the context of the case.”
     Later, these judges warned: “If the human rights of politically active persons are restricted for the purpose of hindering or making impossible their participation in the political life of a country, democracy is in danger.”
     The majority also drew heat for its reluctance to find that Tymoshenko was abused during her transfer to a hospital, where she was found bruised.
     Tymoshenko claimed that three prison guards forced her to leave her cell by wrapping her in a sheet and hitting her in the abdomen.
     “Feeling acute pain in her abdomen and spine, the applicant lost consciousness and only woke up in the hospital,” the majority opinion states, summarizing the allegations. “She remembered having been carried out to the ambulance by one of the prison guards.
     Despite the permanent surveillance of her cell, the prison administration claimed that no recording of the incident had been made.”
     The hospital’s forensic medical examination stated that bruises were “self-inflicted,” and could not have come from the assault that she alleged. Tymoshenko distrusted the medical staff and rebuffed subsequent examinations.
     While the majority decided that this refusal precluded any finding of degrading and inhuman treatment, three dissenting judges said the matter warrants further study.
     “It is true that the investigation was hampered by the applicant’s refusal to undergo a forensic medical examination on two occasions,” according to the dissent from Luxembourg’s Judge Dean Spielmann, Lichtenstein’s Judge Mark Villiger and Germany’s Judge Nussberger.
     “However, we cannot overlook the fact that the history of the applicant’s detention was characterized by her mistrust of the state authorities, including medical staff and experts who worked under the authority of the state and were not seen by her to enjoy the necessary independence. In these circumstances, we do not find unreasonable the applicant’s wish, in a case in which she alleged an assault by members of the prison administration, to be examined by an expert seen by her to be entirely independent of the state authorities.”
     They added that the “bruising which was established on the applicant’s body was consistent with the account given by her of an assault by one or more members of the staff of the colony at the time of her transfer to hospital. Moreover, it is in any event beyond dispute that the bruising occurred while the applicant was in detention, thereby imposing on the government the burden of advancing a plausible explanation as to how the bruising had occurred which did not involve the use of force on the applicant by members of the staff of the [Kachanivska Correctional Colony]. … In view of the inadequacies of the investigation into the circumstances of the bruising which are noted above, we are of the opinion that the government have failed to advance any plausible explanation for the injuries of the applicants while in detention. Accordingly, in our opinion Article 3 of the convention was violated also in its substantive aspect.”

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