Humanitad Claims Ukrainian Judicial Process is so Flawed that the President Should Intervene

Humanitad, an international non-profit organisation dedicated to promoting justice, human rights and good governance, announced today that the judicial process in Ukraine is so flawed that the President must intervene urgently to prevent serious miscarriages of justice and reform the system as it is incapable of reforming itself.

The statement came from its legal observer mission that attended the trial of Ukrainian opposition leader Yulia Tymoshenko and which has reviewed Ukrainian judicial procedures.

“We have grave concerns that the prosecution and judicial system in Ukraine is so significantly flawed that the trials of Yulia Tymoshenko and other political defendants are likely to result in horrendous miscarriages of justice,” said Jerry Prus-Butwilowicz, the leader of the Humanitad observer mission. Mr Prus-Butwilowicz, who is a barrister-at –law, in independent practice in Australia, NZ and UK and a former UK Senior Crown Prosecutor, added: “There is compelling evidence that the judicial system itself is subject to improper influence from the Prosecutor’s Office and incapable of being independent, or fair. Judges themselves are open to intimidation and even prosecution by the Prosecutor’s Office when they exercise their objectivity on behalf of a defendant or appellant. This is abhorrent to standards of European justice. In these circumstances it is the responsibility of the executive to take urgent and immediate corrective measures to prevent serious miscarriages of justice.”

The announcement from Humanitad follows its open letter to President Viktor Yanukovych of 21 September, 2011.

Humanitad also noted that the trial of Yulia Tymoshenko, presided over by Judge Rodion Kireyev, has been marred by numerous, significant breaches of procedural fairness and breaches of the European Convention on Human Rights. It noted egregious breaches such as insufficient time given to prepare a defence; continuation of court proceedings in the absence of the defendant and legal counsel; unreasonable and unjustified use of detention; and refusal for medical assistance from a personal physician, etc. It also reported that the trial judge frequently favoured the prosecution to the detriment of the defendant which supports the hypothesis that judges are influenced improperly against the interests of the defendant by the Prosecutor’s Office.

“In these unusual and critical circumstances, where lives are at risk, it is imperative that the Head of State is personally made fully aware of the deplorable circumstances of the prosecutions currently before the Ukrainian Courts. Where the judicial institutions cannot act, the “buck stops” with the Head of State,” said Sir John Walsh of Brannagh, a barrister-at-law and constitutional and human rights lawyer.

The legal observers witnessed part of the trial and monitored closely the proceedings and reports of other third-party observers, taking into account published reports such as The Danish Helsinki Committee for Human Rights, “Legal Monitoring in Ukraine II.” The observer mission asserts that the courts and prosecution are not independent and impartial and notes the following in support of its conclusion:

• The selection of judges violates both Ukrainian and international law. Judges are appointed for an initial 5 year term. To become a judge for an unlimited time they must be approved by parliament, making them vulnerable to political assessment and influence. The judge in the Tymoshenko case is only two years into his 5 year term. The computerised selection of judges to cases also appears open to abuse.
• The judiciary is too easily swayed to allow remand in custody as a precautionary measure – 88% of custody requests were fulfilled in 2010 – illustrating an extraordinary influence from prosecutors.
• Not all politicians respect the independence of the judiciary. The latter can be influenced by statements from senior politicians, such as the President, Prime Minister, Deputy Head of the Presidential Administration, etc..
• The Prosecutor General exerts undue influence on the judiciary. Prosecutors should not be responsible for disciplining judges.

The Danish Helsinki Committee for Human Rights Report cites a case on 7 June, 2011 when Deputy Prosecutor General M. Havrylyuk, a member of the Higher Council of Justice, initiated disciplinary proceedings in the Higher Council of Justice against three appeal court judges for “having ignored the opinion of the prosecutor, unreasonably interfered with the course of pre-trial investigation, and taken a one-sided position in favour of the defendant.” This situation highlights the fact that there is no legitimate and honest appeal system in Ukraine and judges who decide against the prosecution are likely to be prosecuted themselves.

• If judicial officers in Ukraine can be influenced in such a manner, then defence lawyers are likely to be operating under similar undue pressure and influence which may impact the efficacy of their defence to the detriment of their client.

Humanitad noted a general public consensus and considerable public comment from international political leaders, supporting the opinion that the charges against Yulia Tymoshenko and the other defendants amount to the criminalisation of normal political decisions.

In summary, Humanitad concluded that the Ukrainian Courts and prosecutors have failed to be independent or impartial; preventive custody is overused and abused; the presumption of innocence and equality of the parties is non-existent; there is a lack of independence of the judiciary from political influence – courts are open to undue influence by politicians in power; the process to appoint and discipline judges is flawed and the selection of judges violates international and Ukrainian law; the Higher Council of Justice is under undue political influence; the role of the Ukrainian Prosecutor General is overly powerful and fatally undermines the separation of legal functions; and there is imbalance between the prosecution and judiciary.

“If persons such as judges and former ministers cannot expect due process, no-one can be assured of the protection of law in Ukraine,” said Paul Wilson, a Research Fellow and Honorary Professor at Bond University in Queensland, Australia. “We therefore urge President Yanukovych, as Head of State, to serve the interests of justice and the Ukrainian people as mandated by his office and remedy the situation without delay. It is our hope that Mrs Tymoshenko and other political prisoners will be freed at the nearest opportunity.”

Humanitad welcomed reports that the Ukrainian authorities are seeking to overhaul the Soviet-era Criminal Procedure Code to bring it in line with European standards and recommended that this be done in compliance with advice and recommendations from the European Commission for Democracy through Law (Venice Commission).

Established in 1999, Humanitad (www.humanitad.org) is an international non-profit organisation dedicated to promoting peace, justice, human rights and good governance. It is Producer of the Millennium Development Goals Awards which launched at the UN General Assembly Hall and founder of the Exemplar-Zero Initiative. The organisation works with religious and political leaders across the globe and develops intergovernmental initiatives which serve human and planetary betterment. It recently advocated and won the release of Indonesian spiritual leader Anand Krishna who undertook a hunger strike whilst unlawfully imprisoned.