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How Selective Justice Works in Ukraine

It’s really more about selecting judges.

by Barbara Frye 2 May 2013

When the European Court of Human Rights ruled on 30 April against the pretrial detention of Yulia Tymoshenko, Ukraine’s imprisoned former prime minister, a Ukrainian official “stormed out of the courthouse,” according to the Associated Press.

 

After reading the ruling, I wondered how he could work up the indignation: it seemed inevitable that the court would go against Ukraine, as the young Ukrainian trial judge had made a bad and unnecessary move.

 

The trial of Yulia Tymoshenko, presided over by Rodion Kireyev. Photo from www.tymoshenko.ua.

 

Among other questions, the Strasbourg court examined whether Tymoshenko’s right to liberty and security, guaranteed by Article 5 of the European Convention on Human Rights, had been violated. That article allows only six reasons why someone may be detained against his or her will. The relevant ones in Tymoshenko’s case: when someone has been convicted of a crime (she had not); when necessary to ensure compliance with a court order or some other legal obligation; and when necessary to keep someone from fleeing justice.

 

Instead, the judge in Tymoshenko’s case ordered her to jail because he said she had shown contempt for the proceedings. How did she do this? Read the ruling:

 

Furthermore, the detention order of 5 August 2011 had not indicated that Ms. Tymoshenko had breached the obligation not to leave town, which had been applied to her as a preventive measure. Nor had the judge of the trial court asserted that she had been absent from any of the court hearings. Accordingly, no risk of absconding was discernible from the accusations which had been advanced among the reasons for her detention, which included namely the fact that she had refused to announce her address at a court hearing and that she had been a few minutes late for one of the hearings.

 

From our coverage of the case, I know Tymoshenko was more obstreperous than that, but still nothing to rise to the level of detention pending a verdict.

 

Which got me thinking about the judge, Rodion Kireyev. Here’s what Sergey Sydorenko, who wrote about the trial for TOL, had to say:

 

At 31, he is a young judge, who has never dealt with cases involving more than hundreds of dollars. And he is the only judge at this court still in an obligatory, five-year probationary period before being re-appointed to the bench for life, meaning that his further career could depend on his perceived loyalty to the government and to the court administration.

 

So where is Kireyev, now? According to the Kyiv Post, he was promoted in February to acting deputy head of the Kyiv City Pechersk District Court “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 March, the paper reported on a television news investigation into the careers of “previously obscure judges in prominent cases.” The article has since gone behind the paywall (worth paying), so I’ll quote liberally from it here:

 

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.

 

Ukraine has ignored a recommendation from the Venice Commission, a legal and constitutional advisory body, not to appoint untenured judges to politically charged cases, supposedly on the basis that it has a random trial-assignment system. But the evidence suggests that the assignments aren’t too random.

 

Among other instances, one young judge, on the bench only since 2010, was involved in the sentencing of Yuri Lutsenko, Tymoshenko’s former interior minister whose pretrial detention was also struck down by the Strasbourg court, and has questioned a witness in a murder-for-hire investigation against Tymoshenko. Another, appointed in 2011, was involved in the two trials against Lutskenko. Yet another has been involved in legal proceedings involving both Lutsenko and Tymoshenko.

 

“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,” the Kyiv Post notes. 

 

Indeed.

 

I don’t know Kireyev or any of these other judges. I don’t know if they’re corrupt or honest. Maybe they’re negotiating the shark tank the best they can.

 

But I do know that Yanukovych’s protestations that justice is independent and impartial in Ukraine mean little when, if you’ll pardon another metaphor, such political hot potatoes are handed to those with tender fingers.

Barbara Frye is TOL's managing editor.
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