Experienced trial lawyers worldwide realize that media reports of high profile cases quite often do not accurately reflect the judicial event they narrate. However, if the overwhelming majority of press and other observers describe a persistent pattern of prosecutorial overreaching and politicization, then the matter calls for closer scrutiny to determine the correctness of these commentaries. The conviction and sentencing of Yulia Tymoshenko, the former prime minister of Ukraine, has now become, in the words of Alice in Wonderland, "curiouser and curiouser." Has the Queen of Hearts of Orange Revolutionary fame lost her political head and personal freedom in a politically biased judicial execution? If so, on what evidentiary basis and was it in a fair and just manner?
The vast majority of observers in Ukraine and abroad recognized from the onset that the prosecution was politically motivated and constituted selective justice. No amount of breast-beating protestation to the contrary will alter this obvious truth. The Ukrainian prosecutors had fair warning from the international community that continuing on the selective justice path was a fool's errand and would not only discredit Ukraine's government, but also the Ukrainian judicial system and would most likely endanger Ukraine's geopolitical interests. Regrettably, the prosecution preferred to blindly ignore these dire warnings and commenced a surreal Kafkaesque trial which had spiraled virally out of control, inflicting irreparable damage to any vestige of Ukrainian prosecutorial or judicial credibility in the eyes of the world.
Yulia Tymoshenko was criminally convicted of exceeding her authority as Ukraine's prime minister in January 2009, for allegedly instructing, without the approval of the Cabinet of Ministers, governmentally owned NAK Naftogaz to enter into financially unfavorable long term gas contracts with Russia's Gazprom, resulting in purported economic damage to Ukraine. There was no allegation or any evidence of personal financial profit. This type of criminal conviction is reminiscent of Soviet-era justice where errors in political or economic judgment (or failure to meet harvest output quota) would conclusively relegate the transgressor to a gulag in Siberia.
As was noted by the Danish Helsinki Committee for Human Rights, the accusations against Tymoshenko would not be considered criminal in other democratic countries rather; they would have political or civil consequences only. In the US, acts committed by government officials which are beyond their political authority are routinely declared null and void and of no effect by courts as being ultra vires, or "beyond the powers", without imposing criminal responsibility.
The evidence on which the Tymoshenko conviction was based, viewed in the most favorable light for the prosecution, puts into question whether her criminal conviction was convincingly and justly proved even under Ukrainian law. After all, is it not universally accepted in democratic societies that the prosecution has the burden of proof to establish the defendant's guilt to a reasonable certainty?
During the course of the Tymoshenko trial, a parade of witnesses testified as to the claimed damage occasioned to Ukraine as a result of the alleged wrongful conduct of the former prime minister. Former Ukrainian president Viktor Yushchenko lent his voice to the chorus condemning his former ally, claiming she betrayed Ukrainian interests by agreeing to an inflated price with Gazprom. In stark contrast, the Russian Foreign Ministry, probably motivated to come forward by self interest in preserving the 2009 contracts, was quick to denounce his testimony as a lie stating that Yushchenko was fully aware of the negotiations and even confirmed to Russian President Dmitry Medvedev that the Ukrainian prime minister was authorized to do so. Other prosecution witnesses have further impeached the credibility of the prosecution's own case and testified that Tymoshenko's acts were within the realm of her authority as Ukrainian prime minister or had the presumption of validity since the gas contracts were not invalidated by the courts. Nor did the prosecution's own actions help rehabilitate its credibility either. It had opposed the defendant's call to question former officials of her government or to call as witnesses the obviously indispensable parties who negotiated the gas contract on the Russian side.
Most importantly, the prosecution had failed during the trial to ask its witnesses especially Yushchenko why none of them initiated a court action in January 2009, or at anytime thereafter, to declare the 2009 gas contracts invalid. The issue of the validity of the contracts was a question of public debate since January 2009. This issue was the sole lynchpin centerpiece in the case against the former prime minister. Surely, persons in the government or the opposition had a right, if not a duty, to do so if they sincerely believed that the prime minister exceeded her powers. Why did the Yushchenko administration and the present administration continue to abide by the terms of the 2009 gas contracts if they contradicted Ukrainian law? Tymoshenko's prosecution, on the basis of the feeble evidence presented, now puts the prosecution in the unenviable position if one follows basic logic of having to prosecute the present and past governments for criminal complicity on the grounds that they continued to honor contracts which they knew to be invalid. If the Ukrainian prosecutors fail to do so, it will only cement the prevalent world opinion that the criminal conviction and sentencing of Yulia Tymoshenko was solely a politically motivated act.
The Tymoshenko conviction and sentencing are a very tragic step backwards and a serious setback in the democratic evolution of the Ukrainian nation. Unless this miscarriage of justice is promptly reversed, the Ukrainian judicial system will stand convicted as an arm of a totalitarian state, and Ukraine could be precluded from furthering its integration into the European community. It is hoped that the anticipated appellate review process within the Ukrainian legal system will swiftly rectify this tragic miscarriage of justice and curtail the geopolitical damage that will inevitably befall Ukraine. It should be remembered that the Tymoshenko conviction is no longer about her but about the future prospects of Ukraine as a democratic society that respects the rule of law a just and fair society that the Ukrainian people deserve.
Myroslaw Smorodsky is a US attorney, a member of the Board of Governors of the Ukrainian American Bar Association and a member of the World Congress of Ukrainian Jurists.
Suggested citation: Myroslaw Smorodsky, Tymoshenko Sentencing a Tragic Use of Selective Justice, JURIST - Hotline, Oct. 28, 2011, http://jurist.org/hotline/2011/10/myroslaw-smorodsky-tymoshenko-sentencing.php.
This article was prepared for publication by Michael Glenn, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to him at email@example.com