Are retrospective reviews under the new Ukrainian Criminal Code Procedure a good idea?February 27, 2012
A few interesting comments were made by President Yanukovych over the weekend during a 2 hour television interview relating to many things, from elections to the current situation Ms Tymoshenko is in.
For instance, he stated “From what Europeans say, I agree with the fact that Ukraine’s legislation is imperfect and that the trial of Tymoshenko and others didn’t meet European standards and principles. I absolutely agree with this.” - Well quite right. Nobody within Europe has stated she was innocent, they have complained bitterly that the process was not to European standards.
However, every Ukrainian citizen is subjected to the same imperfect trial system which is why the courts are so corrupt. If and when her conviction for misuse of office is ever overturned, that should not be the end of the matter as far as European standards of due process are concerned. Tomorrow, I may face the same imperfect system under some old Soviet law that remains on the statute books and has no place in modern day Ukraine.
Credit where credit is due, this government has actually got around to dealing with Ukraine’s 1995 Council of Europe commitments and has produced a Criminal Procedures Code, although it has yet to pass through parliament, it is likely to do so before the summer.
In fact the President went on to state “I believe that that we should have all these cases considered again from the point of view of the new Criminal Procedure Code, which will comply with all European standards.” The question is really when parliament will actually get around to looking at the new CPC and voting for it. Once that happens then there is a review, but can and should the introduction of a new code and new laws be applied retrospectively?
If Tymoshenko’s case (and other high profile cases) are subjected to a retrospective quashing under the new CPC, why not every other Ukrainian prisoner who has been subjected to the same below European standard due process? Where would it stop, why would it stop and who decides where it stops?
To simply apply it only to ex-politicians of all parties (including the party of the President) is not necessarily going to sit well with the Ukrainian public and will open the door to numerous human rights campaigns from NGOs and public alike.
In going down that road, will the EU promptly stop asking if Ukrainians have previous convictions when they apply for a Visa? They have all been subjected to the same below European standard of due process after all. If Ukrainian due process is not good enough for Tymoshenko, then it is not good enough for me or anybody else I know. We are, after all, equal before the law (and due process) when it comes to European standards are we not?
Don’t misunderstand me here, as historical readers are aware, my position is that Tymsohenko should not be in jail because the due process was not of a high standard. I am also very pleased to see Ukraine finally doing something about the promises it made to the Council of Europe in 1995 and actually generating a CPC that moves closer to European norms.
I appreciate that the new CPC is a possible tool to allow for Tymoshenko to appeal if applied retrospectively, however with retrospective application, there is a Pandora’s Box sat waiting to be opened.