Archive for December 23rd, 2011

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It’s all in the timing – Yanukovych and Tymoshenko – Well comedy always is!

December 23, 2011

Comedy, they say, is all about timing.

So it seems is the farce of Ukrainian politics, although Ukrainian politics can often be used as an example of comedy, albeit it rather dark comedy.

As most people know, Ms Tymoshenko was jailed for abuse of office a few months ago, to serve a period of 7 years.

The EU, with whom Ukraine was about to close a significant political coup (for both sides) was rather miffed at her jailing.  Not because she was innocent, nobody within the EU has claimed she is innocent, but because of the seemingly flawed judicial process that reached the verdict  and a perception that the investigation was started for political reasons rather than purely lawful reasons in the first place.

Ms Tymoshenko vowed to appeal and duly did so.

On 21st December President Yanukovych’s the closing address for the year to the press, delivered only a few days after the EU/Ukrainian AA and DCFTA negotiations were finally agreed.

When talking about Ms Tymoshenko he stated  “I do not mind that Tymoshenko is released under certain conditions stipulated by law. Moreover, I would like this case to be completed as soon as possible. I’m interested as no one else. I want it to happen,” and went on to say  “I became a ‘hostage of this situation’ and when the Europeans came to us – Jose Manuel Barroso and Herman Van Rompuy, I said, if you know what is the way out of this situation, tell me, what is the practice, but the investigation cannot be stopped, legal proceedings cannot be stopped, they will be considered, and no one has the authority to influence them.”

If he has been the driving force behind what has happened to Ms Tymoshenko as she claims and indeed holds such sway over the courts decisions as she claims, then what he said may suggest that Ms Tymoshenko could be released very shortly given that her appeal is currently happening.

You would think that these words with an on-going appeal would be received fairly well by Ms Tymoshenko, or if not her, then her family and her supporters as well as the EU.

However, this news reaching Ms Tymoshenko evoked a response the following day that she was dropping her appeal against her conviction through the Ukrainian courts with immediate effect as she considered them a farce.  She was instead going to appeal to the European Court of Human Rights.

We are now faced with the comic situation where if the Court of Appeal continue to process her appeal despite her statement saying she has withdrawn it, she may be getting thrown out of jail against her will, whereas only a few months ago she was incarcerated against her will claiming persecution.

If the appeal is indeed stopped as per her wishes, one has to question the logic to her strategy.

Firstly, the Ukrainian judicial system has not had the opportunity to correct an alleged wrong which is the whole point of appeals courts in every nation.   Therefore should there be an eventual verdict by the ECHR in her favour, she can hardly condemn the Ukrainian judicial system when it was not given the procedural opportunity to correct an initial verdict.

An empirical glance at ECHR cases shows that most arrive after a failed appeal through a national appeals court system.

As variation from due process is the foundation of much of the EU’s criticism for her fate, she is now abandoning normal due process and kicking to the side the appeal court system that exists.  Is that necessarily wise?

If the ECHR makes comment in the wording of her eventual case, whilst it may well criticise the due process in the initial trial, it is sure to note that the nation of Ukraine was not provided the opportunity to correct that decision through her own actions via the national appeals system.  That can only weaken any accusations she will undoubtedly make regarding the rule of law in Ukraine.

The next issue is that the ECHR has thousands of pending cases and a very large backlog.  Can preferential treatment to her case be fast-tracked in all good conscience over and above those who are already slowly plodding through the ECHR system?

If everyone is equal before the law, then her human rights take no precedence in the waiting list and timeliness of hearings than any other applicant and pending case at the ECHR.  Bumping her up the list simply because she is a political figure seems morally wrong.  Her human rights matter no more and no less than a placard waving protester from Minsk or the enforced family separation of a foreign spouse barred from living in the UK because they don’t speak English.

If she is to be treated equally by the ECHR establishment as far as other cases go, it will be at least a year or two before her case is heard.  During this time she may as well allow the Ukrainian appeals system to go through its motions, farcical or otherwise.

It also leaves the EU in something of a political dilemma.  Now she has abandoned her appeal, how can she be released legally by Ukraine?  The current government cannot be held responsible for her decision and yet she cannot take part in the October 2012 elections as is desired by the EU if she has abandoned the most timely route to release.  The president cannot pardon her as protocol dictates the pardon must be asked for and Ms Tymoshenko would never allow herself to ask for a pardon from her self proclaimed nemesis.

If the political strategy is to try and embarrass the President with an ECHR ruling it is muted somewhat by failing to exhaust appeals system in Ukraine.  If the strategy relating to the elections in October 2012 is to have them ruled less than free by the international community because she did not take part as a result of refusing to continual her appeal that may very well have led to her release (looking at the inference in the words of President Yanukovych and crediting him with the power to influence a court of appeal decision) there is a serious chance of this strategy backfiring.

Politics, farce, comedy? – You decide!

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Update:  At 1400 Ukraine time on 23/12 the Ukrainian Appeal Court upheld the original conviction of Ms Tymoshenko despite her dropping it the day before.  –  So it’s off to the ECHR –  We will not see how equal her human rights are compared to others in the system.  Fast-track, or lengthy delay like everybody else?

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