The Trial of Yulia Tymoshenko --A View from the Western Sidelines

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 trial of Ukrainian Ex Prime Minister of Ukraine, Yulia Tymoshenko, has now become, in the words of Alice in Wonderland, “curiouser and curiouser”. Will the Queen of Hearts of Orange Revolutionary fame lose her political head? – If so, on what evidential basis and will it be in a fair and just manner? The vast majority of observers in Ukraine and abroad recognized from the onset of the criminal investigation that the prosecution of Ex Prime Minister Yulia Tymoshenko 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 has spiraled virally out of control inflicting irreparable damage to any vestige of prosecutorial credibility in the eyes of the world. Yulia Tymoshenko is charged criminally with 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 economic damage to Ukraine. There is no allegation or evidence of personal financial profit. This type of criminal indictment 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 in an August, 2011 report, the accusations against Yulia Tymoshenko, if true, would not be considered criminal in other democratic countries – rather, they would have political or civil consequences only. In the United States, 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, [meaning in Latin "beyond the powers"] without imposing criminal responsibility. The current evidence in the Tymoshenko trial, viewed in the most favorable light for the prosecution, puts into question whether a criminal case can be 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 [or rival?] claiming she betrayed Ukrainian interests by agreeing to an inflated price with Gazprom. KP Article 111006 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 President Yushchenko was fully aware of the

Page 1 negotiations and even confirmed to Russian President Medvedev that the Ukrainian Prime Minister was authorized to do so. KP Article 111046 Other prosecution witnesses have further impeached the credibility of the prosecution’s own case and testified that Yulia Tymoshenko’s acts were within the realm of her authority as Ukrainian Prime Minister KP Article 111007 or had the presumption of validity since the gas contracts were not invalidated by the courts. KP Article 110830. Nor have the prosecution’s own actions helped rehabilitate its swiftly declining credibility either. It has opposed the Defendant’s call to question former officials of her government KP article 110870; or to call as witnesses obviously indispensable parties who negotiated the gas contract on the Russian side KP article 111005; has supported the continued incarceration and denial of bail to Tymoshenko on questionable “contempt of court” charges; and has not publicly supported the request of the US embassy to visit Tymoshenko in jail. Most importantly, the prosecution has failed to ask its witnesses – especially former President Yushchenko – why none of them initiated a court action in January, 2009, or at anytime thereafter, to declare as invalid the 2009 gas contracts with Gazprom. The issue of the validity of the contracts was a question of public debate since January, 2009. This issue is now the sole lynchpin centerpiece in the case against the former prime minister. Surely, persons in the then government or in the then 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 now the present administration continue to abide by the terms of the 2009 gas contracts if they contradicted Ukrainian law? If the prosecution convicts Yulia Tymoshenko on the basis of the feeble evidence presented so far, then it may well find itself in the unenviable position 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 it fails to do so, it will only cement the prevalent world opinion that the trial of Yulia Tymoshenko was solely a politically motivated act. At this stage of the Tymoshenko trial, it would behoove the prosecution to take a step back and soberly and realistically evaluate the delicate position where it presently finds itself. Prosecutors have vast powers which - if not exercised wisely – can cause enormous damage to the citizenry’s faith in their judicial system and to the country as a whole. In this case, international calls for termination of this case are legion – many accompanied by direct threats that will most definitely affect Ukraine’s standing in the world. The prosecution must acknowledge, at least to itself, that its case against ex Prime Minister Yulia Tymoshenko does not meet the requisite proof standards for criminal conviction. The prosecution should also realize that if the past and present governments of Ukraine believed ex Prime Minister exceeded her powers, then the proper remedy should have been civil in nature and not criminal. The trial of Yulia Tymoshenko has long ceased to be about her – it is about Ukraine’s system of justice and the fairness of the Ukrainian government as expressed through its prosecutorial and judicial arms. The latter are now on trial in the international court of public opinion – with potentially grim consequences to Ukraine. It is time for the prosecution to consider exercising prosecutorial discretion and basic common sense, and dismissing the case against ex Prime Minister Yulia Tymoshenko as expeditiously as possible – for the good of the Ukrainian nation as a whole. If the ordeal continues and a conviction is obtained on the basis of the unconvincing and contradictory evidence presented to date, then the chants from the international community will not be “selective justice” but will loudly, righteously and universally be “political persecution!” with potentially devastating consequences to follow.

Myroslaw Smorodsky, Esq., August 19, 2001

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