EUROPEAN PARLIAMENT MONITORING MISSION TO Mr , former President of the European Parliament Mr Aleksander KWAŚNIEWSKI, former President of the Republic of Poland

Mission update on 18 April 2013, Strasbourg

. Former Prime Minister Mrs Tymoshenko remains in hospital care, without video monitoring and attended only by female guards. She has not been able to attend Court hearings and has not been transferred back to the colony. . Former Minister of the Interior Mr Lutsenko was pardoned on 7 April 2013 and released immediately. . Former Acting Minister of Defence Mr Ivashchenko was released on 14 August 2012 and his travel ban lifted. . Since December 2012, the mission has paid close attention to a number of related cases brought against Mr Nemyria MP (Batkivshchina party & Chair of the Rada Committee on European Integration) and Mrs Tymoshenko's lawyer Mr Vlasenko. Mr Vlasenko's travel ban was lifted on 3 April 2013.

Our mission has been facilitated in its work by the good cooperation with the Ukrainian authorities, which has been indispensable for opening hospital, prison and institutional doors and in providing access to a large volume of relevant documents.

The mission has endeavoured to maintain its complete independence and impartiality, in a transparent and open manner engaging with all relevant actors in Ukraine and not allowing any side to instrumentalise it for its own purposes.

We believe this mission has demonstrated a capacity to deliver outcomes that are necessary for the upcoming strategic decisions in the relations between the and Ukraine. We recognise that much work still needs to be done and that, as a privileged channel of communication, the mission can assist in making further progress.

Key statistics

 14 visits to Ukraine  13 Court hearings attended  40 days of meetings in , , Mena penal colony, Yalta

 8 meetings with President Yanukovych  14 meetings with Prime Minister Azarov  2 meetings with the Prosecutor General of Ukraine

 7 meetings with in the Kharkiv hospital  4 meetings with (2 in Court, 2 in prison)  5 meetings with Valeriy Ivashchenko  17 meetings with Yulia Tymoshenko's representatives (lawyer & family)  12 meetings with opposition leaders (Batkivshchina & UDAR)

 10 meetings with EU-27 Heads of Mission  3 meetings with Ukraine's former Presidents (Presidents Kravchuk, Kuchma & Yushchenko).  5 meetings with NGOs (11 in total)

 15 days of meetings in Brussels and Strasbourg  6 meetings with the (Mr Füle 5 times & Mr De Gucht)  5 meetings with the External Action Service (Chief Operating Officer Mr O'Sullivan, Deputy Secretary General Mr Popowski, Managing Director Mr De La Peña, Director Mr Wiegand)  2 meetings with representatives of the and the Venice Commission  10 debriefing meetings at the European Parliament

 27 telephone talks with Ukrainian authorities and opposition leaders

State of play of the various cases monitored

Yulia Tymoshenko

Mrs Tymoshenko is being hospitalised since April 2012 in the Ukrzaliznytsia Central Clinical in Kharkiv where a team of doctors of the Charité clinic (, Germany) is overseeing her treatment.

In the “gas case”, Yulia Tymoshenko was convicted by the Kyiv Pecherskyi District Court on 11 October 2011 for excess of official authority that resulted in grave consequences (Art 365 of the Criminal Code) and sentenced to 7 years imprisonment with the obligation to recover the inflicted losses of $195,000,000. The verdict was upheld by the Court of Appeal on 23 December 2011 and by the Cassation Court on 29 August 2012. There are currently 2 cases pending before the European Court of Human Rights as regards her detention, medical care and the right to fair trial.

In the “tax case”, Yulia Tymoshenko is charged of the misappropriation, tax evasion and forgery (Art 191, 212 and 366 of the Criminal Code) and the case was submitted to Court on 28 March 2012. The trials at the Kharkiv District Court have been constantly postponed due to the ill health of the defendant.

In the "Shcherban murder case", Yulia Tymoshenko was granted the status of a suspect on 18 January 2013 for allegedly organising a murder under aggravating circumstances (Art 19(4) and 93(a) of the Criminal Code, as amended of 6 March 1992). The pre-trial investigation is being conducted in the Kiev Pecherskyi District Court by the investigating judges without the presence of Mrs Tymoshenko. The deadline of completing the pre-trial investigation was extended to the 18 June 2013. The case is merged with the "UESU debt case", in which Yulia Tymoshenko is suspected of having organised the embezzlement of state property by abusing her official position in especially large amounts (Art 27(3) and 191 of the Criminal Code).

Yuriy Lutsenko

On 7 April 2013, Mr Lutsenko was pardoned by President Yanukovych from serving his primary sentence following the requests by the Ombudsperson and the EP monitoring mission. He was released from the Mena penal colony on the same day.

In the "driver and police day case", Yuriy Lutsenko was convicted by the Kyiv Pecherskyi District Court on 27 February 2012 for misappropriation of state property and the excess of official powers that caused grave consequences. He was sentenced to 4 years imprisonment with confiscation of property and deprivation of the right to hold certain positions and of his civil servant first grade (Art 191 and 365 of the Criminal Code). The verdict was upheld by the Court of Appeal on 16 May 2012 and by the Cassation Court on 4 April 2013, which reduced the amount of civilian claim against Lutsenko by almost $4,000 (from Hr 643,000 to Hr 609,000).

In the "illegal surveillance case", Yuriy Lutsenko was convicted by the Kyiv Pecherskyi District Court on 17 August 2012 for negligence (Art 367 of the Criminal Code) and punished by the restraint of liberty for 2 years, which was covered by the previous verdict of 4 years (the sentence had already been completed in December 2012). The verdict was upheld by the Court of Appeal on 22 November 2012 and by the Cassation Court on 10 April 2013.

On 3 July 2012, the European Court of Human Rights established seven different violations of the European Convention on Human Rights relating to his pre-trial detention. There are 3 other cases pending in the Court as regards his trials and medical care.

Valeriy Ivashchenko

Mr Ivashchenko currently resides in Denmark.

In the "enterprise case", Valery Ivashchenko was convicted by the Kyiv Pecherskyi District Court on 12 April 2012 for abuse and excess of office with grave consequences (Art 364 and 365 of the Criminal Code) while approving the privatisation plan for a state enterprise, and sentenced to 5 years imprisonment. On 14 August 2012, the Court of Appeal decided to impose a 1-year probation period for that sentence and ordered his immediate release in the Courtroom. On 12 March 2013, the Cassation Court upheld that verdict. There is one case pending before the European Court of Human Rights as regards his pre-trial detention and medical care. State of play of the legislative reforms

The mission notes with satisfaction that a new Criminal Procedure Code, endorsed by the Venice Commission, entered into force on 20 November 2012. After the first months of its application, the substantive decrease in several areas, like pre-trial detentions, searches or monitoring of phone conversations, may be observed. The importance of the further effective implementation of the Code must be emphasised, including the establishment of the independent State Bureau of Investigation. We take note of the entry into force of the new Law on Bar and Legal Practice on 15 August 2012, which should enable the defendants to have access to professional and effective legal assistance.

The Constitutional Assembly sent the package of amendments to the Constitution to the Venice Commission on 29 March 2013. This may be considered as a step aimed at reforming the Judiciary and guaranteeing the independence of judges. Subsequently, Ukraine also needs to review the laws on the Judicial System and the Status of Judges.

However, although the work is proceeding, no amendments as regards the reform of the Prosecutor's Office have yet been tabled. A comprehensive reform in that sector is ultimately necessary, in order for the prosecution service to move away from its soviet-style legacy of overwhelming general supervision functions, and minimise the risk of being a potentially dominant tool in the political process.

We also stress that the Criminal Code (including the interpretation and implementation of Articles 364, 365 and 367 which were used in the cases of Yulia Tymoshenko, Yuriy Lutsenko and Valery Ivashchenko) needs a comprehensive review in order to address the cases of selective Justice.

ANNEXES

1 - Composition of the mission:

Special envoys Mr Pat COX, former President of the European Parliament Mr Aleksander KWAŚNIEWSKI, former President of Poland

Core team Mr Arnoldas PRANCKEVIČIUS, External Relations Adviser to the EP President Mr Mihkel ALLIK, Lawyer, European Parliament Legal Service Mr Julien CRAMPES, Policy Advisor, European Parliament DG External Policies Prof. Hans-Jörg ALBRECHT, Director, Max Planck Institute for Foreign and International Criminal Law

Brussels-based team Mr Alexandre STUTZMANN, Diplomatic Adviser to the EP President Mr Joseph DUNNE, Head of the European Added Value Unit, DG Internal Policies, former Diplomatic Adviser to Pat COX Ms Myriam GOINARD, Policy Advisor, European Parliament DG External Policies Ms Lorena MULLER CAMARENA, Assistant Ms Erica SCREEN, Assistant

2 - Our visits to Ukraine in detail

Since the last report to the Conference of Presidents on 6 February 2013, we have conducted 2 official visits to Ukraine, bringing the total number of visits since the beginning of the monitoring mission to 14. Here are the details of the Court hearings that we attended as well as the meetings that we held with the authorities, the opposition and the civil society.

First Visit: 11-12 June 2012, Kyiv Mr , (3 hours) Mr Azarov, Prime Minister of Ukraine Justice Minister Lavrynovych, Health Deputy Minister Moisenko and other officials Family and lawyers of Yulia Tymoshenko

Second Visit: 24-26 June 2012, Kharkiv and Kyiv Attendance of the 3rdCourt hearing (Tax case) in Kharkiv (postponed) Attendance of the 2nd Cassation hearing in Kiev (Gas case) (postponed) Mrs Yulia Tymoshenko in Kharkiv hospital (3 hours) The doctors of Mrs Yulia Tymoshenko in Kharkiv hospital Kharkiv hospital, local prosecution and penitentiary administration Mr Sergey Vlasenko, defence lawyer of Mrs Tymoshenko Mr , Prime Minister of Ukraine Mr , Prosecutor General and Mr , his Deputy (5 hours) EU Heads of Missions, US Ambassador Teft and Mr Parliamentary Secretary to the Minister of Foreign Affairs of Canada Bob Dechert Political foundations Friedrich Ebert Stiftung and Friedrich Naumann Stiftung

Third Visit: 9-13 July 2012, Kharkiv and Kyiv

Attendance of the Court hearing (Tax case) in Kharkiv (postponed) Attendance of the Cassation hearing in Kiev (Gas case) (postponed) Attendance of the Yuriy Lutsenko investigation case (hearing) Mrs Yulia Tymoshenko in Kharkiv hospital (2 hours) The doctors of Mrs Yulia Tymoshenko in Kharkiv hospital Kharkiv hospital, local prosecution and penitentiary administration Mr Sergiy Vlasenko, defence lawyer of Mrs Tymoshenko Mr Yuriy Lutsenko and Mr Valeriy Ivashchenko in Kyiv Prison (5 hours) Lawyers and wifes of Lutsenko and Ivashchenko Mr Mykola Azarov, Prime Minister of Ukraine Mr , EU-Ukraine PCC Co-Chair, Co-President of the Euronest PA Mr Ievgen Zakharov, Head of the Kharkiv Human Rights Union EU Heads of Missions Civil Society organisations: December 11 Initiative, Chesno / Civic Consortium for Election Initiatives, Opora, Committee of Voters, Amnesty International, Renaissance Foundation, Helsinki Human Rights Union Fourth Visit. 22 -24 July 2012, Kharkiv and Kyiv Attendance of the Court hearing (Tax case) in Kharkiv (postponed) Mrs Yulia Tymoshenko in Kharkiv hospital (2.5 hours) The doctors of Mrs Yulia Tymoshenko in Kharkiv hospital Kharkiv hospital, local prosecution and penitentiary administration Mr Sergey Vlasenko, defence lawyer of Mrs Tymoshenko Mr Mykola Azarov, Prime Minister of Ukraine Ombudswoman of Ukraine Valeria Lutkovska EU Head of Delegation Pinto Teixeira TVi Director General Mykola Knyazhytsky and the Gorshenin Institute

Fifth Visit: 13-17 August 2012, Kharkiv, Kyiv and Yalta Attendance of the Court hearing (Tax case) in Kharkiv (postponed) Attendance of the Cassation hearing of Yulia Tymoshenko (Gas case) (opened) Attendance of the appeal trial of Valeriy Ivashchenko in Kyiv (verdict) Attendance of the Yuriy Lutsenko investigation case (verdict) Mrs Yulia Tymoshenko in Kharkiv hospital (2.5 hours) The doctors of Mrs Yulia Tymoshenko in Kharkiv hospital Kharkiv hospital, local prosecution and penitentiary administration Mr Valeriy Ivashchenko in the EU Delegation after his release Mr Viktor Yanukovych, President of Ukraine (4 hours) Mr Mykola Azarov, Prime Minister of Ukraine Mr Volodymyr Lytvyn, Speaker of the Mr Andriy Portnov, Presidential Adviser for Judicial System Affairs Mr , Former President of Ukraine Mr , former Speaker of Verkhovna Rada Opposition leaders Mr Oleg Turchynov and Mr Hryhory Nemyrya (Batkivshchyna) NGOs on elections: Chestno, Committee of Voters, Opora EU Heads of Missions

Sixth Visit: 20-21 August 2012, Kyiv Attendance of the Cassation hearing in Kiev (Gas case) (completion) Mr Mykola Azarov, Prime Minister of Ukraine

Seventh Visit: 28-30 August 2012, Kyiv Attendance of the Cassation hearing of Yulia Tymoshenko (Gas case) (verdict) Mr Mykola Azarov, Prime Minister of Ukraine Ms Eugenia Tymoshenko, daughter of Yulia Tymoshenko

Eighth Visit: 5 October 2012, Kyiv Mr Viktor Yanukovych, President of Ukraine Mr Mykola Azarov, Prime Minister of Ukraine

Opposition leader Mr Hryhory Nemyrya (Batkivshchyna) Mr Sergey Vlasenko, defence lawyer of Mrs Tymoshenko Ms Eugenia Tymoshenko, daughter of Yulia Tymoshenko

EU Heads of Missions

Ninth Visit: 6-7 November 2012, Kyiv Mr Viktor Yanukovych, President of Ukraine Mr Mykola Azarov, Prime Minister of Ukraine

Opposition leaders Mr Oleg Turchynov and Mr Hryhory Nemyrya (Batkivshchyna), and Vitaly Kovalchyuk (UDAR) Mr Sergey Vlasenko, defence lawyer of Mrs Tymoshenko Mr Valeriy Ivashchenko (freed ex-Defence Minister) Head of OSCE-ODIHR electoral mission to Ukraine, Ambassador Audrey Glover EU Head of Delegation Jan Tombinski EU Heads of Missions

Tenth Visit: 19-20 November 2012, Kharkiv & Kyiv Attendance of the Yuriy Lutsenko investigation case (hearing in appeal then verdict)

Mr Viktor Yanukovych, President of Ukraine Mr Mykola Azarov, Prime Minister of Ukraine

Mrs Yulia Tymoshenko in Kharkiv hospital Mr Yuriy Lutsenko in Kyiv Appeal Court Mr Valeriy Ivashchenko Ms Eugenia Tymoshenko, daughter of Yulia Tymoshenko

EU Head of Delegation Jan Tombinski EU Heads of Missions

Eleventh Visit: 17-19 December 2012, Kyiv Mr Viktor Yanukovych, President of Ukraine Mr Mykola Azarov, Prime Minister of Ukraine Mr Volodymyr Rybak, Speaker of the Rada Mr Andriy Portnov, Chief Legal Advisor to the President

Opposition leaders Mr & Mr Hryhory Nemyrya (Batkivshchyna) and Vitali Klitschko (UDAR) Mr Sergey Vlasenko, defence lawyer of Mrs Tymoshenko Ms Eugenia Tymoshenko, daughter of Yulia Tymoshenko

US Ambassador Tefft & Deputy Head of Mission Eric Schultz

EU Head of Delegation Jan Tombinski EU Heads of Missions

Twelfth Visit: 3-6 February 2013, Kharkiv, Kyiv & Mena Mr Viktor Yanukovych, President of Ukraine Mr Mykola Azarov, Prime Minister of Ukraine Mr , Minister of Foreign Affairs of Ukraine

Mrs Yulia Tymoshenko in Kharkiv hospital Mr Yuriy Lutsenko in Mena penitentiary colony Opposition leaders Mr Arseniy Yatsenyuk & Mr Hryhory Nemyrya (Batkivshchyna) and Vitaly Kovalchyuk (UDAR) Mr Sergey Vlasenko, defence lawyer of Mrs Tymoshenko Ms Eugenia Tymoshenko, daughter of Yulia Tymoshenko

Former President EEAS Director Gunnar Wiegand EU Head of Delegation Jan Tombinski EU Heads of Missions US Ambassador Tefft & Deputy Head of Mission Eric Schultz

Thirteenth Visit: 7-8 March 2013, Kyiv Mr Mykola Azarov, Prime Minister of Ukraine Mr Andriy Portnov, Deputy Head of the Presidential Administration

Opposition leaders Mr Arseniy Yatsenyuk, Mr Oleg Turchynov & Mr Hryhory Nemyrya (Batkivshchyna) and Vitali Klitschko (UDAR) Mr Sergey Vlasenko, defence lawyer of Mrs Tymoshenko Ms Eugenia Tymoshenko, daughter of Yulia Tymoshenko

EU Head of Delegation Jan Tombinski EU Heads of Missions

Fourteenth Visit: 27-29 March 2013, Kharkiv& Kyiv Mr Viktor Yanukovych, President of Ukraine Mr Mykola Azarov, Prime Minister of Ukraine Mr Viktor Pshonka, Prosecutor General and other PGO officials Mr Andriy Kluyev, Secretary of the National Security and Defence Council of Ukraine

Mrs Yulia Tymoshenko in Kharkiv hospital Mr Sergiy Vlasenko, defence lawyer of Mrs Tymoshenko

Former President Leonid Kravchuk Former Minister of Foreign Affairs Volodymyr Ohryzko

Opposition leaders Mr Arseniy Yatsenyuk & Mr Hryhory Nemyrya (Batkivshchyna) and Vitaly Kovalchyuk (UDAR)

EU Head of Delegation Jan Tombinski EU Heads of Missions US Ambassador Tefft & Deputy Head of Mission Eric Schultz