EIT: Julia Timoshenkon oikeudenkäynnissä lukuisia puutteita2.5.2013 | Oikeusuutiset
Euroopan ihmisoikeustuomioistuin (EIT) on tiistaina antamassaan tuomiossa katsonut, että Ukrainan entisen pääministerin Julia Timoshenkon oikeudenkäynnissä on loukattu useita Euroopan ihmisoikeussopimuksen artikloita.
EIT katsoi, että Timoshenkon asiassa oli loukattu EIS 5 artiklan 1, 4 ja 5 kohtia (oikeus vapauteen ja henkilökohtaiseen turvallisuuteen; oikeus vaatia tuomioistuimessa, että vapaudenriiston laillisuus tutkitaan viipymättä; oikeus vahingonkorvaukseen laittoman vapaudenriiston johdosta), kuin myös harvinaisesti EIS 18 artiklaa (EIS:ssa taattujen oikeuksien käyttöä koskevien rajoitusten rajoittaminen) yhdistettynä EIS 5 artiklaan.
Article 5 § 1
As regards Ms Tymoshenko’s complaint that her pre-trial detention had been unlawful and arbitrary, the Court noted that her detention pending trial had been ordered for an indefinite period of time, which in itself was contrary to the requirements of Article 5. The Court had found in other cases against Ukraine that this had been a recurrent issue resulting from legislative lacunae.
Furthermore, the detention order of 5 August 2011 had not indicated that Ms Tymoshenko had breached the obligation not to leave town, which had been applied to her as a preventive measure. Nor had the judge of the trial court asserted that she had been absent from any of the court hearings. Accordingly, no risk of absconding was discernible from the accusations which had been advanced among the reasons for her detention, which included namely the fact that she had refused to announce her address at a court hearing and that she had been a few minutes late for one of the hearings. The main justification for her detention indicated by the judge had been her alleged hindering of the proceedings and contemptuous behaviour. This reason was not included among those which would justify deprivation of liberty under Article 5 § 1. Moreover, it remained unclear how it was a more appropriate measure in the circumstances of Ms Tymoshenko’s alleged contemptuous behaviour to replace the obligation not to leave town with her placement in detention. Given that the reasons indicated for her pre-trial detention remained the same until her conviction, the Court considered that the detention had been arbitrary and unlawful during the entire period. There had accordingly been a violation of Article 5 § 1.
Article 5 § 4
The lawfulness of Ms Tymoshenko’s detention had been reviewed by the Ukrainian courts on several occasions. However, the relevant court decisions did not satisfy the requirements of Article 5 § 4, as they had been confined to the mere statement that no appeal was possible against a ruling on change of a preventive measure ordered during the examination of a criminal case and had reiterated the initially applied reasoning, which the Court had found to be deficient. While Ms Tymoshenko had advanced specific arguments in her numerous applications for release – in particular her unfailing compliance with the obligation not to leave town and the fact that she had made no attempt to obstruct the investigation – the trial court had dismissed her requests without having given any consideration to those arguments. Furthermore, the Court had already found in other cases that Ukrainian law did not provide for a procedure to review the lawfulness of continued detention after the completion of a pre-trial investigation that would satisfy the requirements of Article 5 § 4. There had accordingly been a violation of Article 5 § 4.
Article 5 § 5
The Court observed that under Ukrainian law the right to compensation arose when the unlawfulness had been established by a judicial decision. However, there was no procedure under Ukrainian law for seeking compensation for a deprivation of liberty found to be in breach of Article 5 by the European Court of Human Rights. The Court had already noted that lacuna in its case-law in other cases against Ukraine and the situation had not changed. There had accordingly been a violation of Article 5 § 5.
Article 18 in conjunction with Article 5
The Court noted that Ms Tymoshenko, who was the former Prime Minister and the leader of one of the strongest opposition party, had been accused of exceeding authority or official powers and had been prosecuted shortly after the change of Government. In that respect, the case was similar to the case of Lutsenko v. Ukraine (6492/11), which had concerned the detention of a former Minister. Ms Tymoshenko complained in particular that her detention had been used by the authorities to prevent her from political life and from running as a candidate in the elections of 28 October 2012.
The Court had already found that Ms Tymoshenko’s detention – although according to the Government it had been effected for the purposes provided under Article 5 – had mainly served to punish her for a lack of respect for the trial court. The Court therefore concluded that the restriction of her liberty had not been applied for the purpose of bringing her before a competent legal authority on reasonable suspicion of having committed an offence, but for other reasons. The Court considered this a sufficient basis for finding a violation of Article 18 in conjunction with Article 5.
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