A Misguided Report on the Tymoshenko Case
Photo Credit: European People's Party Congress
A blue-chip Washington law firm recently issued a report on the trial of former Ukrainian prime minister Yuliya Tymoshenko that will almost certainly lead to more confusion than clarity. A team of lawyers from the firm, Skadden, Arps, Slate, Meagher, and Flom, was asked by the Ukrainian government to determine whether the proceedings against Tymoshenko met the standards of judicial fairness that prevail in advanced democracies. Tymoshenko, keep in mind, was sentenced to seven years in prison for supposedly abusing her authority in reaching a natural gas agreement with Russia in 2009.
The report that the Skadden team issued was a classic something-for-everyone product. For Tymoshenko’s supporters, there is the conclusion that her lawyers were prevented from calling important witnesses whose testimony might have proved material to the case. The report notes that prosecutors presented evidence against Tymoshenko to the court when her lawyers were not present. Skadden also criticizes the authorities for having imprisoned Tymoshenko before and during the trial.
Ukrainian president Viktor Yanukovych will also find comfort in the conclusions. Yanukovych, who has nursed a monumental grudge against the leaders of the previous Orange government—Tymoshenko above all—for having deprived him of victory in the severely flawed 2004 elections, is widely believed to have ordered the prosecution of the former prime minister. Many observers, including senior American and European officials, are of the view that Tymoshenko was subjected to a politicized prosecution and thus qualifies as a political prisoner.
Photo Caption: A poster of former Ukrainian Prime Minister Yuliya Tymoshenko is covered in dirt as it lies on the ground. Tymoshenko is in prison after being convicted of abuse of power in a case brought against her by political rival President Viktor Yanukovych.
Photo Credit: Yuliya Semak
On this crucial point, the Skadden team’s findings are utterly baffling. The report concludes, according to the New York Times, that “Mrs. Tymoshenko’s conviction was supported by the evidence presented at trial,” and says the investigation found “no evidence in the trial record to support her main contention, that her prosecution was a politically motivated effort by Mr. Yanukovych.”
Predictably, the Yanukovych government seized on this part of the report as proof that the proceedings had conformed to the norms of judicial fairness. Oleksandr Lavrynovych, Ukraine’s minister of justice, told the Daily Telegraph that Skadden had discredited “Tymoshenko’s accusation that the case was politically motivated and that the judge made his decision based on orders from the political system.”
Here is where the Skadden report veers from the confusing to the downright pernicious. The team seems to believe that the judges and prosecutors in a political trial will behave in much the same way as Soviet court officials during the Stalinist purge trials, with polemical speeches from the representatives of the state and abased guilty pleas from the defendants. In fact, outrageous behavior does occasionally take place in politically inspired proceedings, as in Ecuadorean president Rafael Correa’s tirades against journalists in the midst of an infamous libel case. Increasingly, however, authoritarian governments take care to ensure that when dissidents or opposition leaders are subjected to political trials, the formal proceedings are conducted along lines that would come close to passing muster in societies with rule of law traditions, with both sides able to present evidence, call witnesses, raise objections, and so forth. Under such circumstances, attempting to ascertain the fairness of a judicial proceeding involving a regime critic or opposition figure can be a useless exercise—indeed, worse than useless if it legitimizes a trial whose outcome was decided well in advance.
On this score, the Skadden team cannot claim political naïveté. The team’s leading member, Gregory Craig, is a veteran diplomat and government official whose most recent position was White House counsel in the Obama administration. Pressed on the question of the trial’s legitimacy, Craig admitted he was aware that Secretary of State Hillary Clinton and other world leaders had criticized the case against Tymoshenko as an example of political reprisal. His response bordered on the surreal: “We leave to others the question of whether this prosecution was politically motivated. Our assignment was to look at the evidence in the record and determine whether the trial was fair.”
In fact, “others” have reached the conclusion that the prosecutions of Tymoshenko and her fellow Orange leaders were politically driven. Perhaps the best example is a report issued after the recent Ukrainian parliamentary elections by the Organization for Security and Cooperation in Europe’s Office for Democratic Institutions and Human Rights (ODIHR). In a sharply worded critique of the elections, the ODIHR pointed first and foremost to the fact that Tymoshenko and another Orange figure, Yuriy Lutsenko, had been imprisoned and could not play a leadership role in the opposition campaign. Furthermore, additional cases have been brought against Tymoshenko, including one implicating her in murder. As matters now stand, Yanukovych seems resolute in arranging things so that his nemesis will spend the rest of her life behind bars.
Creating the foundation of a strong rule of law system in societies where justice by telephone call was once the norm is a crucial challenge, as rampant corruption and widespread impunity remain the great enemies of democratic consolidation in postauthoritarian settings. Over the past several decades, American lawyers have often played an admirable role in assisting new democracies as they overhaul their legal systems. By giving even a qualified stamp of approval to the courtroom technicalities of a case whose overarching objective smells strongly of political revenge, Skadden Arps has made a regrettable departure from this praiseworthy tradition.
Analyses and recommendations offered by the authors do not necessarily reflect those of Freedom House.