On the Sentencing of Valery Ivashchenko
Former acting Minister of Defence Valeriy Ivashchenko has today been sentenced to 5 years imprisonment for violation of Articles 364, 2 and 365, 3.
The Danish Helsinki Committee for Human Rights has monitored the investigation, detention, prosecution and trial since the beginning of 2011. In August 2011 it launched a Preliminary Report II on the monitoring, which points at a number of general problems in the Ukrainian Criminal Justice System and in this specific case. It does not take side in the question of guilt or innocence.
The Danish Helsinki Committee has just (April 2012) publicized a Report IV on the Ukrainian reactions to the demands of the Council of Europe to improve the rule of law; the Report also comments on this case.
The conclusion is that the sentence in the Ivashchenko case is not the result of a fair trial in a legal system respecting the rule of law and basic human rights principles.
The attention is especially drawn to the facts that
the actions and decisions for which Mr. Ivashchenko has been prosecuted would in other countries be considered normal political activities which potentially would draw political but not criminal consequences. Due to the political environment in Ukraine and the rule of law situation there is a strong suspicion that the prosecution is politically inspired and selective.
the indictment against Mr. Ivashchenko concerns violations of Article 364 (“abuse of office”) and Article 365 (“excess of authority or official powers”) of the Criminal Code which both are vaguely worded and open to interpretation, having their origin in the old Soviet Penal Code where having an office and the authority of power had a completely different meaning from today (see Report II). They have been criticized by the Council of Europe Parliamentary Assembly in its Resolution 1862 of 26th of January 2012 (see Report IV)
the three judges are all very young. The chairman of the court (Serjiy Vovk) has two criminal investigations pending against him (as described in Report IV). One judge (Oksana Tsarevych) is not even appointed permanent judge (Oksana Tsarevych) and is later to have her permanent appointments confirmed by the Verkhovna Rada (criticized in Resolution 1862, see Report IV). They have been under pressure to deliver a judgment which will not be controversial to their future careers. It is remarkable to see so young judges in such a politicized high profile case and most unlikely that they have been selected by the prescribed random procedure, the purpose of which is to prevent biased judges. That has also been criticized in Resolution 1862 (see Report IV).
in general the Ukrainian Courts acquit only 0.2% of the persons indicted by the Prosecution, strongly indicating that there is a lack of presumption of innocence and that the Judiciary does not function properly as the impartial and independent controller of the executive power.
Mr. Ivashchenko has been in detention for 19 months. No time limits have been set and no justification given by the Court for most of that period which in similar cases by the European Court on Human Rights (ECtHR) has been declared a violation of the European Convention on Human Rights (ECHR).
Mr. Ivashchenko has been placed in a cage in the court room, which by the ECtHR in a similar case has been found to be a violation of the ECHR.
For further information contact Mikael Lyngbo (+45 2343 7905 or [email protected]
Karsten Fledelius
President, Danish Helsinki Committee for Human Rights:
12 April 2012.