Ukraine, Tymoshenko and the European Court of Human Rights

In a widely-misunderstood ruling Tuesday, the European Court of Human Rights concluded that former Ukrainian Prime Minister Yulia Tymoshenko’s rights were violated when she was detained for contempt of court prior to her conviction, but that the Ukrainian government did not abuse her by providing her expensive medical care.

The ECHR has not yet ruled on the second of her two appeals, which concerns the substance of her conviction itself. Instead, this was limited to her pre-trial and pre-conviction detention, which the ECHR concluded was politically-motivated.

Ukraine has not yet decided whether to appeal this ruling, and has three months to do so. In the interim, it is worth considering what the ruling really says, and what its implications are.

It is a credit to Yulia Tymoshenko’s public relations machine that virtually every wire story that covered this ruling concluded that because her pre-trial detention was unlawful, her conviction could be overturned. In fact, the court only ruled on matters that are, in many ways, moot. Tymoshenko’s pre-trial detention is over; she is now in prison purely as a result of her conviction.

From a broader perspective, the ruling was the last farewell to a legal regime that Kyiv spent much of 2012 banishing into the dustbin of Soviet history. Ukraine’s reformed legal code, which was drafted to conform to European norms, remedies most of the issues raised by the ECHR, including the issue of pretrial detention.

The ECHR did err tactically, however. Instead of merely asserting that Tymoshenko’s pretrial detention was a violation of her rights (a ruling with which Kyiv could have lived), the court apparently went on to conclude that the detention was politically motivated.

On this point, Ukraine is almost compelled to fight. It is a well documented fact that Tymoshenko and her lawyers turned her trial into a circus. There is no court in the West that would tolerate that sort of behavior, and the relatively inexperienced judge who oversaw her case (who was appointed by her Government when she was Prime Minister) clearly lacked the skill to deal with this mockery of justice without throwing her in jail.

Because the ECHR insisted on calling jailing for contempt of court politically motivated – something it would presumably never do to any EU nation – Kyiv must now fear the precedent being set. Any serious effort to battle corruption will put the powerful and wealthy on trial; they now have every reason and incentive to turn their trials into grand media affairs, knowing that they cannot be easily stopped once they start.

By throwing in what was an unnecessary and unwarranted conclusion, the ECHR has virtually guaranteed that Ukraine will appeal this ruling, delaying and jeopardizing its finality.

At the risk of damning with faint praise, the ECHR deserves a plaudit for rejecting the most ridiculous of Tymoshenko’s allegations – that the medical treatment she received in prison was a violation of her human rights, and that the investigation into the abuse she did not receive was so minimal as to be a violation of her human rights. This effectively undercuts Tymoshenko’s narrative of a brutal regime that imprisoned and tortured her in the prelude to a rigged trial.

There was some speculation in Brussels that the EHCR would rule on the conviction Tuesday as well; that would have been a profound mistake, a nakedly political decision to expedite the ruling on this issue, and would have confirmed the worst fears of some Ukrainians that there could be no justice for Kyiv with the European Union.

There is another detail lost in all of this. Ukraine has once again made clear that once the court’s ruling is final, Kyiv will implement it. This is a victory for European values.

It is also a dangerous, if calculated, risk by Ukrainian President Viktor Yanukovych. Most Western reporting is caught in the Orange Revolution and so believes he fears a freed Tymoshenko more than anything. This is merely a reminder that most journalists do not fully grasp the subjects they cover.

The real risk to Yanukovych is not a woman with a 15 percent approval rating. It is that his willing submission of his government’s policy to European judgment will look weak and wrongheaded to hardliners in his party and to the country at large, where strength of will is still considered a vital governing attribute. Yanukovych is gambling that the benefits of Europe will be more attractive than the fear of loss of national strength.

This likely seemed trivial to most of the media reporting this story. It is instead a reminder that Ukraine is dedicated to Europe, no matter the cost.

Image Copyright European Court of Human Rights