Correction: This article has been changed to clarify that Skadden attorneys were unable to determine, given the evidence they reviewed, that there were political motivations behind Yulia Tymoshenko’s claims of selective prosecution. Additionally, the article now contains comments by Skadden attorney Gregory Craig.
Former Ukrainian Prime Minister Yulia Tymoshenko’s legal rights were violated during her 2011 abuse-of-power trial, a team from Skadden, Arps, Slate, Meagher & Flom concluded following an investigation sponsored by the Ukranian government.
However, the team found that some of Tymoshenko’s grievances were unfounded given the evidence it reviewed.
“As we say in the report, with regard to some of Tymoshenko’s claims, we found very serious problems in the conduct of her trial,” Skadden partner Gregory Craig, one of the lead attorneys on the team, said. “With regard to other claims, we found insufficient evidence in the record to support the objections.”
Craig and his team took particular issue with Tymoshenko’s lack of counsel during portions of the trial, which likely would not pass muster in American courts.
“Under Western standards, Tymoshenko’s lack of counsel at critical stages of her criminal trial likely constituted a violation of her due process rights,” the team said it in a 303-page report.
The Ministry of Justice commissioned eight Skadden attorneys led by partner Gregory Craig, former White House counsel to President Obama, to conduct the investigation. The report was dated in September but was made public on December 13.
The case reflected a bitter political dispute between Ukranians who prefer to align with the West—represented by Tymoshenko—and other, predominantly Russian-speaking Ukranians, who favor close ties to Russia.
Tymoshenko served as prime minister for eight months during 2005 and from December 2007 through March 2010. In April and May 2011, she was charged with abuse of power for her involvement in negotiations for natural gas contracts between Ukraine’s state-owned gas company and its Russian counterpart. In October 2011, she was found guilty, sentenced to seven years in prison and barred from holding public office for an additional three years. Twice Tymoshenko appealed the outcome in the Ukrainian courts and twice was snubbed. The case is now pending before the European Court for Human Rights.
The Skadden team investigated eight due-process claims raised by Tymoshenko: that she lacked adequate time to mount a defense; that the judge was not impartial and was improperly selected; that she was improperly denied a trial by jury; that her removal from the courtroom at mid-trial was improper; that she was improperly jailed during the trial; that she was denied an adequate opportunity to present her defense; and that she was the victim of selective prosecution.
The Skadden attorneys said they found treatment that would constitute violations of due process in Western courts, including the court’s decision not to allow the defense to call certain witnesses but to permit other witnesses to testify while Tymoshenko was without counsel.
Tymoshenko went through six defense attorneys throughout the trial—and went without counsel for several days, including July 15, 2011, when she was removed from court when she voiced her objections to the proceedings.
“Despite her repeated attempts to move for adjournment in order to find counsel and for entry of new counsel, Tymoshenko was without defense attorneys for more than three days of trial in July 2011,” the report says. “During this time, cross-examination of sixteen prosecution witnesses took place, including several individuals who professed to have knowledge of the circumstances surrounding the acts that constituted the abuse of power with which she was charged.”
It continues: “Without legal representation, Tymoshenko, who is not a lawyer, was unable to fully question and examine witnesses, or to object to statements made or evidence introduced by the prosecution—thus undermining the ‘equality of arms’ between the prosecution and the accused that is necessary to a fair trial.”
However, some of the conclusions went against Tymoshenko. Her challenges to the court’s legitimacy likely would have warranted sanctions and contempt charges in Western courts, the report said. And although a Western court have would likely given Tymoshenko more time to prepare her defense, an appeals court likely would not have found violations of due process.
However, that would not have justified her continued detention following the trial and before sentencing, the team concluded.
“Through detailed analysis and a focus on the evidence, the report addresses critics, who have challenged the legal process and also the conviction, based on Yulia Tymoshenko’s claims that the prosecution was politically motivated and that her human rights have been abused,” the Ministry of Justice said in a written statement. “This report…concludes as groundless Yulia Tymoshenko’s claims that her prosecution was politically motivated and states that she has provided no factual evidence that would be sufficient to overturn her conviction under European or American standards.”
One of Tymoshenko’s defense attorneys, Sergei Vlasenko, could not be reached for comment, but told The New York Times that the report was biased and that the Skadden attorneys “are not independent lawyers.”
“We insisted on absolute independence and total access,” Craig said in the statement. “We got both.”
Other Skadden attorneys who worked on the report include partners Clifford Sloan and Margaret Krawiec and associates Allon Kedem, Alex van der Zwaan, Alex Haskell, Paul Kerlin and Kara Roseen. With the exception of van der Zwann, all the attorneys work in the firm’s Washington office.
Contact Matthew Huisman at firstname.lastname@example.org.