FIFTH SECTION

Application no . 65656/12 Yuliya Volodymyrivna TYMOSHENKO against Ukraine lodged on 10 August 2011

STATEMENT OF FACTS

1 . The applicant, Ms Yuliya Volodymyrivna Tymoshenko, is a Ukrainian national who was born in 1960 and lives in Kyiv. She is represented before the Court by Mr S. Vlasenko, a lawyer practising in Kyiv.

A. The circumstances of the case

2 . The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Background to the case

3 . The applicant is the leader of the “Batkivshchyna” political party and of Yulia Tymoshenko ’ s Bloc.

4 . From 24 January to 8 September 2005 and from 18 December 2007 to 11 March 2010, the applicant exercised the function of Prime Minister of Ukraine. Before becoming the Prime Minister, she co-led the Orange Revolution and openly criticised the then rival presidential candidate Victor Yanukovych.

5 . At the parliamentary elections in 2006 Yulia Tymoshenko ’ s Bloc prevailed in 14 regions in the country and polled 22.27% nation-wide.

6 . At the 2007 parliamentary election Yulia Tymoshenko ’ s Bloc polled 30.71% throughout Ukraine and obtained 156 seats (out of 450) in Parliament.

7 . The applicant was the main o pponent of the president Victor Yanukovych at the presidential election held in January 2010. In the second round of the election she obtained 45.47% votes, while Yanukovych obtained 48.95%. As she is currently serving a seven year prison sentence, she was excluded from the parliamentary election in October 2012.

2. Criminal proceedings brought against the applicant

8 . On 11 April 2011 a senior investigator of the Prosecutor General ’ s Office (hereinafter “the PGO”) instituted criminal proceedings against the applicant on suspicion of involvement in excess of power or office under Article 365 § 3 of the Criminal Code. The First Deputy Prosecutor General of Ukraine was in charge of the investigation department and of the PGO. The latter considered that the applicant had committed a crime by having ordered the head of State enterprise “Naftogaz of Ukraine” (hereinafter “Naftogaz”) to sign an agreement with the Russian enterprise “Gazprom” on importing natural gas at a price of USD 450 per 1,000 cubic metres. The applicant ’ s complaint against the institution of the proceedings were dismissed by the Pechersk District Court (hereinafter “Pechersk Court”) on 16 May 2011.

9 . On 16 April 2011 the First Deputy Prosecutor General of Ukraine said to the Inter TV channel that “all the actions of the Ukrainian side to sign the contract were unlawful” .

10 . On 20 April 2011 a travel ban was adopted as a preventive measure with respect to the applicant.

11 . According to the applicant, during the trial leading State officials noted that she should “prove her innocence in court” .

12 . On 27 April 2011 the judge at the Pechersk Court announced that the applicant had been indicted. The indictment was approved by the First Deputy Prosecutor General. According the applicant, the announcement was made in the absence of her defence counsel who was admitted to work on the case only on 10 May 2011. She also says that all the preceding investigative steps had been carried out without the participation of any defence counsel.

13 . On 22 May 2011 the PGO applied for restriction of the time that the applicant and her defence counsel had to familiarise themselves with the file. On 23 May 2011 the Pechersk Court granted the motion allowing the applicant the time until 25 June 2011 to study the case file. According to the applicant, a law setting up a limit to the time allowed for studying case-file entered into force on 8 April 2011. Actually, the law allowed the investigators to request the court to limit the time the accused person had to familiarize herself with the case file (the CCP adopted in 1960 prohibited any limitation in this respect).

14 . On 24 May 2011 a senior investigator in the PGO read out an order to institute a criminal case against her. He refused to explain the content of the accusation he had read under Article 140 of Code of Criminal Procedure (hereinafter “the CCP”) , but agreed to read it once again.

15 . On 25 May 2011 the pre-trial investigation was officially completed and the applicant was given 15 working days to read the case-file, during which time she was called almost daily to attend the PGO for questions in connection with two other criminal cases. The case-file at that time comprised some 4,000 pages in 15 volumes. The applicant managed to copy 10 volumes. According to her, a law setting up a limit to the time allowed for studying case-file entered into force on 8 April 2011. During the pre-trial investigation prosecutors heard 75 prosecution witnesses but no witnesses for the defence.

16 . Between 25 May 2011 and 2 June 2011 the applicant ’ s defence counsel were called daily to attend the PGO, except for the weekends, so they could read the case file from 9 am to 6 pm, only inside the prosecutor ’ s office. On 26, 27 and 30 May 2011 the counsel read the case file comprising 15 volumes using photographic equipment.

17 . On 7 June 2011 judge K. set a time limit for the applicant ’ s study of case file until 16 June 2011. The decision was made without the presence of the applicant or her counsel who was, therefore, granted nine days to read 14 volumes of 250 pages each, totalling about 3,500 pages. Moreover, the judge did not take into account that a week earlier a time limit to study a case file in another criminal case (Kyoto Protocol funds) had been limited until 25 June 2011. Moreover, from 25 May to 5 June 2011 the applicant and her defence counsel had bee daily called to attend the investigator in that case. The applicant ’ s complaint against this decision was rejected on 15 June 2011 by the Kyiv Court of Appeal.

18 . On 17 June 2011 the investigator dismissed the applicant ’ s requests for further investigation of the case and submitted the case file to the Pechersk Court for trial. On the same day, the President of Ukraine declared in a press conference that he wished the applicant to “prove her innocence.”

19 . On 24 and 25 June 2011 judge K. held a preliminary hearing. He rejected the applicant ’ s motion under Article 16 § 2 of the CCP that he should withdraw from the examination of the case. The applicant argued that his career was dependent on her political rivals and therefore he objectively lacked independence in the trial. Moreover, as a judge in his initial five-year term, judge K. was subject to the disciplinary jurisdiction of the High Council of Justice whose members included the Prosecutor General and his Deputy. She further submitted that he had been appointed to hear the case on the basis of Decree no. 489/2011 of President of Ukraine of 20 April 2011, i.e. in violation of the national procedure requiring the use of an automated random-appointment system. The applicant ’ s representative requested a record of random appointments from the automated case management system but no such record was provided by the court. The applicant filed a complaint with the High Council of Justice about the judge ’ s impartiality but her complaint was rejected.

20 . On the same day the applicant requested that her case be dealt with by a jury under Article 127 of the Constitution but judge K. refused to grant her request. The hearing held on 24 June 2011 started at 9.08 am and ended at 5.52 pm.

21 . The hearing held on the following day started at 10.03 am and lasted until 10.53 pm. The court-house was surrounded by three or four “circles” of police and access roads around them were blocked. Up to 1,000 police officers were on duty. Many people were not let into the courtroom including members of the parliament, diplomats and the press. At a later stage, judge K. revoked his initial agreement to videotape the proceedings without giving any reason. The hearings were held in very small rooms where only 20 – 25 persons could be present.

22 . At the hearing of 29 June 2011 the applicant informed the court that she had not received the indictment and asked for additional time to study her case-file. She referred to Article 254 of the CCP according to which she should be given no less than three days to become familiar with the indictment and sufficient time to study the case-file. The hearing started at 10.04 am and ended at 10.48 am.

23 . On the same day, the court accep ted the power of attorney of Mr Tytarenko who began to defend the applicant together with her first lawyer, Mr Vlasenko.

24 . At the hearing of 4 July 2011 Mr Tytarenko challenged the continuation of the hearing claiming that the three day minimum period to become familiar with the indictment had not expired. He also claimed that he had joined the applicant ’ s defence team only recently and had not had enough time to study the case-file. He further stated that in the absence of Mr Vlasenko, who was on a business trip, he could not effectively defend the applicant in court. The court granted one day and a half to study the case-file which contained 4,000 pages. The hearing started at 10.05 am and was closed at 11.32 am.

25 . The proceedings were resumed on 6 July 2011. Mr Tytarenko asked again for an adjournment of the hearing s ince Mr Vlasenko was still on a business trip. However, the court denied his motion. The applicant was ordered to leave the courtroom as judge K. found that she had conducted herself improperly, and the hearing continued without h er. It began at 10.03 am and ended at 5.11 pm.

26 . On 7 July 2011 the applicant submitted a new request to discharge judge K. from the case claiming that he had systematically violated the CCP. In particular he had rejected all the applicant ’ s requests in breach of domestic law, he had not given the defence sufficient time to prepare their case and he had personally been biased against the applicant. Her request was rejectedby judge K.. The hearing started at 10.02 am and was closed at 4.01 pm.

27 . At the beginning of the hearing of 8 July 2011 Mr Tytarenko submitted a motion for an adjournment due to his physical exhaustion after long daily court sessions and nightly preparations of the defence. The hearing began at 10.02 am and closed at 12.15 pm. Judge K. rejected his request and on 11 July 2011 Mr Tytarenko refused to defend his client. Judge K. therefore revoked his power of attorney and rendered a separate decision on his improper behaviour. The hearing started at 10.02 am and ended at 4.24 pm.

28 . The hearing scheduled for 15 July 2011 was held in the absence of the applicant ’ s lawyers. According to the applicant, the court did not discuss the appropriateness of carrying out the hearing without her lawyers. The applicant submitted a motion that Mr Plachotnyuk be recognised as her new legal representative but the court refused to consider it, since the applicant had not stood to submit the motion. She was subsequently warned about her improper behaviour in the court, in particular, her refusal to stand up when judge K. entered the courtroom. The applicant was removed from the courtroom on the grounds that she had behaved disrespectfully towards judge K. The hearing started at 9.03 am and finished at 3.41 pm.

29 . On 18 July 2011 judge K. revoked the pow er of attorney of Mr Vlasenko on the grounds of his systematic failure to comply with the decisions of the court and his disrespect towards the court. On the same day, he authorised two new lawyers, Mr Siryi and Mr Plachotnyuk, to defend the applicant. They filed a motion to discharge judge K. from the case due to his several violations of the Constitution, the CCP, the rules of advocacy and the principle of equality of arms. They referred to judge K. ’ s failure to deal with the applicant ’ s request filed on 15 July 2011 concerning her legal assistance. Judge K. rejected their motion. Upon their further motion, the lawyers were given with three days to study the case-file, the hearing having been adjourned until 22 July 2011. The hearing started at 11.01 am and lasted until 6.07 pm.

30 . The proceedings continued on 22 July 2011 at 9 am. Judge K. read out the indictment. He did not explain to the applicant or her counsel the content of the charge. At 4 pm Mr Siryi asked for a break as the defence team had used their lunch break for consultation with the applicant and that they had no time for a rest. Judge K. rejected the motion. The hearing was closed at 9.11 pm.

31 . At the hearing of 25 July 2011 Mr Plachotnyuk submitted a motion to consider his other commitments when scheduling court hearings in the applicant ’ s case which had made it impossible for him to be present at successive hearings. Judge K. dismissed his motion and continued the hearing in the lawyer ’ s absence. On the same day Mr Siryi complained about the lack of confidentiality when he discussed different issues with the applicant concerning her case, since they were constantly surrounded by guards in the courtroom who looked at the lawyer ’ s notes and listened closely to his conversations with the applicant. He requested that the number of police officers in the courtroom be reduced to two. He also asked for minimal guarantees to respect the CCP. Judge K. rejected his request. Mr Plachotnyuk complained that, in breach of the CCP, the court had not reviewed numerous requests submitted by the defence. The hearing started at 11.05 am and closed at 6.30 pm.

32 . At the hearing of 26 July 2011 the applicants ’ lawyers claimed that it was impossible for them to defend the applicant efficiently as they did not have sufficient time to study the case-file due to the scheduling of court hearings which prevented them from preparing their pleadings, consulting the applicant and collecting evidence. The applicant therefore refused their services and the court revoked their powers of attorney. In a separate decision, it recommended that the Kyiv City Qualification and Discipline Commission for Advocates adopt disciplinary measures in respect of both of them.

33 . The applicant requested that the hearing be adjourned in order to find a new lawyer. However, the court dismissed her request and continued the proceedings, hearing four prosecution witnesses in the absence of her legal representatives despite her insistence on proper legal assistance in such important matters. The hearing lasted from 11.05 am to 5.30 pm.

34 . At the hearing of 27 July 2011 the applicant requested the adjournment of her case for three days, arguing that she needed time to find new lawyers. Her motion was rejected. She also asked for judge K. to be disqualified due to his systematic violation of her rights to legal assistance. Judge K. dismissed her request. Despite the absence of legal representatives of the applicant, the court heard four prosecution witnesses. The hearing started at 11.01 am and ended on 6.54 pm.

35 . The hearing of 28 July 2011 started at 10.03 am. The applicant requested the court to accept Mr Vlasenko and Mr Rodgers as her representatives. The court declined her request. The court heard seven prosecution witnesses in the absence of the applicant ’ s lawyers despite her requests for legal assistance. The hearing was closed at 7.08 pm.

36 . At the hearing of 29 July 2011 the applicant requested a three-day adjournment to find a new legal representative. The court did not grant her request. It continued its examination of prosecution witnesses, hearing four of them. Having opened at 10.19 am, the hearing was closed at 4.33 pm.

37 . On 1 August 2011 a new lawyer, Mr Sukhov, began to defend the applicant. He requested an adjournment for two days in order to study the case-file. The court decided to postpone the consideration of his request until all prosecution witnesses had been heard. Mr Sukhov filed a motion for the disqualification of judge K. whose previous decision was alleged to be in breach of national law. Judge K. dismissed the lawyer ’ s motion and continued the examination of the prosecution witnesses. At the end of the hearing the court allowed the applicant ’ s lawyer two days to study the case-file. The hearing started at 10.07 am and ended at 6.12 pm.

38 . Between 26 July and 1 August 2011, when the applicant had no legal assistance, there were 25 witnesses of the prosecution heard.

39 . At the hearing of 4 August 2011 , which started at 10.04 am, Mr Sukhov requested additional time to read the case-file and to listen to audio recordings of the witnesses ’ statements. Having left his motion undecided, the court continued hearing the prosecution witnesses. The hearing was closed at 8.02 pm.

40 . The hearing of 5 August 2011 started at 9.00 am. The applicant was late and her counsel asked for a half-hour break. The applicant arrived seven minutes later. The court resumed the hearing at 9.30 am. The applicant attended and explained to the court that she was late due to her exhaustion. The previous hearing had ended at 8:02 pm the day before and she had had to prepare for the next hearing late at night.

41 . The court informed the parties and the public that it had received the defence motions for adjournment in order to allow it to read the case-file, to examine witnesses and collect evidence, and a motion for disqualification of judge K. The court dismissed the second motion and decided to consider the outstanding motions after the cross-examination of the prosecution witnesses. Mr Sukhov asked for an adjournment, claiming that he had not been able to read any materials from the case-file in the time between the court hearings. His motion was rejected.

42 . During the hearing, judge K. heard the current Prime Minister, Mykola Azarov. The applicant ’ s questions were almost all dismissed by the judge, but allegedly made the witness overtly nervous and upset. After having interviewed this witness, a representative of the PGO requested the judge to detain the applicant on the ground that she had obstructed justice and demonstrated her disrespect to judge K. and those who participated in the hearing. One of the reasons was that that the applicant refused to call the judge “Your Honour”. The PGO ’ s request was granted and the applicant was immediately arrested. The hearing was closed at 3.59 pm.

43 . Between 8 and 23 August 2011 the court held eight hearings which lasted between four and a half and ten hours.

44 . During one of these hearings the applicant ’ s lawyer requested the court to order the company “Naftogaz of Ukraine” to provide certain financial documents relating to the damage caused by the applicant. The motion was rejected. The defence also asked for eighteen witnesses to be heard; the court ordered the hearing of two of them. Judge K. also heard only 2 out of the nine experts in the area of gas-transportation requested by the applicant. In addition, he refused orally, without reasoning, further applicant ’ s requests for the supplement of evidence, including key evidence, namely the original of the contract signed on 19 January 2009 which allegedly incriminated the applicant.

45 . The hearings held on 23, 25 and 26 August and 1, 2, 6, 7, 8 and 12 September 2011 were held in the absence of the applicant ’ s defence counsels or some of them.

46 . The trial was adjourned until 27 September 2011. The hearings of 27, 28 and 29 September 2011 were held in the applicant ’ s defence counsels or some of them. At the hearing of 30 September 2011 the Pechersk Court did not allow the applicant the time to prepare her last word, thus depriving her of this right.

47 . In a judgment of 11 October 2011 the Pechersk Court found the applicant guilty as charged and sentenced her to seven years ’ imprisonment and imposed a three year prohibition on exercising public functions. During the announcement of a guilty verdict, only “pre-selected” journalists were allowed into the courtroom.

48 . The court found that the applicant acted maliciously, for her own interest, being aware of the unsoundness and groundlessness of the requirements of the Russian side during the negotiations between her and the officials of the Russian Government and “Naftogaz” and “Gazprom”.

49 . The Pechersk Court stated, inter alia , that:

“The day of 1 January 2009 was the expiring date of the contract concluded between the NJSC ‘ Naftogaz of Ukraine ’ and company RosUkdrEnergo AG for the supply to Ukraine of the natural gas in 2008 at the price of USD 179.5 per 1,000 cubic metres and the rate of transit of the natural gas through the territory of Ukraine at USD 1.7 per 100 km.

During the period from 1 to 17 January 2009 the Russian side did not supply to Ukraine the natural gas for the transit to the European consumers. The Ukrainian gas transportation system operated in the reverse mode, i.e. the gas was supplied to the consumers in the East of Ukraine from the gas storage facilities located in the West.

On 17 January 2009 [the applicant] arrived in Moscow as the Head of the Ukrainian Governmen t delegation to participate in ... negotiations. She met personally the high officials of the Russian Government and management of OJSC ‘ Gazprom ’ . During the meeting the representatives of the Russian side noted that ‘ Gazprom ’ intended to supply gas to Ukraine at the price under the special formula with the basic level of USD 450 per 1,000 cubic metres.

During the meeting of 18 January 2009, upon the [applicant ’ s] return from Moscow, president Yushchenko V.A., considering Ukrainian gas inventory at the time which could satisfy the needs of Ukrainian consumers, ordered to continue the negotiations ... on terms acceptable for Ukraine.

However, [the applicant] wishing to take advantage of the critical situation after the expiring of the contract on 1 January 2009 ..., and the cessation of the delivery of gas to Ukraine and its transit to the European countries, acting maliciously and for her own interest, being aware of unsoundness and groundless of the requirements of the Russian side ... on the higher cost of the natural gas for Ukraine with the transit rate unchanged; wishing to create for herself a positive image of an efficient leader of the State who managed to settle the ‘ gas crisis ’ in relations with the Russian Federation on the eve of the presidential election in Ukraine, she agreed to the unfavourable terms for Ukraine and by all means, including through abuse of power, ensure the signature of a purchase contract between ‘ Naftogaz of Ukraine ’ and ‘ Gazprom ’ , as well as a contract of transit of natural gas through the territory of Ukraine for the period 2009-2019, having to irresponsible attitude toward the consequences of her actions and causing thereby material damage to the State.

[The applicant] had the experience of work in the Cabinet of Ministers of Ukraine and occupying the position of the Prime Minister she understood well that subject to Article 117 of the Constitution of Ukraine the Cabinet of Ministers of Ukraine shall, within the scope of its powers, issue mandatory resolutions and orders. At the same time, under paragraph 6(1)(6) of the Rules of the Cabinet of Ministers of Ukraine, draft directives shall be considered during the Cabinet meetings; and paragraph 46(2) (as in force in January 2009) the Cabinet of Ministers of Ukraine shall issue the orders on approval of directives.

Nevertheless [the applicant], contrary to Articles 19, 114 and 117 of the Convention of Ukraine; Article 44 of Act on the Cabinet of Ministers of Ukraine no. 279-VI of 16 May 2008 (as amended); and paragraphs 6 and 46 of the Rules of the Cabinet of Ministers of Ukraine of 18 January 2009, acting voluntarily, ... drew up and ordered the persons unidentified by the investigation to print the ordinance documents, i.e. Prime Minister ’ s directives ... to the delegation of NJSC ‘ Naftogaz of Ukraine ’ for negotiations with OJSC ‘ Gazprom ’ on conclusion of the Contract of purchase of the natural gas for the period of 2009-2019, and the Contract on the volume and terms of transit of the natural gas through the territory of Ukraine for the period of 2009-2019.

These directives contained the key tasks for the Ukrainian delegation.

...

[The applicant] was well aware of the fact that according to the statute and Law of Ukraine on Economic Ent ities, Naftogaz of Ukraine is a self-contained economic entity and she, as the Prime Minister of Ukraine, has no right to interfere in its activity and give any instructions regarding the conclusion of contracts in conducting of its business. She also understood that the terms she had set forth in the directives were disadvantageous and unacceptable for Ukraine with potential damages to the State.

Upon the preparation of the directives ... [the applicant], further abusing her power and authorities, approved those directives and affixed the seal of the Cabinet of Ministers of Ukraine to them.

Realising the illegality of her actions and wishing to shift to the Cabinet of Ministers of Ukraine the responsibility for the approval of the directives which contained the provisions clearly unfavourable for Ukraine in terms of the price of the natural gas and the rate of transit services, she gave a copy of the directives to the First Deputy Prime Minister of Ukraine ... to approve them by the Cabinet of Ministers of Ukraine on 19 January 2009.

During the meeting of the Cabinet of Ministers on 19 January 2009 the members expressly refused to support the unfavourable directives, ... the First Vice Prime Minister therefore did not put to the vote the draft resolution ... which was suppose d to approve the directives ...

Being perfectly aware that the Cabinet of Ministers of Ukraine had refused to support the directives and, acting intentionally, being conscious that the terms she had set forth in the directives ... were inacceptable and economically disadvantageous and could cause damage to the State, on 19 January 2009 [the applicant], ..., abusing her powers and authority, knowing she acted unlawfully, ... at about 5 pm. after the Chairman of the Board [of ‘ NJSC Naftogaz of Ukraine ’ ] had refused to sign the [contracts] ..., instructed him to sign the contracts and handed the mandatory directives. [She] misled him by saying that the directives had been approved earlier on 19 January 2009 by the order of the Cabinet of Ministers of Ukraine.

Regarding the directives signed by [the applicant] as mandatory, the chair of the board of Naftogaz ... s igned the Contract no. KP of 19 January 2009 between NJSC ‘ Naftogaz of Ukraine ’ and OJSC ‘ Gazprom ’ for the supply of gas. His first deputy ... signed the Contract no. TKGU of 19 January 2009 for the volume and terms of transit of the natural gas through the territory of Ukraine for the period of 2009-2019.

Signing and implementation of the Contracts ... on the basis of the directives ... caused severe damages to the State ... expressed in higher expenditures on the purchase of the imported process gas in the volume of 3,639 billion cubic metres needed to ensure the normal operation of the gas transmission system for the transit of the Russian gas through the territory of Ukra ine for the total amount of USD 194,625,386.70 or UAH 1,516,365,234.94 – the amount of damages exceeding the tax-free minimum income of Ukrainian citizens by 250 times.”

50 . At trial, the applicant stated that in Kyiv on 19 January 2009, upon the request of the chairman of NJSC “Naftogaz of Ukraine”, she had issued a stand-alone instruction to the Minister of Fuel and Energy of Ukraine and, as an annex to the instruction, she had approved the directives to the delegations of NJSC “Naftogaz of Ukraine” for negotiations with NJSC “Gazprom” on conclusion of the Contract of purchase of the natural gas for the period of 2009-2019. The directives had been approved only to formalise, as requested by the chair of the board of Naftogaz of Ukraine, the results of the negotiations with the Russian Government. The stand-alone instruction to the Minister of Fuel and Energy of Ukraine supported by the applicant ’ s directives was not a document of title or a regulatory legal act.

51 . The court further stated:

“[U]nder paragraph 9 of the Rules of the Cabinet of Ministers of Ukraine ... the Prime Minister of Ukraine was authorised, aiming at directing, coordinating and controlling the activity of the members of the Cabinet of Ministers of Ukraine, of the heads of other central bodies of the executive power, of the Council of Ministers of Autonomous Republic of Crimea and of the local state administration, to give instructions which the above bodies and individual were obliged to carry out. The instructions of the Prime Minister of Ukraine had to be put down in a form of an official document of the organisational and management character, on a special paper and in accordance with the specific form.

... [The applicant] confirmed to the court on a number of occasions that she had given the authorisation ... in the form of directives and is of the opinion that her authorisation could have had any name or external understanding. ...

The court cannot agree with these conclusions. ... [T]he absence in the Rules of the Cabinet of Ministers of Ukraine of the type or form of the authorisation of the Prime Minister of Ukraine does not mean that [the applicant] ... could infringe the requirements of Article 19 of the Constitution of Ukraine and take decisions beyond the scope of her authority and in a way not provided for in the Constitution of Ukraine and the laws of Ukraine, by issuing the directives, the grounds, the order and the way of adopting which are defined by the Rules of the Cabinet of Ministers of Ukraine ...

... The Directives ... approved [by the applicant] are not issued on the special paper and are addressed not to the members of the Cabinet of Ministers ... but to the delegation of the NJSC ‘ Naftogaz of Ukraine ’ .

The allegations of [the applicant] ... pertaining to the lack of the causal link between the issuance by of the Directives ... and the harm caused and her reference to the lack of damages of the NJSC ‘ Naftogaz of Ukraine ’ in 2009 are fully refuted by the evidence assessed by the court ...

The existence of the causal link between the illegal actions of [the applicant] and the damages is directly established by the combination of all the evidence submitted before the court, which prove that the conclusion of the contracts between the OSC ‘ Gazprom ’ and the NJSC ‘ Naftogaz of Ukraine ’ ... contradict the terms of the Agreement between the Cabinet of Ministers of Ukraine and the Government of the Russian Federation on additional measures on ensuring the transit of natural gas via the territory of Ukraine of 4 October 2001 ... and took place exclusively due to the illegal, personal actions of [the applicant] related to the issuance and approval of the Directives to the delegation of the NJSC ‘ Naftogaz of Ukraine ’ for the negotiations with the OJSC ‘ Gazprom ’ ...

The allegations of [the applicant] and the defence to the effect that the data incorporated into the analytical note attached to the report on compliance with the financial plan by the management of the NJSC ‘ Naftogaz of Ukraine ’ for 2009, adopted by decree of the Cabinet of Ministers of Ukraine on 29 December 2009 no. 1431, as well as the indicators of the consolidated financial reporting of the NJSC ‘ Naftogaz of Ukraine ’ , reflected in the report compiled in result of the audit by the CJSC ‘ Ernst and Young Ukraudit ’ prove that the expenses of the NJSC ‘ Naftogaz of Ukraine ’ on ensuring the transit of natural gas in 2009 are much lower than in 2008, which, in their opinion, fully evidences the absence of damages in the criminal case and acquits [the applicant], do not correspond to the circumstances of the case, as established in the course of the trial.

...

The language of Article 365 of the Criminal Code of Ukraine in which the characteristics of the crime are joined by the conjunction ‘ or ’ does not in any way influence their joint significance in formulating the charge. The arguments of the defence denying this constitute an unjustified interpretation.

In the light of these considerations, the court concludes that the witness statements and the information contained in the documents on which the defence relies, neither deny nor affect in any way the establishment of the circumstances of the crime, or the findings of the court pertaining to the guilt of the defendant and the qualifications of her actions.

Having assessed all the documents assessed in the course of the trail, the court is of the opinion that [the applicant] ... purposefully used her power and official authority to fulfil the criminal aims and resorted to the actions clearly reaching out of the scope of her rights and authority which has caused severe consequences. Accordingly, she has committed a crime under Article 363 § 3 of the Criminal Code of Ukraine.”

52 . In deciding on the sentence, the Pechersk Court noted that due to the social danger of the crime committed, the applicant ’ s personality and absence of any repentance, it did not see any reason to punish her less strictly than as provided for by the law. In its decision, the court only dealt with the evidence taken in the course of the proceedings, but it did not address the procedure in any respect.

53 . On the same day, the court adopted an order against Mr Siryi for non-fulfilment or improper fulfilment of his defence obligations.

54 . The applicant challenged the first instance judgment before the Kyiv Court of Appeal. She substantiated her appeal by claiming tha t this was a politically motivated criminal prosecution of her person as a politician in opposition, that the conviction was unsubstantiated and that the court had been responsible for significant violations and incorrect application of the relevant norms. She further submitted that the pre-trial investigation and trial violated Articles 5 and 6 of the Convention. She claimed that she had been removed from the courtroom without sufficient grounds thereby deprived of her right to be present at the hearing.

55 . The applicant further challenged the rulings adopted by the trial judge against her legal representatives, which negatively affected her defence rights. These can be summarised as follows:

- a ruling of 11 July 2011 against Mr Tytarenko for improper fulfilment of his obligations;

- two rulings of 18 July 2011 against Mr Vlasenko for non-fulfilment of orders of the trial judge, contempt of court, reflected in statements and explanations to the court during the review of the criminal case, and non ‑ fulfilment of his defence obligations;

- two rulings of 26 July and 11 Octobe r 2011 against Mr Siryi for non ‑ fulfilment or improper fulfilment of his defence obligations;

- a ruling of 26 July 2011 against Mr Plakhotnyuk for improper fulfilment of his defence obligations; and

- a ruling of 22 August 2011 against Mr Tytarenko for improper fulfilment of his defence obligations.

56 . The lawyers disputed these rulings in their separate submissions as follows:

57 . Mr Tytarenko claimed that the facts in the ruling of 11 July 2011 did not correspond with the actual circumstances of the case. According to him, the court ’ s conclusions that he had refused to protect the defendant were not true as the court had not informed him about the time and place of the hearing, in consequence of which he could no t attend the hearing of 29 June 2011. Moreover, his right to familiarise himself with the materials of the criminal case comprising 16 volumes had been limited and he had therefore been unable to prepare for the case and to establish the legal position with the applicant. He had therefore informed her that he could not defend her.

58 . Mr Vlasenko maintained that the rulings of 18 July 2011 had been adopted in breach and incorrect application of national law. Moreover, the ruling had not been properly motivated and the facts therein had not corresponded to reality. In respect of the second ruling adopted on the same day, Mr Vlasenko found it illegitimate and without grounds.

59 . Mr Siryi argued that case materials had not contained his statement about the refusal to protect the applicant ’ s interests in court. Before the beginning of the hearing of 26 July 2011 the applicant had not submitted any application to dismiss him as legal counsel. He argued that he had been deprived of the possibility to familiarise himself with the criminal case and he had not been given enough time to prepare for participation in the hearing as the hearings had been carried out within one day. Moreover, the applicant ’ s refusal to allow him to act as legal counsel had not protracted the proceedings. In fact, after the applicant ’ s refusal had been accepted on 26 July 2011 the court had continued to deal with the case. He added that the ruling had not indicated any specific actions which could have been interpreted as a violation of court ruling. In respect of the ruling of 11 October 2011, Mr Siryi found it unlawful as not having corresponded to the actual circumstances of the case. He also maintained that the court had applied the law incorrectly and had significantly violated national law.

60 . In particular, he noted that the facts in the said ruling were already a subject of court reaction by the ruling of 26 July 2011 to which he had also appealed; therefore, he believes that nobody could be held liable twice for the same actions. In his opinion, the claims about his lack of reaction to the remarks and non-fulfilment of his lawful requirements were not true; not a single fact had been adduced to substantiate the ruling that he had abused the rights of legal counsel or disrupted the court session or to confirm the claim of contemptuous statements to the court or the systemic nature of his actions. He argued that the court had not indicated any specific case of disruption on his part during the court session. Besides, the motivation of the ruling had not made reference to any provision of the criminal procedure legislation or Rules of Legal Ethics.

61 . Mr Plakhotnyuk appealed against the ruling of 26 July 2011 which brought the attention of the head of Kyiv Regional Qualification and Disciplinary Bar Commission to his improper fulfilment of the obligations of legal counsel. He asked that the ruling be revoked as it had not corresponded to the facts of the case and had significantly violated the requirements of criminal procedure. He argued that it was the applicant who had refused him as legal counsel and not he himself who had refused to protect the applicant. The court ’ s conclusions did not correspond to the true facts. He also challenged as untrue the court ’ s conclusion that he had not used his right to familiarise himself with the materials in the criminal case.

62 . Mr Tytarenko appealed against the ruling of the Pechersk Court of 22 August 2011 which brought the attention of the head of Kyiv Regional Qualification and Disciplinary Bar Commission to his improper fulfilment of his obligations as legal counsel. He found this ruling to be unlawful and not to correspond to the actual circumstances of the case. Moreover, it had been adopted in significant violation and incorrect implementation of the criminal procedure norms. As legal counsel, he had not initiated a socially dangerous action which could have attracted criminal liability.

63 . On 10 November 2011 the automated system appointed judge H. as a judge-rapporteur (and also the presiding judge) in the appeal proceedings. On an unspecified day the applicant was informed that the preliminary hearing on appeal conducted by judge H. as provided for in Article 357 of the CCP was scheduled for 1 December 2011. However, it became known to the defence, on 30 November 2011, that judge H. had withdrawn herself and had, therefore, been replaced by judge S. who had not been selected on the basis of the random selection procedure as one of panel of three judges. Referring to the short time limit to study 17 volumes of the criminal case file (250 to 300 pages each) Judge S. had been allowed to study the case-file, the applicant filed a motion for the latter ’ s disqualification. This request was rejected by judge S.

64 . According to the applicant, the panel of three judges was entirely replaced one day before the hearing including judge F., the wife of one of the senior officials of the PGO who had supervised the investigation into the applicant ’ s case. The court did acknowledge this relationship but found no cause for concern.

65 . According to the applicant, three days before the appellate hearing the Deputy Prosecutor General said that the applicant was guilty of all the crimes she had been convicted of by the first instance court and that she had no chance of winning the appeal.

66 . On 23 December 2011 the applicant ’ s appeal against the judgment of the Pechersk Court was dismissed by the Kyiv Court of Appeal (hereinafter “the Court of Appeal”) . Apparently, the applicant ’ s lawyer was not present at the appellate hearing.

67 . In its reasoning, the Court of Appeal agreed with the first instance court ’ s conclusions on the merits of the case. The applicant ’ s arguments on lack of proper and admissible evidence proving her guilt and sufficiency of grounds to dismiss the case were found to be groundless. The appellate court stated that the judge was selected using an automated workflow system which assigned judge K. to this case.

68 . As to the alleged absence of defence at the pre-trial stage, the court pointed out that the applicant had appointed Mr Ferents as a lawyer and the investigation had been conducted in his presence. The charge sheet had been served on the applicant on 27 April 2011 in the presence of Mr Ferents, but the applicant and her lawyer refused to sign it. The court thus found no violation of law or the defence rights of the applicant at this stage.

69 . The court stated that it followed from the case file that the applicant and her defence counsel were not deprived of the right to become familiarised with the file if required and they were provided with the required time and facilities for preparation of defence. It added that during the trial the right of the applicant to invite and replace her defence counsel had been ensured. The removal of Mr Vlasenko on 18 July 2011 did not suggest any deprivation or restriction of the rights of the defence. The Court of Appeal found unsubstantiated and as not in violation of the defence rights the applicant ’ s claims concerning the long hearing and the fact that the first instance court had rejected some of his requests, including those for disqualification of the trial judge. The court further stated that questioning of additional witnesses is a right of the court, not an obligation and therefore rejecting to do so cannot be unlawful. It added that rest periods had been ordered in order to secure the normal course of the trial. And since evidence in the case met the requirements of admissibility, credibility and sufficiency, the court came to the conclusion that the trial was conducted in accordance with the CCP.

70 . On 29 August 2012 the Higher Specialised Civil and Criminal Court, having adjourned the hearing on a number of occasions, dismissed the applicant ’ s appeal in cassation. The court held, inter alia , that Article 365 of the Criminal Code was a provision of a general nature and that the lower courts had referred to the respective statutory acts when finding that the applicant ’ s action were criminal. Moreover, the court did not agree with the applicant ’ s lawyer Plakhotnyuk that the guilty verdict had been based solely on the evidence and testimonies of the prosecution witnesses, relying on the case file which had included testimonies of the experts and other documents on financial and economic activity of the private company, which had in the court ’ s view reasonably served as a basis for the applicant ’ s conviction.

71 . The Higher Specialised Civil and Criminal Court also disagreed with the applicant ’ s argument concerning the inadmissibility of certain evidence and the decisions adopted by the lower court and found unsubstantiated the applicant ’ s other procedural complaints, stating in this respect that, according to the case file, the applicant had been represented at the pre-trial stage and that it was in fact the applicant herself who had ignored the requests to appear before an investigator with an attorney.

72 . The court also rejected the applicant ’ s argument concerning the time for studying case file. It summarised the facts on this issue and stated that the applicant had artificially complicated the exercise of her right to defence and that the lower instances had correctly assessed the systematic actions of the applicant and her attorneys to delay the proceedings, for example, by declining the services of defence counsel and then filing for the appointment of the same counsel or by sending her defence counsel “on missions” to find evidence in her favour. According to the court, the applicant should have chosen a defence counsel who could give her case proper time and attention. Moreover, even without counsel, she had actively participated in the questioning of the witnesses during the trial. Relying on the Court ’ s case-law, the court stated that the applicant and her defence counsel had had the time and opportunity required for the proper preparation and organisation of the defence.

73 . Equally, the court confirmed that expelling the applicant from the courtroom for violating the proceedings and failure to comply with the orders of the presiding judge was l awful, as was the removal of Mr Vlasenko and Mr Tytarenko from the applicant ’ s defence team.

74 . As to the alleged lack of impartiality of judge K., the Higher Specialised Civil and Criminal Court came to the conclusion that his alleged bias was not proved by objective data.

75 . In respect of the absence of the applicant ’ s lawyer at the appellate hearing, the court pointed out that the applicant ’ s defence counsel had informed the Court of Appeal that they would not attend the hearing on 23 December 2011, which had led to the unambiguous conclusion that they had waived their right to be present in the appellate proceedings.

76 . As to the legal qualification of the charges against the applicant, the court stated as follows:

“Since Article 365 of the Criminal Code of Ukraine is provision with a blanket disposition while its particularised substance stipulates itemising corresponding provisions with the assistance of other statutory acts, the court in its judgment had correctly referred to the provisions of the Constitutio n, Cabinet of Ministers Act no. 279-VI of 16 May 2008 (in the wording effective in January 2009), the Rules of the Cabinet of Ministers approved by Regulation no. 950 of the Cabinet of Ministers adopted on 18 July 2007 and other statutory acts. ... [T]he court had accurately established ... in what exactly stay the serious consequences cause to the State and the present of the causal link between them and the unlawful action of [the applicant], as well as the extent of the caused damage ... “

77 . In summary, the Higher Specialised Civil and Criminal Court stated that the authorities which had taken part in the pre-trial investigation and the lower courts had not committed such violations of the criminal procedural law as would entail their unconditional reversal.

3. Reopening of the tax evasion case against the applicant

78 . On 20 October 2011 the Prosecutor General cancelled a decision taken in 2005 to close criminal investigation in a tax evasion case brought against the applicant, by whom she had been acquitted due to lack of evidence and the acquittal had been confirmed by the judgment of the Supreme Court. According to the applicant, he did not provide any explanation as to newly discovered facts or evidence.

4. Detention of the applicant

79 . The applicant was held in pre-trial detention in SIZO No. 13 in Kyiv from 5 August to 30 December 2011, when she was moved to the Kachanivska Colony in Kharkiv to serve her prison sentence.

80 . According to the applicant, since the beginning of her detention, she has been deprived of all possibility of communication with the outside world by the State Penitentiary Service.

81 . She has complained of severe pain in her back since October 2011.

82 . In connection with the applicant ’ s first case Tymoshenko v. Ukraine (no. 49872/11) the Court ordered to the Government under Rule 39 “to ensure that the applicant receives treatment appropriate to her complaints in an appropriate institutionalized setting” on 15 March 2012.

83 . On 9 May 2012 the applicant was transferred to the Central Clinical Hospital of the State Railway where she started medical treatment under the supervision of German neurologists.

84 . On 8 June 2012 the applicant brought an administrative action before the Kyiv District Administrative Court, which she further complemented on 31 August, 21 September, 17 October and 24 October 2012. The applicant requested the court i. to recognise as illegal the actions by officials of the State Penitentiary Service and of the Kachanivska Colony on the failure to fulfil her right to make telephone calls in accordance with Article 110 of the Criminal Code; ii. to oblige the State Penitentiary Service and the Kachanivska Colony to meet the requirements of Article 110 of the Criminal Code by providing her right to telephone calls including on the territory of the Central Clinical Hospital of the State Railway; iii. to recognise as illegal the actions of the officials of the State Penitentiary Service and the Ministry of Health on the dissemination of confidential information regarding her and the state of her health; iv. to prohibit the Ministry of Health and the State Penitentiary Service from disclosing confidential information regarding her and the state of her health in the future; v. to recognise as illegal the actions of the officials of the Kachanivska Colony and the Main Department of the Ministry of the Interior in the Kharkiv region of installing video cameras including hidden ones on the ninth floor of the Central Clinical Hospital of the State Railway and the video surveillance of the applicant; vi. to recognise as illegal the actions of the officials of the Kachanivska Colony of filming the applicant in the Central Clinical Hospital of the State Railway; vii. to order the Kachanivska Colony and the Main Department of the Ministry of the Interior in the Kharkiv region to cease surveillance and remove surveillance equipment that is located on the ninth floor of the Central Clinical Hospital of the State Railway where she was accommodated; viii. to recognise as illegal the actions of the officials of the Main Department of the Ministry of the Interior in the Kharkiv region in the implementation of public order, establishing barriers that impede the access of citizens to the ninth floor of the Central Clinical Hospital of the State Railway; and ix. to recognise as illegal the actions of the officials of the Kachanivska Colony in providing male security officers at the Central Clinical Hospital of the State Railway.

85 . In his submissions of 18 and 19 October 2012 the applicant ’ s representative informed the Court that his client ’ s treatment could not effectively continue in the Central Clinical Hospital of the State Railway where she had been and continued to be under permanent surveillance even while undergoing medical procedures. He also mentioned the applicant ’ s lack of trust in the medical staff in the hospital. He further submitted that despite the fact that the prison service had officially confirmed that video cameras in the applicant ’ s room did not record, a video tape was published on the Internet showing the applicant in her hospital room and during her medical procedures. The video tape was also broadcast on the majority of regional TV channels. According to him, it could only have been produced with the permission of the State prison service, in breach of the law and contrary to the ethical norms. The applicant ’ s representative states that the video tape is used to discredit the applicant and makes impossible any normal medical treatment and diagnosis elsewhere in Ukraine.

86 . In a judgment of 30 October 2012 the Kyiv District Administrative Court dismissed the applicant ’ s administrative application. In respect of the applicant ’ s allegation concerning the impossibility for her to make telephone calls, the court stated as follows:

“The defendant did not deny the fact that the applicant does not have the opportunity to make phone calls ...

Pursuant to Article 110 §§ 5 and 7 of the Code on the Enforcement of Sentences prisoners are entitled to unlimited telephone calls under the control of the administration.

Telephone calls are paid from the personal funds of the prisoners. Telephone conversations between prisoners who are held in prison are prohibited (Part 5). The procedures relating to visits and telephone calls are defined in regulations of the central penitentiary authority ... (Article 110 of the Code on the Enforcement of Sentences).

The Code on Enforcement of Sentences stipulates that the specific conditions for making telephone calls are to be defined by a legal act, approved by a competent executive authority.

The Internal Regulations of Penal Institutions were approved by Order no. 275 of the State Prison Department of 25 December 2003 ...

...

Under section 46 of the Order, the administration of an institution shall, if this is technically feasible, provide prisoners, under the control of the administration, with the opportunity to make telephone calls... For these telephone calls the prisoners must use an institution ’ s regular land line or set of payphones. The telephone calls are recorded in a special register.

Thus, a prisoner ’ s right to telephone calls is subject to considerations of time, scheduling and technical feasibility, as provided by the law developed under the Code on the Enforcement of Sentences. In addition, according to the defendant, in the hospital where the applicant is detained there is no technical possibility to install a phone by which [she] can communicate under the control of a representative of the administration. Providing a telephone connection without such control is contrary to the requirements of the Code of the Enforcement of Sentences.

The court finds the defendant ’ s argument to be correct in that the applicant, having the status of a prisoner, is detained outside the colony. The court concludes that it is the fact that the applicant has been given the possibility of residing outside the colony which has resulted in her inability to make use of certain rights granted by the Code of Enforcement of Sentences, since the exercise of such rights depends on the location and conditions where they can be provided.

However, the Code refers to the territory of the colony and to control by the administration, something which is technically impossible in the hospital which is not a penitentiary institution ...”

87 . I n response to the applicant ’ s complaint about the unlawfulness of the video surveillance at the hospital, the court ruled as follows:

“According to Article 103 of the Code of the Enforcement of Sentences, the administration of the colony may use audiovisual, electronic and other technical equipment to prevent escapes and other crimes and violations of legally established procedures of detention, and to obtain necessary information about the behaviour of inmates. The administration of the colony shall inform prisoners about the use of equipment for surveillance and control. A list of surveillance and control equipment and the protocol for their application are determined by regulations of the central executive body of penitentiaries.

The panel of judges considers that this legal provision permits video surveillance of convicts, which is one of the measures of detention and control of a convict ’ s behaviour. Such restrictions on the rights of the sentenced persons are directly stipulated by the Code of the Enforcement of Sentences.

The plaintiff ’ s references in the court proceedings to surveillance by male security officers during the medical procedures and to surveillance with recorded camera images have not been proved. In this regard, the panel of judges has taken into account the expert opinion dated 22.10.2012, No. 26, according to which the file ‘ Тимошенко в больнице.flw ’ [1] , ..., was not recorded on video-tape.

This being so, the panel of judges reaches the conclusion that the actions of the defendants by means of video surveillance were legal.

With regard to the video surveillance carried out by the Main Department of the Ministry of the Interior in the Kharkiv region, the court assumes that, given the location of the cameras set by the defendant, the plaintiff was not under video surveillance by the Ministry of the Interior in the Kharkiv region. The carrying out of video surveillance by this defendant with the purpose of is not in violation of the rights of the plaintiff and meets the requirements of the current legislation.

The Court concludes that the actions of the Main Department of the Interior in the Kharkiv region to set up barriers to impede the access of persons to the ninth floor of the STPI Ukrainian Railways Central Clinical Hospital does not violate the plaintiff ’ s rights, since the plaintiff ’ s freedom of movement is restricted because of her status as a sentenced person. ...”

88 . In connection with the applicant ’ s remaining allegations the court stated that:

“The court concludes that the actions of the Main Department of the Ministry of the Interior in the Kharkiv region in establishing barriers that impede the free access of persons to the ninth floor of the Central Clinical Hospital of State Railways does not violate the applicant ’ s rights, since her movements are restricted because of her status as a prisoner. ...

As to the presence of male security guards, the court found that, according to the documents provided by the defendant, male guards are on the floor near the door to the block of rooms in which the applicant ’ s room is located and where she receives treatment.

However, according to the explanations given by the officials, the applicant ’ s hospital room and the rooms where her procedures are conducted, have only female security guards.

The court concludes that the case file confirms the absence of any circumstances which would humiliate the applicant or infringe her reputation and dignity by reason of the presence of male security guards. The court concludes, from the security plans provided and from the explanations of the officials and the security guards, that the absence of the persons of opposite sex in the applicant ’ s hospital room has been proved.”

89 . In a letter of 11 January 2013 the applicant ’ s lawyer informed the Court that the Ukrainian authorities had published on the Internet, or at least permitted to be published, an audio recording of a telephone conversation between the applicant and her husband on the previous day. According to him, the audio recording contains both authentic and falsified elements and was intended to discredit the applicant as a politician and a person in the eyes of the international community. The audio recording contains, inter alia , the following:

“... [female voice]: Well, we are waiting for a judgment of the European Court.

This case ... you know why the European Court? Yes? There is a judge from Ukraine, Yudkivska. Her husband is in a clique with Kivalov. And, shortly, there they were persuaded and she took a maternity leave for four months. And, given that there they had to hear ... and they could not complete without her ... And, even when she was asked to show up for a half an hour, she did not come. Well, we will be working on it and the girl will yet cough up such filth. I think she will not probably be a judge of the European Court.

[male voice]: In the end ... the God sees everything there. My personally ...

[female voice]: Well, I think, we decided on how we will act [when I will come out, of course.] I think she will forget how it looks like – to be a judge of the European Court, with such standards of life, she didn ’ t yet grow up to it morally.

[male voice]: Yes ...

[female voice]: So, it was a delay due to this. Well, now this delay does not exist anymore. So, I think, we will receive this long awaited judgment. Well, the case is very complicated, you know. And it is very voluminous. This is not only about ‘ gas case ’ . So, time is needed for it to be reviewed, for all documents to collect. However, I think the judgment will come very soon. And after that, I will not stay here for even one day!”

90 . In a submission of 5 Febr uary 2013 the ap plicant complained that since 5 August 2011 she has been deprived of any possibility of communication with the outside world by the State Penitentiary Service. Despite her repeated motions to meet with the media and the latter ’ s requests to obtain permission to visit the applicant, the State Penitentiary Service deliberately and, according to her, illegally refused to grant her access to the media.

91 . In a submission of 27 February 2013 the applicant ’ s representative informed the Court that during a TV project entitled “The Dialogue With the Country” and broadcast on 22 February 2013 at 12:20 pm, the President of Ukraine Viktor Yanukovich expressed his opinion that the video cameras should be removed from the applicant ’ s room. He sent a message to the officials of the State Penitentiary Department that “if they heard him, he would like very much that they would do so”. On the same day, at 7 pm the State Penitentiary Service reported that the cameras had been removed.

92 . In a submission of 11 March 2013 the applicant ’ s representative complains that she is systematically filmed and that the video tapes are made public on the website of the State Penitentiary Service. She refers to three video tapes showing her meetings with the Governor of the Kachanivska Colony in the presence of her lawyers on 3 and 5 March 2013, during which her presence in the trial courts in Kharkiv and Kyiv concerning two different criminal cases brought against her was discussed.

93 . On 14 March 2013 the Kyiv Administrative Court upheld the judgment of the Kyiv District Administrative Court of 30 October 2012. In respect of the applicant ’ s claim concerning the impossibility for her to make telephone calls, the court stated as follows:

“... the Kachanivska colony administration had installed ... five payphones near the control room to ensure that convicted persons may exercise their right to phone calls. However, during her stay in the Colony, [the applicant] never exercised her right to phone calls nor she ever wanted to make phone calls from the payphones ...

The stay of convicted persons in hospitals operated by the Ministry of Health is regulated by the Rules of interaction in provision of medical care to convicted prisoners between medical institutions of the State Penitentiary Service and public health institutions approved by the Joint Order of the Ministry of Justice and the Ministry of Health of 10 May 2012, no. 710/5/343, registered by the Ministry of Justice on 15 May 2012 under no. 769/21082.

According to paragraph 2.7 of the Rules if a convicted person is admitted to a hospital, the administration of the penitentiary institution is to arrange for transportation of such convicted person to the hospital and round-the-clock custody of the convicted person throughout his treatment in a health facility on the indicative list, according to the regulations of the Ministry of Justice and the Ministry of Health.

Thus, the current law and regulations do not provide for arrangement of phone calls to convicted persons who stay in hospitals ... In addition, the Kachanivska colony administration lacks technical capacity to provide [the applicant] with the opportunity to make the telephone calls in the [Central Clinical Hospital of the State Railway].

In view of the foregoing, the [court of first instance] rightly found that the opportunity to stay outside the correctional institution provided to [the applicant] makes it also impossible for her to use certain other rights granted under the Code of the Execution of Sentences since their use depends on the location and conditions where such may be provided.”

94 . In respect of the applicant ’ s claim concerning the divulgation of the confidential information about her health, the court stated as follows:

“... the information regarding the health care provided to [the applicant] ... had been made public by [her] representative, with whom she continues to cooperate ... Issues concerning ... treatment of [the applicant] are subject of the discussion and consideration not only in Ukraine but also abroad, including the European Court of Human Rights, so the information as to the very fact and procedure of the health care constitutes the mass information in the light of the current legislation and may not be deemed confidential.

The defendants have never published any information concerning [the applicant] ’ s diagnoses, the finding of her examination or therapeutic interventions prescribed to her, no information disseminated to date contained any names or other attributes conducive to identifying [the applicant] ’ s disease.

...

Accordingly, the court of first instance reached the appropriate conclusion that the information as disseminated by the State Penitentiary Service and the Ministry of Health did not exceed the scope outlined before by the authorised representatives of [the applicant] and the journalists who had publicly provided the relevant coverage and comments on various aspect of [the applicant ’ s] health and her circumstances at the hospital. The information on which [the applicant] is relying in substantiation of her claim has been provided by the State Penitentiary Service and the Ministry of Health in response to the initial comments made by the [applicant] ’ s representatives in order to inform the public about the objective state of affairs, including in response to comments made by [the applicant] ’ s representatives.”

95 . In respect of the applicant ’ s complaint about the unlawfulness of the video surveillance at the hospital, the court ruled as follows:

“According to Article 103 of the Code of Enforcement of Sentences, the administration of a colony may use audiovisual, electronic and other technical means to prevent an escape and other crimes, breach of the legal procedure for service of punishment, and to obtain necessary information on the conduct of convicts. [It] shall inform the convicts about the use of surveillance and monitoring equipment. ...

...

In order to ensure the respect for the [applicant ’ s] rights, whenever doctors examine [her] in the ward, the CCTV cameras are covered, as evidenced by statements of medical staff in the case file. In the hospital rooms where therapeutic interventions are performed no cameras (including the disguised devices) have been installed, so that video surveillance of [the applicant] is not conducted there, CCTV cameras work in online mode only, and no video-recording is carried out.

No proof of [the applicant ’ s] allegations regarding surveillance being conducted during therapeutic interventions, by male staff, or storing of information acquired from surveillance cameras has been established during examination in court.

At the same time, the trial court had properly noted expert opinion of 22 October 2012 no. 26 whereby the file “Тимошенко в больнице.flv provided for expert examination by the State Penitentiary Service of Ukraine was shown not to have been recorded with the use of the DVR submitted for examination.

Given the above, the administration of Kachanivska Penal Colony ... did not violate the legislation in force while conducting the surveillance of [the applicant]; the first instance court having reached therefore an appropriate conclusion that the actions of the Kachanivska Penal Colony ... as regards the video surveillance at the State heath care facility Central Hospital of State Railway were legitimate.

As to the video surveillance conducted by the Main Department of the Ministry of the Interior of the Kharkiv region, the court notes the following.

As the court has found, the statutory territorial State-owned Association Pivdenna Zaliznytsia, in consultation with the administration of the medical institution, has provided six CCTV cameras for the purpose of monitoring public order and the performance of the duty details on the eighth floor of the hospital, three of such cameras mounted in the hall way beside the room of the convicted person, another one in the lobby – pointing at the exit from the elevator, one in the pantry, one in the station where the prison guards are posted – to be able to monitor their duty.

These cameras are mounted according to the layout developed and approved by the heads of the Main Police Department in Kharkov region and Kachanivska Penal Colony on 8 May 2012, and the scheme approved by the Head of the Main Police Department in Kharkiv region on 14 May 2012.

The CCTV are used in order to provide a speedy response to potential perpetrations public areas of the hospital, monitor the movement of convicts during their stay at the hospital and the legality of acts of the prison service staff and police officers in the line of their duty.

... The video surveillance is used to support the tasks and functions of the public order maintenance that are imposed on the police, and do not violate the rights of the [applicant].

Such actions of ... the Main Department of the Ministry of the Interior in Kharkiv region comply with the requirements of the current legislation, e.g. Article 2 of the Militia Act which defines the basic tasks of the police, including personal safety of citizens, protection of their rights, freedoms and legitimate interest, crime prevention and control, maintenance and protection of public order.

Furthermore, section 4.2 of Decree of the President of Ukraine of 28 March 2008 no. 276 on additional activities to ensure the rights and freedoms of the man and the citizen, public order and strengthen the fight against crime instructs the Ministry of the Interior to take measures to reduce response time to crime by means of technical equipment for surveillance of situation in public.

Thus, these cameras in question have been mounted and used in compliance with and pursuant to the legislation in force in order to fulfil the tasks entrusted to the police.

According to the Main Department of the Interior in the Kharkiv region related to the installation of barriers to control the traffic of visitors on the ninth floor of the State Clinical Hospital of the State Railway does not violate the [applicant] ’ s rights as she is restricted in movement due to her status of a convicted person. ...

96 . In connection with the applicant ’ s remaining allegations the court stated that:

“Regarding the fact that the [applicant] is guarded by male security personnel, it is found that the male staff, according to the documents provided by the defendants, are posted on the floor near the entrance to the block where the room in which the applicant is staying and treated is located.

According to the explanations provided by the officials, the applicant ’ s room and the rooms where therapeutic interventions are attended only by female personnel.

Thus, neither the materials in the case file nor the explanations provided by the representatives of the defendant prove any violation of [the applicant] ’ s rights or humiliation of her honour and dignity in connection with male security personnel. The safeguarding schemes provided, the explanations of officials and guards alike show the absence of the opposite sex persons in the applicant ’ s room.

...”

97 . On 4 April 2013 the applicant challenged the judgment of the appellate instance before the Supreme Administrative Court where the case is still pending.

B. Relevant domestic law

98 . Constitution of Ukraine

Article 19

“International treaties in force, consented by the Verkhovna Rada of Ukraine as binding, shall be an integral part of the national legislation of Ukraine.

Conclusion of international treaties, contravening the Constitution of Ukraine, shall be possible only after introducing relevant amendments to the Constitution of Ukraine.”

Chapter IV concerns the Cabinet of Ministers of Ukraine and other executive authorities. It includes, inter alia , the following provisions:

Article 114

“The Cabinet of Ministers of Ukraine shall be comprised of the Prime Minister of Ukraine, the First Vice-Prime Minister, Vice-Prime Ministers and Ministers.

The Prime Minister of Ukraine shall be appointed by the Verkhovna Rada of Ukraine upon the submission of proposal by the President of Ukraine.

The candidature for the appointment as the Prime Minister of Ukraine shall be introduced by the President of Ukraine on the basis of a proposal of the coalition of deputy factions of the Verkhovna Rada of Ukraine fo rmed in compliance with Article 83 of the Constitution of Ukraine, or of a deputy faction comprising the majority of the people ’ s deputies of the constitutional membership of the Verkhovna Rada of Ukraine.

The Minister of Defence of Ukraine and the Minister of Foreign Affairs of Ukraine shall be appointed by the Verkhovna Rada of Ukraine upon the submission of proposal by the President of Ukraine, whereas other members of the Cabinet of Ministers of Ukraine shall be appointed by the Verkhovna Rada of Ukraine upon the submission of proposal by the Prime Minister of Ukraine.

The Prime Minister of Ukraine shall manage the work of the Cabinet of Ministers of Ukraine and direct such work at the implementation of the Programme of Activity of the Cabinet of Ministers of Ukraine adopted by the Verkhovna Rada of Ukraine.”

Article 116

“The Cabinet of Ministers of Ukraine shall:

1) ensure the state sovereignty and economic independence of Ukraine, the implementation of domestic and foreign policy of the State, and the execution of the Constitution, laws of Ukraine, and acts of the President of Ukraine;

2) take measures to ensure human and citizen rights and freedoms;

3) ensure the implementation of financial, pricing, investment, and taxation policy; the policy in the areas of labour and employment, social security, education, science and culture, environmental protection, ecological safety, and exploitation of natural resources;

4) develop and implement national programmes of economic, scientific and technical, social and cultural development of Ukraine;

5) ensure equal conditions of development of all forms of ownership; effect management of the state property in accordance with law;

6) elaborate a draft law on the State Budget of Ukraine, ensure the implementation of the State Budget of Ukraine approved by the Verkhovna Rada of Ukraine, and submit a report on its implementation to the Verkhovna Rada of Ukraine;

7) take measures to ensure the defence potential and national security of Ukraine, public order, and fight against crime;

8) organise and ensure realization of foreign economic activity of Ukraine and the customs practice;

9) direct and co-ordinate the work of ministries and other executive authorities;

9-1) form, reorganise, and liquidate in compliance with law, Ministries and other central executive authorities, acting within the limits of funds allocated to the maintenance of executive authorities;

9-2) appoint to and remove from the office chief officers of central executive authorities not included in the Cabinet of Ministers of Ukraine, upon the submission of proposal by the Prime Minister of Ukraine;

10) exercise other powers determined by the Constitution and laws of Ukraine.

Article 117

“The Cabinet of Ministers of Ukraine shall, within the limits of its competence, issue directives and resolutions mandatory for execution.

Acts of the Cabinet of Ministers of Ukraine shall be signed by the Prime Minister of Ukraine.

Regulatory legal acts of the Cabinet of Ministers of Ukraine, ministries and other central executive authorities shall be subject to registration in compliance with a procedure established by law.”

Chapter VIII concerns the justice. The relevant provisions read as follows:

Article 126

“The independence and immunity of judges shall be guaranteed by the Constitution and laws of Ukraine.

Any influence on judges shall be prohibited.

A judge shall not be detained or arrested without the consent of the Verkhovna Rada of Ukraine, until a verdict of guilty is rendered by a court.

Judges shall hold office for unlimited term, except for the judges of the Constitutional Court of Ukraine and judges appointed as such for the first time.

A judge shall be dismissed from office by the body having elected or appointed him in the event of:

1) the expiration of the term, for which he has been elected or appointed;

2) attaining the age of sixty-five;

3) incapability to exercise his powers for health reasons;

4) violation by the judge of requirements concerning incompatibility;

5) a breach of oath by the judge;

...”

Article 128

“The initial appointment of a professional judge to office for a five-year term shall be made by the President of Ukraine. All other judges, except for the judges of the Constitutional Court, shall be elected by Parliament for an indefinite term in accordance with the procedure established by law. ...”

Article 131

“The High Council of Justice shall operate in Ukraine. Its tasks shall comprise:

(1) making submissions on the appointment or dismissal of judges;

(2) adopting decisions with regard to the violation by judges and prosecutors of the requirements concerning judicial incompatibility;

(3) conducting disciplinary proceedings in respect of judges of the Supreme Court and judges of higher specialised courts, and the consideration of complaints regarding decisions imposing disciplinary liability on judges of courts of appeal and local courts and on prosecutors.

The High Council of Justice shall consist of twenty members. The Parliament of Ukraine, the President of Ukraine, the Assembly of Judges of Ukraine, the Assembly of Advocates of Ukraine, and the Assembly of Representatives of Higher Legal Educational Establishments and Scientific Institutions, shall each appoint three members to the High Council of Justice, and the All-Ukrainian Conference of Employees of the Prosecutor ’ s Offices shall appoint two members to the High Council of Justice.

The President of the Supreme Court, the Minister of Justice and the Prosecutor General shall be ex officio members of the High Council of Justice.”

99 . Cabinet of Ministers of Ukraine Act No. 279-VI indicated, in its version in force at the relevant time, powers and activity of the Cabinet of Ministers of Ukraine.

Article 44: Prime Minister of Ukraine

“1. Prime Minister of Ukraine:

1) manages work of the Cabinet of Ministers of Ukraine, sends activity of the Cabinet of Ministers of Ukraine to providing of realisation of domestic and external policy of the State, implementation of Program of activity of the Cabinet of Ministers of Ukraine approved by the Verkhovna Rada of Ukraine, and realisation of other plenary powers fixed on the Cabinet of Ministers of Ukraine;

2) coordinates activity of members of the Cabinet of Ministers of Ukraine;

3) brings in for consideration of Verkhovna Rada of Ukraine an idea about setting of members of the Cabinet of Ministers of Ukraine (except the Minister for Foreign Affairs of Ukraine and the Secretary of Defence of Ukraine), and also the Heads of the Antimonopoly Committee of Ukraine, Chairman of the State Committee of Television and Broadcast of Ukraine, Chairman of State Property Fund of Ukraine;

4) brings in for consideration of the Cabinet Ministers of Ukraine :

suggestions in relation to candidatures for assigning for position and dismissing chairmen of local state administrations and in relation to bringing to President of Ukraine of ideas about assigning for position or dismissing chairmen of local state administrations;

presentation in relation to candidatures for assigning for position and dismissing leaders of central executive bodies that does not enter in the complement of the Cabinet of Ministers of Ukraine;

presentation under the law in relation to candidatures for assigning for position and dismissing members of collective central executive bodies that does not enter in the complement of the Cabinet of Ministers of Ukraine;

an idea is about formation, reorganization and liquidation of ministries, other central executive bodies;

suggestions in relation to formation of governmental committees and them post composition;

5) forms the project of order of the daily meeting of the Cabinet of Ministers of Ukraine;

6) drums up meeting of Cabinet of Ministers of Ukraine and presides on them;

7) signs the acts of Cabinet of Ministers of Ukraine;

8) clamps a signature the acts of the President of Ukraine in the cases envisaged by points 5, 18, 21 and 23 parts of the first article of a 106 of the Constitution of Ukraine;

9) presents the Cabinet of Ministers of Ukraine in relationships with other organs, enterprises, establishments and organizations in Ukraine and after her limits;

10) enters into relationships with the Governments of the foreign States, negotiates and signs international agreements under the law and acts of the President of Ukraine;

11) brings in for consideration of the Cabinet Ministers of Ukraine of suggestion in relation to claim of chairmen of general intergovernmental commissions on questions a collaboration, that appear on the basis of the international agreements celled on behalf of the Cabinet of Ministers of Ukraine.

2. The Prime Minister of Ukraine can carry out other plenary powers envisaged by Constitution, by it and by other laws of Ukraine.

...”

100 . Rules of the Cabinet of Ministers (as in force at the relevant time)

Section 6 § 6

“1. At their meetings the Cabinet of Ministers shall consider ... drafts of governmental declarations, directives, letters, appeals and memoranda.”

Section 46 § 2

“The Cabinet of Ministers shall issue orders (edicts) concerning [the following] matters:

the approval of programs, agenda, concepts, strategies, key principles of implementation of state policy and other program papers of conceptual character, models of state target-oriented programs and laws, directives, governmental declarations, letters, appeals, declarations, memoranda etc.;

the formation and approval of composition of consultative, advisory, other subsidiary bodies and working groups;

the allocation of funds from the Reserve Fund of the State Budget;

the delegation of powers of the Cabinet of Ministers to central and local bodies of the executive;

the transfer of assets;

staff matters and other [administrative] matters.”

101 . Judicial System Act 2002 (in force until 30 July 2010)

Section 14. Independence of courts and judges

1. Courts administer justice independently. When administering justice, judges shall neither depend on any influence nor shall they be accountable to whatsoever authority; and they shall abide only by the law.

2. Guarantees of the independence of courts and judges are fixed by the Constitution of Ukraine, this Law and others laws currently effective in Ukraine.

3. State bodies and officials, local self-government authorities, their officials, also legal entities, citizens and their associations shall respect the independence of judges and not encroach upon it.

4. Courts shall not hear the cases submitted by the citizens, officials or institutions that are not the participants in the court proceedings pursuant to the law unless specified otherwise by procedural law.

5. Interference into administration of justice, influence upon a court or judges in any manner, contempt of court or against judges, collection, keeping, use and dissemination of the information in verbal, written or another form with the aim of damaging their authority and affecting the impartiality of justice shall be prohibited and legally liable pursuant to the law.

6. Judges are guaranteed the freedom of unbiased consideration of court cases pursuant to their personal convictions.

7. Independence of courts and judges shall be secured by the following:

special procedure of appointment, election, answerability and dismissal of judges;

permanent status of judges, immunity of judges;

procedure of administering justice, secrecy of making a court ruling in the manner prescribed by procedural law;

prohibition of interference into administration of justice;

legal liability for the contempt of a court or against a judge;

special procedure of funding, institutional, personnel, material, technical and information support of courts;

adequate material and social support of judges;

functioning of judicial self-administration authorities;

means of personal security of judges, protection of their families, property and other means of their legal protection set forth by the law.

8. When passing the new laws or amending the laws currently effective in Ukraine, it is prohibited to narrow the contents and scope of the guarantees of independence of courts, independence of judges and their legal protection specified by the law.

Section 20. The procedure for the setting up of courts

“ 1. Courts of general jurisdiction shall be established and dissolved by the President of Ukraine pursuant to this Law and as recommended by the Minister of Justice of Ukraine and agreed with the Chief Justice of the Supreme Court of Ukraine or with the chairman of a relevant higher specialized court.

...

4. The number of judges at courts shall be determined by the President of Ukraine on the basis of recommendations of the Head of Ukraine ’ s Judicial Administration agreed with the Chief Justice of the Supreme Court of Ukraine or with the chairman of a relevant higher specialized court in view of the suggested workload and within the limits of state budget allocations for maintenance of courts .

...”

Article 61. Appointment (election) of judges

1. The first appointment to the post of a professional judge for a term of five years shall be done by the President of Ukraine on the basis of the recommendation of a relevant judicial board of experts as proposed by the High Council of Justice. All other judges shall be elected for an unlimited period of time by the Verkhovna Rada of Ukraine on the basis of the recommendation of the High judicial board of experts of Ukraine as proposed by the Chief Justice of the Supreme court of Ukraine.

2. The procedure of submitting the proposals on appointment of judges to the posts is established by the Law on High council of justice”.

...

6. The reasons and procedure of removing a judge from a post, the conditions of legal liability, social protection and other issues of the status of judges are set forth by the Law “On the status of judges” in a with the Constitution of Ukraine.

102 . High Council of Justice Act of 15 January 1998 (as in force at the relevant time)

Article 1. Competence of the High Council of Justice

“The High Council of Justice shall:

1) submit proposals to the President of Ukraine as to appointment or dismissal of judges;

...”

Article 5. Membership of the High Council of Justice

“In accordance with the Constitution of Ukraine, the High Council of Justice shall be made of twenty members.

The Verkhovna Rada of Ukraine, the President of Ukraine, the Congress of Judges of Ukraine, the Congress of Advocates of Ukraine, the Congress of Representatives of Higher Legal Educational Establishments and Scientific Institutions shall each appoint three members, and the All-Ukrainian Conference of Employees of the Public Prosecutors ’ Office shall appoint two members of the High Council of Justice. The Chairman of the Supreme Court of Ukraine, the Minister of Justice of Ukraine, and the Procurator-General of Ukraine are ex officio members of the High Council of Justice.”

103 . Criminal Code of 5 April 2001 (as in force at the relevant time)

Article 364. Abuse of power or office

“ 1. Abuse of authority or office, namely the intentional use of authority or official position contrary to the official interests [of the State] by an official for financial gain or other personal benefit or the benefit of any third parties, where it causes substantial damage to legally protected rights, freedoms and interests of individual citizens, or to State and public interests, or the interests of legal persons...

2. The same act, if it causes any grave consequences ...

...”

Article 365. Excess of power or office

“1. Excess of power or office, namely the intentional commission of acts by an official which go manifestly beyond the scope of the rights and powers vested in him or her and which cause serious damage to the State or public interest or to the lawful interests, rights and freedoms of natural or legal persons

2. Excess of power or office accompanied with violence, use of weapons, or actions that caused pain or were derogatory to the victim ’ s personal dignity, however, with no elements of torture, shall be punishable by imprisonment for a term of three to eight years with the deprivation of the right to occupy certain positions or engage in certain activities for a term up to three years.

3. Any such actions as provided for by paragraph 1 or 2 of this Article, if they caused any grave consequences, shall be punishable by imprisonment for a term of seven to ten years with the deprivation of the right to occupy certain positions or engage in certain activities for a term up to three years. ”

104 . Code of Criminal Procedure (as in force at the relev ant time)

According to Article 16-2 a court shall have an automated case management system which shall provide for an objective and unbiased assignment of cases among judges. The purpose of the automated case management system is to have a judge in a criminal trial selected by random procedure to avoid “forum shopping” among judges, and appointing special judges who are not unbiased or independent.

Article 43. The accused and his/her rights

“... The accused has the right to ... become acquainted with all materials in the case file after the [conclusion of the] preliminary investigation or inquiry...”

Article 43 § 1. Suspect

“... The suspect has the right to ... request the review by a court or prosecutor of the legality of his detention, lodge complaints against the actions and decisions of ... the investigator...”

Article 46. Waiver of the defense counsel and his/her replacement

“The suspect, the accused and defendant, at any stage of criminal proceedings, may waive defence counsel who was employed or appointed. Such waiver is possible only upon initiative of the suspect, the accused or defendant and does not deprive him/her of the right to hire the same or any other defence counsel at other stages of the process.

The inquirer, investigator draws up a record of the waiver indicating reasons for the waiver while the court makes an entry thereof in its records. The inquirer, investigator takes a decision while the court passes a ruling on the acceptance or denial of the waiver of defence counsel.

The waiver of a defencse counsel in cases referred to in Article 45 of the present Code may be accepted when the suspect, the accused, defendant, convict or the acquitted substantiates it with motives which, in the opinion of the inquirer, investigator, court, are valid. In such a case, the defence counsel is replaced with another one as prescribed in the fourth paragraph of the present Article. After a decision to dismiss the defence counsel from the duties of his office in the case set out in Article 50 of the present Code as well after a decision to accept defence counsel ’ s refusal to discharge his official duties, the inquirer, investigator, judge or court advises the suspect, the accused or the defendant of his/her right to hire another defence counsel and gives him therefore,, at the stage of pre-trial investigation, at least one day and at least three days at the stage of trial ...”

Article 48. Rights and duties of a defence counsel

“... From the moment of his entry into the case, counsel for the defendant has the right:

...

1. to have a confidential meeting with the suspect or the accused prior to the first examination and thereafter further meetings without limitation of their number and length;

...

3. to become acquainted with the materials which substantiate the detention of a suspect or choice of preventive measure or indictment, and, after the [conclusion of the] pre-trial investigation, with all materials in the case file.

...

5. to use scientific-technical means in the conduct of investigative actions with defence counsel ’ s involvement, as well as when reviewing records of the case - upon consent of the inquirer, investigator and in court, if the case is tried in open court, - upon consent of the judge or court;

6. to participate in court sessions;

7. to put questions in court to the defendants, victims, witnesses, and also to the expert, specialist, claimant or respondent, and to participate in the examination of other evidence;

8. to produce evidence, submit petitions and disqualifications, express his opinion about petitions of other participants to trial in court session, challenge actions and decisions of the inquirer, investigator, prosecutor and court;

...

10. to review court session record and submit comments thereto;

...

13. to collect information on facts which can be used as evidence in the case, request and obtain documents or copies thereof from citizens and legal persons; review, at enterprises, institutions, organizations, citizens ’ associations, required documents save those whose confidentiality is protected by law; obtain experts ’ written opinions on issues which require special knowledge; poll citizens.

Defence counsel is required to appear to participate in the conduct of procedural actions when his/her involvement is mandatory. Whenever he is unable to appear in time fixed, defence counsel shall have the duty to inform in advance the inquirer, the investigator, the prosecutor and court thereof and to give the reasons for his/her absence.”

Article 54. Circumstances precluding judge ’ s participation in the trial

“A judge cannot examine the criminal case if:

...

4. there are other circumstances which generate doubts about his/her neutrality.”

Article 57. The way in which a disqualification is considered.

“Disqualification of a judge or people ’ s assessor is considered by other judges without the judge whose disqualification is proposed. The judge to be disqualified may provide explanations with regard to disqualification. In case of a tie vote, the judge concerned is considered to have been disqualified.

Decision on the disqualification is taken in the retiring room. Proposed disqualification of two judges or the whole trial bench of the court is considered by the whole bench by simple majority of votes.

In the event of satisfaction of the application to disqualify a judge who tries a case alone, the case is considered in the same court by another judge who tries the case in compliance with procedure prescribed by paragraph 3 of Article 16-2 of this Code.

In case of submitting a motion for disqualification of a judge, the court is obliged to listen to a person whose disqualification was requested and to parties of the trial. The motion for disqualification shall be decided in a retiring room by decision of a court which is considering the case. Proposed disqualification of two judges or the whole trial bench of the court is decided by the whole bench by simple majority of votes. ...”

Article 218. Informing the accused on the completion of investigation and presenting him/her records of the case

“Having found collected proof sufficient to lead to an indictment and having complied with Article 217 of the present Code, the investigator is required to announce to the accused that the investigation in his/her case has been completed and that he has the right to review all records of the case personally and with assistance of a defence counsel and that he/she may file a petition to supplement the records of the pre-trial investigation. The investigator shall have the duty to advise the accused of his right to file a petition for his case to be heard in trial court by a single judge or collegially by a panel of three persons in those cases provided for by law. If the accused was not interested in reviewing records of the case together with defence counsel, all records of the case are presented to the accused for review. When reviewing records of the case, the accused may take notes from records of the case and file petitions. ... The fact that completion of the investigation has been announced to the accused and that records of the case have been produced for his/her review is reflected in the appropriate record.

If a defence counsel is involved in the case, the investigator gives him the possibility to read all records of the case and draws up an appropriate record. In such a case, producing records of the case should be postponed until defence counsel is appointed ... but not more than for three days. If the defence counsel employed by the accused is unable to appear within this time-limit, the investigator takes the measures referred to in Article 47, fourth and sixth paragraphs of the present Code.

Records of pre-trial investigation which are produced for review should be filed and numbered. While producing records of pre-trial investigation, the investigator shall, upon the accused ’ s request, hand him a notarized copy of the records on the criminal case, which is stated in the records on the completion of investigation and presenting him/her records and his defence counsel of the case. Records relating to protective measures in respect of participants to criminal proceedings are not presented for review and are kept separately from records of the criminal case.

The accused and his defence counsel may not be limited in the time they need to review all records of the case.”

Article 286. Establishing the person of the defendant and the time when a copy of the indictment has been served to him/her

“The court establishes the person of the defendant by finding out his last name, first name, and patronymic; year, month, day, and place of his birth; place of residence, occupation, family status, and other information relating to the person of the defendant.

Thereafter, the presiding judge asks the defendant whether and when he has been served with a copy of the indictment and, in the cases referred to in Article 27, first paragraph, of the present Code, a copy of the complaint, the decision to institute criminal proceedings and summons.

If the said documents have not been served to the defendant or have been served within less than three days before trial in court session, hearings of the case should be postponed for three days while these documents are compulsorily submitted to the defendant for review.

In instances when the said documents were not served to the defendant in due time, the case may be tried in court session only upon defendant ’ s request.”

Article 357. Preliminary consideration of a case by the court of appeals

“In case of need, the court of appeals may hold preliminary consideration of the case.

Preliminary consideration of the case is conducted in court session by a single judge with necessarily required participation of the prosecutor. Other participants to trial may be cited in court session but their non-appearance does not preclude trial of the case.

Preliminary consideration of the case starts from the report of a judge who informs participants to trial on grounds underlying preliminary consideration of the case. Prosecutor and other participants to trial express their views with regard to issues submitted for consideration. The judge takes his/her decision in the retiring room. After preliminary consideration of the case has been completed, the court may take one of the following decisions on:

1) issues related to preparation of the case for appeal trial;

2) dismissal of the appeal;

3) suspension of proceedings in the case;

4) remanding the case to trial court concerned.

A record is kept during preliminary consideration of the case if appropriate.”

105 . Code on the Enforcement of Sentences 2003

Article 103 . Technical means of surveillance and control

“1. The administration of a colony has the right to use audio, visual, electronic and other technical means in order to prevent escape and other crimes by inmates, breaches of the prison rules, or in order to obtain necessary information about the behaviour of inmates.

2. The administration of a colony shall inform inmates about the use technical means of surveillance and control.

3. The list of technical means of surveillance and control and the procedure for their use shall be established by regulations of the [Prisons Service of Ukraine]. ...”

Article 110

“...

5. Inmates shall have the right of telephone communications under the control of the administration without limitation on their quantity. The telephone communications shall be covered by the personal funds of he convicted persons. The telephone communications between the inmates, who are in prisons, shall be prohibited.

...

7. (as amended by the law of 16 October 2012) ” The procedure for granting meetings and telephone communications [to the inmates] shall be defined by the normative acts of the Ministry of Justice of Ukraine.”

Version before the amendments:

“The procedure for granting meetings and telephone communications [to the inmates] shall be defined by the normative acts of the State Department of Ukraine for the Enforcement of Sentences.”

106 . Code of Administrative Justice of 6 July 2005 (in force from 1 September 2005)

Article 2. Role of the administrative justice system

“1. The role of the administrative justice system shall be the protection of the rights, freedoms and interests of physical persons and the rights and interests of legal entities in the field of public-law relations from violations by public authorities ...

2. Any decisions, actions or inaction on the part of public authorities may be appealed against to the administrative courts, except for cases in which the Constitution and laws of Ukraine provide for a different procedure of judicial appeal against such decisions, actions or inactivity ...

3. In cases where the decisions, acts or inactivity of a public authority are being challenged, the courts shall review whether [the impugned decisions and acts] have been adopted or taken:

...

(6) reasonably;

...

(8) proportionately, in particular, by ensuring a necessary balance between any possible unfavourable outcome for an individual ’ s rights, freedoms and interests and the aims the impugned decision or action seeks to achieve;

...”

Article 6. The right to judicial review

“1. Everyone has a right to apply to the administrative courts, in accordance with the procedure envisaged by this Code, if he or she considers that his/her rights or interests are breached by a decision of a public authority, or its actions or inactivity. ...”

Article 8. The rule of law

“1. When considering a case, a court shall be governed by the principle of the rule of law, which provides, in particular, that a human being and his or her rights and freedoms shall be the highest social value and shall determine the essence and orientation of the activity of the State.

2. A court shall apply the principle of the rule of law by taking into account the case-law of the European Court of Human Rights. ...”

Article 17. Jurisdiction of administrative courts in deciding administrative cases

“1. The jurisdiction of the administrative courts shall cover legal relationships arising in the course of the exercise of public administrative powers by ... public authorities and [legal relationships arising] in the course of the public formation of a ... public authority by way of an election or referendum.

2. The jurisdiction of the administrative courts shall cover public-law disputes, in particular:

(1) disputes between physical persons or legal entities and ... public authorities concerning the decisions of the latter (normative legal acts or legal acts of individual effect), or their actions or inactivity;

...”

107 . Pursuant to Article 117, an adm inistrative court may suspend a disputed decision by way of applicat ion of an interim measure, on a party ’ s own initiative. This measure may be applied if there exists a real danger of harm to the plaintiff ’ s rights, freedoms and interests, or if there are grounds to believe that the failure to apply the measure would render impossible the protection of such rights, freedoms and interests or would require considerable efforts and expense for their restoration. It can also be applied if it is evident that the contested decision is unlawful.

108 . Article 118 establishes that the plaintiff ’ s motion for securing an administrative claim is considered by the court no later than the next day after its filing with the court and when grounded and immediate must be decided upon immediately, notifying of the plaintiff and other litigants not being required. The motion on amending or cancelling measures for securing an administrative claim should be decided upon by the court no later than the next day after its filing with the court or immediately when the demand is grounded and immediate, notifying of the plaintiff and other litigants not being required.

109 . According to Article 162 of the Code, the administrative court, should it find an administrative claim substantiated, may (amongst other things) declare the impugned action, omission or decision unlawful, invalidate the decision in question and/or oblige the defendant to undertake, or abstain from taking, certain actions. It may also order the defendant to pay compensation for the damage caused by the unlawful action, omission or decision.

C. Relevant documents of the Council of Europe

110 . Resolution no. 1862 (2012) of Parliamentary Assembly of the Council of Europe :

“T he Assembly considers that Articles 364 and 365 of the Criminal Code are overly broad in application and effectively allow for ex post facto criminalisation of normal political decision making. This runs counter to the principle of the rule of law and is unacceptable.”

111 . Statement of the President of the Parliamentary Assembly and co-rapporteurs on 29 August 2012

“The Assembly has stated on several occasions that her conviction in the gas case amounts to the criminalisation of normal political decision-making. Given the many questions that have been raised with regard to the Court proceedings that led to her conviction, we – as well as many other friends of Ukraine – had expected that the Court of Cassation would accept her appeal.

President Yanukovich has made it clear to the co-rapporteurs that he would be ready to intervene in this case if her appeal was rejected by the Court of Cassation. We therefore call upon him to keep his word without delay in order to resolve the issue of the imprisoned former government members. These cases should not be allowed to overshadow the upcoming elections.”

112 . Report on the Relationship between political and criminal ministerial responsibility of the Venice Commission (adopted at its 94 th Plenary Session, Venice, 8-9 March 2013)

“99. The greatest challenge, both in principle and sometimes also in practice, is the fact that government ministers in many countries are subject to very wide and vague provisions on criminal sanctions for ‘ abuse of office ’ , ‘ misuse of powers ’ , ‘ excess of authority ’ or similar expressions. Such provisions typically apply to all public officials, both civil servants and politically appointed ministers and junior ministers, and they may be problematic in relation to both categories. But as regards ministers, the special problem is that they may be particularly open to misuse by political opponents for political purposes.

100. Criminal provisions prohibiting ‘ abuse of office ’ , ‘ misuse of powers ’ , ‘ excess of authority ’ or similar offences are to be found in a number of European legal systems, and the Venice Commission recognises that there may be a perceived need for such general clauses, which may cover the many various forms of grave offences that public officials may commit, and which it is not easy to regulate in detail in advance. At the same time, the Commission holds that such blanket criminal provisions are deeply problematic, both with regard to the qualitative requirements of Article 7 of the ECHR and other basic requirements under the rule of law, such as predictability and legal certainty, and that they are also particularly vulnerable to political misuse ...

...

102. On this basis the Venice Commission considers that national criminal provisions on ‘ abuse of office ’ , ‘ excess of authority ’ and similar expressions should be interpreted narrowly and applied with a high threshold, so that they may only be invoked in cases where the offence is of a grave nature, such as for example serious offences against the national democratic processes, infringement of fundamental rights, violation of the impartiality of the public administration and so on. They should be related only to the exercise of public power, and to the extent possible it should be defined to what sorts of actions they refer, either in the statutes themselves, in the preparatory works or through relevant case law by the courts, ombudsmen and other institutions. Furthermore additional criteria should be required, such as for example a requirement of intention or gross negligence. For cases of ‘ abuse of office ’ or ‘ excess of authority ’ involving economic interests a requirement of intent of personal gain, either for the person concerned or for example a political party, may also be considered appropriate. Finally the minimum and maximum penalties of such ‘ blanket ’ provisions should be moderate, and should be below the penalty ranges provided by more specific offences, like for example corruption.

103. When interpreting and applying provisions on ‘ abuse of office ’ , ‘ excess of authority ’ against government ministers (in contrast to non-elected officials) the special nature of politics should also be taken into account. Actions that may not be proper for an ordinary civil servant may sometimes be a legitimate part of ministerial political decision-making. Furthermore a government minister is subject to political responsibility, which ordinary officials are not. To the extent that criminal provisions on ‘ abuse of office ’ , ‘ excess of authority ’ is invoked against ministers for actions that are primarily of a political nature, then this should only, if at all, be done as the last resort ( ultima ration ). Furthermore the level of sanctions should be proportional to the legal offence committed, and not influenced by political considerations and disagreements.

104. The Venice Commission holds that the responsibility not to misuse provisions on ‘ abuse of office ’ against incumbent or former ministers for political reasons falls upon both the political system and the national prosecutor and courts, and regardless of whether the minister is charged under special rules of impeachment or under ordinary criminal procedures.

V. Conclusions

105. The Venice Commission considers that the ability of a national constitutional system to separate and distinguish political and criminal responsibility for government ministers (past and present) is a sign of the level of democratic well-functioning and maturity as well as the respect for the rule of law.

106. Criminal proceedings should not be used to penalise political mistakes and disagreements. Political actions by ministers should be subject to procedures for political responsibility. Criminal procedures should be reserved for criminal acts.

107. At the same time, the Venice Commission considers that government ministers should not be exempt from legal punishment, unless covered by clearly defined and limited rules on immunity. ...

...

109. The Venice Commission considers that as long as the charges brought against a minister are of a ‘ criminal ’ nature, according to Article 6 of the ECHR, the same basic requirements apply both to ordinary criminal procedures and special impeachment procedures. These cover the rights to a fair trial under Article 6, including proper rights of defence, presumption of innocence, the independence and impartiality of the judiciary, as well as the principle of ‘ no punishment without law ’ in Article 7, which includes such qualitative principles as legal certainty and predictability.

...

114. The Venice Commission therefore holds that provisions on ‘ abuse of office ’ , ‘ misuse of powers ’ and similar blanket provisions should be interpreted narrowly and applied with a high threshold. Additional criteria should be required, such as for example intention or gross negligence, and stricter definitions should be sought, either in the text of the law or through case law. For cases involving economic interests a requirement of intent of personal gain, either for the person concerned or for example a political party, may also be appropriate. The penalties for such blanket provisions should be moderate, and should be below the penalty ranges provided by more specific offenses, like for example corruption.

115. The Venice Commission also holds that when applying provisions on ‘ abuse of office ’ against government ministers the special nature of politics should be taken into account. To the extent that such provisions are invoked against actions that are primarily of a political nature, then this should only, if at all, be done as the last resort ( ultima ratio ). The level of sanctions should be proportional to the legal offence, and not influenced by political considerations and disagreements.”

COMPLAINTS

113 . Under Article 6 § 1 of the Convention the applicant complains that her right to a fair trial was violated because the case was not heard by an independent and impartial tribunal established by law. She notes that the trial was held by a biased judge, K., who was transferred to hear this case in violation of the national procedure requiring use of the automated random-appointment system. The purpose was to deal with the trial in a politically expedient manner. The applicant ’ s representative requested a record of random appointments from the automated case management system, but no such record was provided by the court. The judge ’ s career was dependent on the applicant ’ s political rivals and therefore he objectively lacked independence in this trial. The unnecessary and improper actions of judge K. demonstrated his bias towards the applicant. Thus, for example the applicant ’ s detention in custody after 5 August 2011 hearing was a petty revenge for her refusal to call the judge “Your Honour” and for arriving seven minutes late that day.

114 . Equally, in the appellate proceedings the case was eventually heard by judge S. because judge H., who had initially been selected by the automated system, withdrew herself one day before the preliminary hearing. Judge S. was selected in violation of the random selection procedure, as had occurred in the first instance court. Judge S. took part in the dismissal of all the motions filed by the applicant on that occasion, although she had had just one day to study 17 volumes of the case file (250 to 300 pages each). The applicant filed a motion for her disqualification but this request was rejected in part by judge S. herself.

115 . The applicant further mentions that the brother of the Prosecutor General was the judge and the Vice-President of the High Specialised Court which dealt with her case as the last instance.

116 . Under Article 6 § 1 of the Convention, the applicant complains that her right to a public hearing was violated. An y restriction on the right to a public hearing must not only fall within one of the specified grounds, it must also be fully justified. She refers to Shagin v. Ukraine (no. 20437/05, 10 December 2009, § 20) in which the public was excluded for 10 months of the trial. The Court underlined the importance of a public hearing in the first instance of criminal proceedings ( idem , § 59) and stated that in cases of high interest to the public, exclusion of the public had to be based on accordingly substantial and weighty reasons (§§ 61 and 63).

117 . In the instant case, the court-houses were surrounded by three or four “circles” of police and access roads around them were blocked. Up to 1,000 police officers were on duty. Many people were not let into the courtroom including members of the parliament, diplomats and the press. Judge K. revoked his initial agreement to videotape the proceedings without giving any reason. Hearings at the Pechersk Court were held in very small rooms where only 20 – 25 persons could be present. During the announcement of the guilty verdict, only “pre-selected” journalists were allowed to enter the courtroom.

118 . Relying still on Article 6 § 1 of the Convention, the applicant further complains that her right to be present at the hearing was violated. She says she did not waive her right to be present during the trial or during the appellate proceedings. And yet, she and her counsel were frequently excluded from the court sessions without any proper justification. She wanted to be present at the appellate hearing because of the high number of procedural flaws which had taken place at first instance.

119 . The applicant complains under Article 6 § 2 of the Convention that she was not presumed innocent until proved guilty. During her trial leading State officials noted that the applicant should “prove her innocence in court” , the Deputy Prosecutor General stated on the Inter TV channel on 16 April 2011 that “all the actions of the Ukrainian side on signing the contract were unlawful” . Moreover, three days before the appellate hearing, he stated that the applicant was guilty of all the crimes, that she had been convicted at first instance and that she had no chance of winning the appeal.

120 . Relying on Article 6 § 3 (a) of the Convention the applicant submits that her right to be promptly informed of the nature and grounds for the accusation against her was breached. She maintains in this respect that the senior investigator of the PGO did not explain the content of the accusation he had read at the opening of the trial on 24 May 2011 as he was obliged to do by domestic law. Even judge K. was not able to explain either to the applicant or her counsel what the content of the charge was.

121 . Under Article 6 § 3 (b) of the Convention, she complains about the lack of sufficient time to prepare her defence. He refers to Öcalan v. Turkey in which the defence had 20 days to examine 17,000 pages which led to the finding of a violation of the Convention, and to Iglin v. Ukraine (no. 39908/05, 12 January 2012, § 70–73) in which the applicant had only four days to examine the file before a hearing at the Higher Specialized Court of Ukraine.

122 . In her case, the case file consisted of about 4,300 pages (app. 100 transcripts of interrogations, 360 hours of audio-recorded statements). The applicant and her lawyer had only 15 days to study them in May 2011. The applicant also argues that on several occasions, she had no legal assistance and had to represent herself. Her own knowledge of the file was therefore essential for her defence. However, the court never granted any extra time to the applicant to study the file.

123 . Invoking Article 6 § 3 (c) of the Convention, the applicant complains that her right to an adequate defence was violated due to the long hearings before the first instance court and the constant close presence of the guards. She also complains that the court arbitrarily revoked the powers of attorney of her lawyers and that the lawyers who replaced them had inadequate time to study the case-file. She refers in this respect to S. v Switzerland (no. 12629/87 and 13965/88, 28 November 1991, § 48) in which the Court stated: “If a lawyer was unable to confer with his client and receive confidential instructions from him without such surveillance, his assistance would lose much of its usefulness, whereas the Convention is intended to guarantee rights that are practical and effective” .

124 . Relying on Article 6 § 3 (d) of the Convention the applicant further complains that she was denied the possibility to examine the witnesses for defence. During the pre-trial investigation 75 prosecution witnesses were heard but none of the witnesses for defence. During the trial, only two out of 30 witnesses proposed by the defence w ere heard. Moreover, between 26 July and 2 August 2011 the applicant had no legal assistance when the court, which had rejected her request for adjournment, heard 25 prosecution witnesses. Without a lawyer, the applicant could not confront these witnesses under the same conditions as the prosecution. Moreover, judge K. heard only two out of the nine experts in the area of gas-transportation proposed by the applicant and he refused orally, without reasoning, other requests by the applicant to supplement the evidence, including the key evidence – the original of the contract signed on 19 January 2009, which allegedly incriminated the applicant.

125 . Under Article 7 § 1 of the Convention, the applicant complains that she was found guilty on account of an act which did not constitute a criminal offence at the time when it was commi tted. It is argued that Article 365 of the Criminal Code is not formulated with sufficient precision to enable the citizen to regulate his or her conduct and to foresee the consequences which any given action may entail. Equally, the requirements of “substantial damage” and “grave consequences” contained in this provision are imprecise. She refers to Resolution no. 1862 (2012) of the Parliamentary Assembly of the Council of Europe in which it was stipulated that “ the Assembly considers that Articles 364 and 365 of the Criminal Code are overly broad in application and effectively allow for ex post facto criminalisation of normal political decision making. This runs counter to the principle of the rule of law and is unacceptable .”

126 . Relying on Article 13 of the Convention in conjunction with Art icle 6 of the Convention, the applicant argues that she lacked an effective remedy at the national level. She submitted a number of motions to disqualify the biased judges, which were decided by the challenged judges themselves. According to her, this violates the principle that no person may be a judge in his own case ( Procola v. Luxembourg (no. 14570/89, 28 September 1995, § 45).

127 . Invoking Article 18 of the Convention together with Article 6 of the Convention, the applicant alleges that the charges against her were politically motivated. The facts of the case indicate that her actions in question were of a character which would not be considered a criminal offence in countries with a different legal tradition and would not be dealt with in the criminal system of justice. Her political activities might potentially carry political consequences for politicians or disciplinary consequences for public servants but not criminal consequences. She has a strong suspicion that the criminal case against her was politically inspired and constituted “selective justice”, abusing the criminal system of justice.

128 . The applicant further claims that she was under permanent surveillance in hospital. Despite the official denial by the prison service that the surveillance cameras were recorded, a video tape was published on the Internet showing the applicant in her hospital room and during medical procedures. The video tape was also broadcast in the majority of regional TV channels. She invokes in substance Articles 3 and 8 of the Convention.

129 . Under Article 8 of the Convention the applicant also complains that the Ukrainian authorities published in the Internet or at least permitted the publication of the audio recording of a telephone conversation between her and her husband. She alleges that the audio recording of the conversation contains authentic and falsified elements and was intended to discredit her as a politician and person in the eyes of the international community.

130 . The applicant claims that the violation of Article 8 of the Convention had a systematic character. She contends in this respect that all published photos and video from cell no. 242 of Kyiv SIZO no. 13 were made after the State Penitentiary Service had repaired the cell, and despite the fact that she did not return, to this cell after it had been repaired. According to her, the actions of the State Penitentiary Service are aimed to discredit her in the eyes of the public, in order to reduce the rating of the opposition force, which she leads on the parliamentary elections that took place on 28 October 2012.

131 . According to applicant, the systematic character of the State actions violating Article 8 of the Convention is further demonstrated by the placement of the confidential information about the applicant on the official site of the State Penitentiary Service. She states in this respect that the press releases that were put on the website of the State Penitentiary Service, containing the information about her health, treatments, research, failure to conduct medical examinations by that non-credible medical staff, medical certificates and documents concerning her health remained there for an extended period of time.

132 . The applicant further relies on the impossibility for three months (from January 2012, after having been transferred to the Khachanivska colony in Kharkiv) to communicate with her friends and family and to conduct confidential meetings with her defenders. She could not be in contact with her family and friends even when her father-in-law died on 24 May 2012. However, the official position of the State Penitentiary Service was that this right was granted t o her as an exception on 24 May 2012.

133 . The systematic character of violations of the applicant ’ s rights guaranteed under Article 8 of the Convention is proved by the impossibility for the applicant to make phone calls during ten months. She says that on the eight floor of the Central Clinical Hospital of the State Railways is equipped by telephones (the applicant ’ s room is on the ninth floor) and nothing therefore prevents the State Peniten tiary Service from giving her a possibility to use these telephones. Instead, the State Penitentiary Service said to the public and the judiciary that prisoners may only exercise this right in the Khachanivska Colony but not in the institution where the applicant is hospitalized.

Still under Article 8 alone and taken together with Article 18 of the Convention the applicant complains of the repetitive video recordings and their publication on the official website of the State Penitentiary Service. She refers to the video tapes published on 3 and 5 March 2013.

134 . Invoking Article 4 of Protocol no. 7 in conjunction with Article 6 of the Convention, the applicant complains that her right not to be tried or punished twice was violated. She alleges that in 2005, a tax evasion case had been closed due to the lack of evidence and the acquittal was confirmed by the Supreme Court. However, on 20 October 2011, more than five years later, the decision to close criminal investigation was revoked with no reference to newly discovered facts or evidence.

135 . Invoking Article 10 alone and taken together with Article 18 of the Convention, the applicant complains that since 5 August 2011 she has been depriving of any possibility to communicate with the outside world. Despite her numerous motions to meet with representatives of the media and asking the media to obtain permission for such a meetings, she was not granted an access to the media. According to her, if the media submit a request to meet with the applicant, the State Penitentiary Service provides false information that she refused such a meeting. Besides not being allowed to communicate with the media directly through meetings and interviews, the applicant is also restricted in telephone conversations and completely eliminated from communication with the outside world. She complains that the aim of these actions by the State Penitentiary Service is to eliminate her from the political life of the country.

QUESTIONS TO THE PARTIES

1. Did the video surveillance of the applicant in the hospital constitute an interference with her right to respect for her private life within the meaning of Article 8 of the Convention? Was any such interference compatible with the second paragraph of that Article? In particular, was the video surveillance in compliance with domestic law? If so, was the domestic law sufficiently precise and does it provide for any guarantees against abuses? Was that interference necessary in terms of Article 8 § 2 ?

2. As to the various examples of broadcasting of those video recordings on the Internet and television (in particular, the recording of the applicant being medically treated in the hospital and of her meetings with her lawyer on 3 and 5 March 2013):

i. Did the Government arrange for or otherwise authorise the broadcasts?

ii. Did the broadcasts interfere with the applicant ’ s right to respect for her private life within the meaning of Article 8 of the Convention?

iii. Was any such interference compatible with the second paragraph of that Article? In particular, were they in compliance with domestic law? If so, was the domestic law sufficiently precise and does it provide for any guarantees against abuses? Were they necessary in terms of Article 8 § 2?

3. Were the continuous recording and broadcasting of the applicant ’ s movements in the hospital “inhuman or degrading treatment” within the meaning of Article 3 of the Convention? Has there been a violation of this provision?

4. Was the recording of the telephone conversation between the applicant and her husband on 10 January 2013 ordered by the Government and was it true or falsified by them? Did it constitute an interference with her rights under Article 8 § 1? If so, was that interference compatible with the second paragraph of that Article? In particular, was it in compliance with domestic law? If so, was the domestic law sufficiently precise and does it provide for any guarantees against abuses? Was that interference necessary in terms of Article 8 § 2?

5. Was the broadcasting of that telephone conversation and its publication on the Internet an interference with her rights under Article 8 § 1? If so, was that interference compatible with the second paragraph of that Article? In particular, was it in compliance with domestic law? If so, was the domestic law sufficiently precise and does it provide for any guarantees against abuses? Was that interference necessary in terms of Article 8 § 2?

6. Is it the case, as the applicant claims, that she has not been able to make telephone calls since she arrived in the Central Clinical Hospital on 9 May 2012? If so, was that interference compatible with the second paragraph of Article 8? In particular, was it in compliance with domestic law? If so, was the domestic law sufficiently precise and does it provide for any guarantees against abuses? Was that interference necessary in terms of Article 8 § 2?

7. Is it the case, as the applicant claims, that she could not see her relatives and friends from January to the end of March 2012 when serving her prison sentence in the Kachanivska Penal Colony? If so, was that interference compatible with the second paragraph of Article 8? In particular, was it in compliance with domestic law? If so, was the domestic law sufficiently precise and does it provide for any guarantees against abuses? Was that interference necessary in terms of Article 8 § 2?

8. Is it the case, as the applicant claims, that she could not be in contact with her family after the death of her father-in-law on 24 May 2012? If so, was that interference compatible with the second paragraph of Article 8? In particular, was it in compliance with domestic law? If so, was the domestic law sufficiently precise and does it provide for any guarantees against abuses? Was that interference necessary in terms of Article 8 § 2?

9. In respect of each the above questions, has the applicant exhausted domestic remedies as required by Article 35 § 1 of the Convention? In respect of questions nos. 1-8, did the applicant have at her disposal an effective domestic remedy, as provided for in Article 13 of the Convention? Especially, did the remedies allow to analyse questions of proportionality? Is there any national case-law in this respect?

10. Were the applicant ’ s rights guaranteed by Article 8 of the Convention restricted in a way or for a purpose which breached Article 18 of the Convention?

11. Did the applicant have a “fair and public hearing” before an “independent and impartial tribunal established by law” within the meaning of Article 6 § 1 of the Convention?

i. Was the Pechersk Court which dealt with the applicant ’ s case established by law as required by Article 6 § 1 of the Convention given trial judge ’ s appointment outside the automated random-appointment system?

ii. Was the Pechersk Court independent and impartial as required by Article 6 § 1 of the Convention having regard to the active participation of the Deputy Prosecutor General in the investigation of the applicant ’ s case and his membership in the High Council of Justice which is involved in the trial judge ’ s final confirmation in the post after the expiration of the five year initial period?

iii. Were the public and press excluded from the hearings both before the Pechersk Court and the Kyiv Court of Appeal? If so, was the exclusion compatible with Article 6 § 1 of the Convention?

iv. Were the appeal proceedings before the Kyiv Court of Appeal fair and held before a tribunal established by law as required by Article 6 § 1 of the Convention, given that the presiding judge was appointed outside the automated random-appointment system and had just one day to prepare herself before the court delivered its judgment?

v. Was the Kyiv Court of Appeal independent and impartial as required by Article 6 § 1 of the Convention given the fact that judge F. who was sitting in the three judge panel is the wife of one of the senior officials of the Prosecutor General Office who had supervised the investigation in the applicant ’ s case?

vi. Was the High Specialised Court independent and impartial as required by Article 6 § 1 of the Convention given the fact that the Vice-President and judge of this court was the brother of the Prosecutor General whose Office was involved in the applicant ’ s case?

vii. Was the applicant afforded adequate time and facilities to prepare her defence, as required by Article 6 § 3 (b) of the Convention both before the Pechersk Court and the Kyiv Court of Appeal?

viii. Was she able to defend herself through legal assistance of her own choosing, as required by Article 6 § 3 (c) of the Convention? Was the applicant properly defended at all hearings held both before the Pechersk Court and the Kyiv Court of Appeal? Was there any hearing before these courts at which nor the applicant neither her representative was present? Is it the case, as the applicant claims, that she was not legally represented during the period from 26 July to 1 August 2011?

ix. Was the principle of equality of arms guaranteed by Article 6 § 1 of the Convention respected by the Pechersk Court and the Kyiv Court of Appeal given the considerable difference in number of witnesses allowed to be called for the prosecution and the number of those who would have testify in the applicant ’ s favour? Were the applicant ’ s rights guaranteed by Article 6 § 3 (d) of the Convention respected?

x. Was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case regarding in particular the statements of the State officials during both the investigation and the court proceedings?

12. Were the applicant ’ s rights guaranteed by Article 6 §§ 1 and 3 (b) and (c) of the Convention restricted in a way or for a purpose which breached Article 18 of the Convention?

13. Was the domestic offence of excess of power or office clearly defined in the national law and did it cover the actions of which the applicant was convicted? In particular, does Article 365 of the Criminal Code satisfy the qualitative requirements of Article 7 of the Convention? In particular, was the offence of which the applicant was convicted clearly defined in law and foreseeable (see Kokkinakis v. Greece , judgment of 25 May 1993, Series A no. 260 ‑ A, § 52; Liivik v. Estonia , no. 12157/05, §§ 100-104, 25 June 2009)? Especially, was it clear and foreseeable on the basis of the national legislation that only an authorisation ex ante and not an authorisation ex post by the Committee of Ministers would be necessary for the formal requirements for the applicant to act lawfully on behalf of the Government? Has there been a violation of Article 7 of the Convention?

14. In respect of the criminal case of tax evasion, w as the Prosecutor General ’ s decision of 20 October 2011 comp atible with the guarantees of a fair hearing under Article 6 § 1 of the Convention?

15. Did the court proceedings following the decision to re-open the tax evasion case constitute:

i. a second trial for an offence of which the applicant had been finally acquitted, contrary to Article 4 § 1 of Protocol No. 7 to the Convention, or

ii. proceedings in which the applicant ’ s case was reopened, within the meaning of Article 4 § 2 of Protocol No. 7 to the Convention?

The Government are requested to submit all relevant documents concerning the applicant ’ s acquittal in 2005 and those relating to the reopening of this criminal case in 2011.

16. In connection with the applicant ’ s claim that since 5 August 2011 she was not able to communicate with the outside world, were the applicant ’ s rights guaranteed by Article 10 of the Convention restricted in a way or for a purpose which breached Article 18 of the Convention in connection with the impossibility for the applicant to contact the media during her detention?

[1] Tymoshenko in the hospital.