CEDH · CASELAW;COMMUNICATEDCASES;ENG — 10 juin 2013

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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 opponent 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 accepted 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 since 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 her. 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 power 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 Government 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 Entities, 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 supposed 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 ... signed 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 Ukraine 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 that 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 October 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 not 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 c