Yulia Tymoshenko's miraculous release at the weekend was from a seven-year prison sentence imposed for a non-existent crime. The former Ukrainian prime minister had done nothing wrong: the police, prosecutors and jurists who fabricated her offence were subservient to a state that wanted her eliminated. Whether or not Tymoshenko becomes president of her embattled country, Europe needs to find a way to deal with officials who are complicit in human rights abuses.
Tymoshenko was accused of abuse of office, because she made a deal with Vladimir Putin when he stopped gas supplies to Ukraine in the winter of 2009. This threatened a humanitarian disaster unless Ukraine agreed to pay a higher price for Russian gas. Under pressure from the German chancellor, Angela Merkel, and the European commission president, José Manuel Barroso, and with her people dying from hypothermia, Tymoshenko gave in to Putin's demands. Some criticised her for not holding out for longer, and she narrowly lost the presidential election a few months later to Viktor Yanukovych.
Yanukovych appointed his crony Viktor Pshonka as prosecutor general, who set his deputy, Renat Kuzmin, to destroy Tymoshenko. This was easy in a former Soviet state that had embraced democracy but had not reformed the justice system, in which all-powerful prosecutors control the judges. Ukraine has "P-plate judges" provisionally appointed for five years with tenure confirmed only if their decisions have not upset the regime. This system has produced a conviction rate in Ukraine courts of 99.8% – an impossible statistic for any democratic country.
To convict at Tymoshenko's trial, the judge brutally refused her bail and did nothing to discourage televised proclamations of her guilt by Yanukovych and his top prosecutors. But even this judge could not invent evidence – because there was none – that she had acted in the gas deal for personal gain, or with any trace of fraud or dishonesty.
Her actions, taken to avoid a humanitarian disaster, cannot rationally be regarded as a crime. But for making what her enemies called a "bad deal", she was jailed.
This travesty of justice was accompanied by similarly rigged prosecutions of her ministers. The Council of Europe turned a blind eye to the outrages. The European court of human rights upheld Tymoshenko's initial complaints, but its slow processes and indulgence of the Ukraine government's delaying tactics prevented it from giving her any meaningful relief.
This failure underlines the need for EU member states to adopt a "Magnitsky Law", which names and shames officials– especially judges, prosecutors and police chiefs – who are complicit in abuses. Sergei Magnitsky blew the whistle on state corruption in Russia and was killed in prison: the US, to Putin's fury, last year adopted a law that denied entry and banking services to 16 of his tormentors, including judges who had denied him bail.
London has become a favourite destination of violent and corrupt officials and oligarchs. But when five former secretaries of state for foreign affairs called last year on the minister for Europe, David Lidington, to support a Magnitsky law, his ignorant response was that it was "unlikely to contribute to achieving justice". Tell that to Tymoshenko.
Her vicious prosecutor, Pshonka, was the first to be indicted by Ukraine's parliament on Sunday, followed by the defence minister accused of ordering the shooting of protesters. There will likely be more charges against Yanukovych and his cronies if the opposition triumphs in the May elections. Can they be fairly tried in Ukraine, before their own judicial tools?
The greatest challenge to any new government will be to establish an independent judiciary. It may be better for it to invite European (including Russian) judges to sit on the trials of Yanukovych's corrupt apparatchiks, and to ask the international criminal court to try those accused of ordering the lethal force used against peaceful protesters – a crime against humanity.
Tymoshenko, whatever her faults in failing to capitalise on the Orange revolution, is a remarkable and courageous figure. After 30 months in prison for a crime that was not a crime, her greatest challenge will be to reform the justice system so this cannot happen again – even to those who put her behind bars.
Geoffrey Robertson QC is joint head of Doughty Street Chambers, and the co‑author of Robertson and Nicol on Media Law.