Tymoshenko’s Case versus the Ukrainian Cause

Mykola Riabchuk

The pessimists were right: the Pechersk district court has fully approved the criminal charge against Yulia Tymoshenko, the former prime-minister of Ukraine, and sentenced her to seven years in prison. This is the maximum term provided by the respective article of the Criminal Code. Additionally, Ms Tymoshenko was barred from occupying any public office within three consecutive years, and fined $190 million for the damages to the Ukrainian economy that she arguably incurred in 2009 by signing an unfair gas contract with her Russian counterpart Vladimir Putin.

A few weeks ago, rumors emerged in Kyiv that the decision on Tymoshenko’s case had been decided in advance by President Viktor Yanukovych himself, and that the court had only to rubber-stamp the maximum prison term for his arch-rival. Even though Yanukovych defeated her narrowly last year in the presidential election, Tymoshenko still is the leader of the opposition and his main challenger. Whether the rumors were based on accurate information leaked from the president’s office or merely a gloomy intuition of Tymoshenko’s supporters, optimists had some reason to expect that the Western criticism of the kangaroo process would not be completely ignored by the Ukrainian authorities. The president who boasts of his “pragmatism” would surely not put at risk the entire project of Ukraine’s European integration for the dubious purpose of personal vengeance.

The additional three-year ban on taking a public office imposed by the court on Yulia Tymoshenko, suggests that the main driving force behind Yanukovych’s decision was not only vengeance but also fear. Tymoshenko is believed to be not merely the strongest challenger for the incumbent regime but also its real nemesis who would not hesitate to pay them in kind, and would likely do so on much stronger legal grounds. Now, through the court ruling, she is effectively excluded from both the 2015 presidential election with Mr. Yanukovych and the 2020 competition with his likely handpicked successor.

The court decision, announced on 11 October, provoked a storm of protest in Western capitals, especially in the European Union. The EU leaders, indeed, placed high stakes on pending negotiations about the Deep and Comprehensive Free Trade Agreement (DCFTA) and Association Agreements with Ukraine and expected to finalize them by the end of the year. On many occasions, they warned Kyiv that they would hardly be able to maintain close relations with a country that applies selective justice against the leaders of the political opposition and criminalizes legitimate decisions of the previous government. That the warnings have been ignored has filled the Westerners with sheer indignation. Leaving diplomatic courtesy aside, they state clearly now that no Association agreement, with DCFTA as part of it can be signed until Ukraine proves its full commitment to European values.

It signifies not only a demand to release Yulia Tymoshenko and other political prisoners but also to stop government pressure on civil society, harassment of independent media, manipulation of laws (the election law in particular), and so on. The government seems to be lost. Its leaders apparently do not understand why a minor, in their view internal, issue has caused such a huge international furore, and how to get out of this lose-lose situation. Ironically, the Westerners themselves have greatly contributed to the current confusion. Since March 2010, they have benignly neglected the growing roughness and lawlessness of Yanukovych’s regime, starting with a de facto parliamentary coup d’etat and ending up with the shamelessly manipulated local elections and even more unscrupulous changes of the national constitution. In fact, the Europeans sent Yanykovych and his associates a very wrong signal: guys, as long as you can restore and maintain some order in this chaotic country, we don’t care much about law and democracy in your fiefdom. What the Westerners offered as a benefit of doubt, the Ukrainian authorities took as a carte blanche.

Now, the both sides are badly surprised and bitterly disappointed. The Westerners simply do not understand why Yanukovych ignored so defiantly their quite clear message to leave Tymoshenko in peace. And Yanukovych seems to be equally puzzled why they decided finally to react, having accepted tacitly all his tricks throughout a year and a half. He may believe, quite sincerely, that the EU reaction is just a show staged by the smart Western politicians for their candid electorate – exactly like the Tymoshenko trial is staged by his “goodfellas” for domestic purposes.

Whatever the rationale, Yanukovych seems not to fully understand that his reprisal on Tymoshenko is not the main reason for ostracizing him but just the last straw that broke the camel’s back, i.e. the patience of the EU leaders. One may speculate how many of them are truly concerned about Ukraine’s democracy and how many (likely the majority) that are using the case as the pretext to exclude a nuisance like Ukraine from the European project and, inter alia, to please the old pal Vladimir http://dt.ua/POLITICS/vin_pilyae_suk_pid_soboyu_a_vpade_krayina-89690.html. The fact is that the Ukrainian government has crossed the red line and entered uncharted land where they no longer receive the benefit of doubt and benign neglect for thuggish behavior, cheating and bluffing, for whatever reason.

In a way, Yanukovych committed the same mistake as his former boss Leonid Kuchma. He delegitimized himself, both domestically and internationally. He has lost credibility and, henceforth, will be seen not as a leader trying to fix a dysfunctional democracy, but as an arrogant autocrat who is striving to dismantle the remnants of political pluralism and genuine competition inherited from his predecessor Viktor Yushchenko. Hitherto, to maintain good relations with the EU, Yanukovych needed only to prove that he is not completely hopeless and autocratic – a not so difficult task in the context of post-Soviet sultans, dictators, and “national leaders.” After the Tymoshenko conviction a minimum pass will no longer suffice. A strong “C” is required, and this is a sea change since neither mentally nor institutionally are the Ukrainian authorities able to qualify.

Yanukovych may pardon Yulia Tymoshenko now, as some experts suggest; or may push the new Criminal Code through the parliament that decriminalizes Tymoshenko’s transgressions, as he hinted himself; or, vice-versa, he may open a new criminal case against her, as the Security Service of Ukraine has already announced http://news.dt.ua/POLITICS/sbu_spravu_za_borgi_pered_rf_porusheno_proti_timoshenko_i_lazarenka-89574.html. In either case, he would remain a lame duck president, despised at home and distrusted abroad, squeezed between the EU and Russia, and torn between two mutually exclusive but equally unreliable strategies of survival. One of them means submitting to the EU demands and accepting European values and respective behavior. This sounds promising, but looks very unlikely since neither the president nor his oligarchic team understands what those values mean and how they can be treated seriously, nor are they ready to accept fair play and expose themselves to free political and economic competition.

The alternative strategy is much more likely – to play possum as long as possible, defy the European Union’s pressure, to look for support in the Kremlin, to promise and not to deliver, to be smart like Aliaksandr Lukashenka, or at least Leonid Kuchma. The problem however is that Yanukovych is not that smart, nor are Ukrainians obedient enough, nor is the Kremlin eager to support all these smarties for a song. And last but not least, the Ukrainian officials-cum-oligarchs are not very happy with the looming prospect of being blacklisted in the EU like their Belarusian brethren.

The most probable scenario is that Yanukovych’s regime will make another attempt to cheat the Westerners. To this end, they may release Tymoshenko in order to continue reprisals against opposition, civil society, and the independent mass media, with the implicit goal to monopolize all the political and economic power http://www.pravda.com.ua/columns/2011/10/14/6665143/. If society resists the latter, they will employ coercion; if the EU applies sanctions against Ukraine, they will turn to Moscow.

Paradoxically, the same people who nurtured Yanukovych might become his political gravediggers. The Ukrainian oligarchs are very unlikely to follow the president in his drift to Moscow, and even less so his break with the EU. This group, however, is highly opportunistic and would never oppose the president openly until and unless society demonstrates its strength and the West steps up pressure.