The Tymoshenko Verdict
The verdict that was given in the Tymoshenko trial today was not a surprise to most Ukraine analysts. The timing was expected but not certain, given that it had been delayed before.
The judge pronounced that the ex-prime minister had abused her office and sentenced her to the full seven years demanded by the prosecutor as well as repayment of 1.5bn hrivna ($186m) as damages to the state-owned gas company Naftohaz for having to sign an import contract with Russia in 2009.
Even before the court session began, Tymoshenko told the attendees that"You know very well that the sentence is not being pronounced by judge Kireyev but by president Yanukovych....Whatever the sentence pronounced, my struggle will continue. This sentence, written by Yanukovych, will not change anything in my life or in my struggle....I will fight for Ukraine, her freedom and independence”, ensuring that everyone was aware of the political nature of the trial and that the sentencing was not the end as far as she was concerned.
Witnesses observed the dramatic ratcheting up of the tension in the courtroom with the judge and all attendees standing except Tymoshenko, her husband and daughter remaining seated throughout. The judge spoke for four hours, summing up the case whilst building up to the expected crescendo of imprisonment.
In this instance, the judge only repeated what the international community is accusing president Yanukovych of having done already, namely of ratcheting up the tension internationally with regard to eliminating a political opponent.
Immediately after the judgement was announced Tymoshenko’s lawyers stated that they would appeal the verdict, whereas Tymoshenko remained focused not on the legal process, but the underlying aim of the trial: that of political assassination. She told reporters at the court that “everything that Kiryeev said is false, and it will be disproved, though not in Ukrainian courts”; indicating that the European Court of Human Rights should expect to look into this case and trial in due course.
The EU had been warning the Ukrainian president for months that such a verdict would harm bilateral relations, therefore it came as no surprise to hear the comprehensive statement from Catherine Ashton, the EU High Representative for Foreign and Security Policy which declared that “The EU is deeply disappointed with the verdict of the Pechersk District Court in Ukraine in the case of Ms Yulia Tymoshenko. The verdict comes after a trial which did not respect the international standards as regards fair, transparent and independent legal process which I repeatedly called for in my previous statements. This unfortunately confirms that justice is being applied selectively in politically motivated prosecutions of the leaders of the opposition and members of the former government. It is especially disappointing for a country that currently holds the Chairmanship of the Committee of Ministers of the Council of Europe. The EU urges the competent Ukrainian authorities to ensure a fair, transparent and impartial process in any appeal in the case of Ms Tymoshenko and in the other trials related to members of the former Government. The right of appeal should not be compromised by imposing limitations on the defendants’ ability to stand in future elections in Ukraine, including the parliamentary elections scheduled for next year. The EU will reflect on its policies towards Ukraine. The way the Ukrainian authorities will generally respect universal values and rule of law, and specifically how they will handle these cases, risks having profound implications for the EU-Ukraine bilateral relationship, including for the conclusion of the Association Agreement, our political dialogue and our co-operation more broadly.”.
The implication here is that while the DCFTA which is planned for December may be signed, that will be a firm bargaining tool with regard to the fair and judicial treatment of Tymoshenko when it comes to ratification. Apart from Tynmoshenko’s incarceration, Ashton concentrated on the implication of the deprival of her personal freedom: her ineligibility to run as a candidate in next year’s parliamentary elections. Concerning this issue, Ashton notes Tymoshenko’s right of appeal should not be compromised by barring her from future elections. This is indicative of the hopes and aspirations of the EU that Tymoshenko’s incarceration will not be for a long duration and that she will regain her political as well as personal rights sooner rather than later.
Wilfried Martens, the president of the European People’s Party, has in the past strongly condemned the decisions of Ukraine's Pechersk court. In this instance Martens commented that: “Unfortunately, the court process during the trial of Yulia Tymoshenko, repeatedly violated human rights and, furthermore, the behavior of the judge demonstrated that courts in Ukraine are not independent and are used to eliminate political opponents....The court process and the decision is shameful for a country that has European aspirations and the ambition to sign an Association Agreement. The promise of President Yanukovych to European leaders to release political prisoners in order for them to stand for the elections, has yet to be fulfilled, which makes EU cooperation with the Ukrainian authorities extremely problematic....Needless to say, I will discuss the state of democracy and human rights in Ukraine at the next EPP Summit in order to decide whether we proceed with the Association Agreement, but after today's court decision, I think we should suspend the signing of the Agreement with Ukraine”. His closing remark is quite candid and reflects a firmly held view by many within the EU.
Indeed it was fully supported by the President of the European Parliament, Jerzy Buzek, who announced that he deeply regretted the “Ukrainian court's decision to sentence former Prime Minister Yulia Tymoshenko to 7 years in prison. The context and conditions of this verdict raise concerns about its politically motivated nature and about a selective application of the rule of law in Ukraine. I have serious doubts about fairness, independence and transparency of this trial. The law applied against Tymoshenko dates back to the Soviet times and envisages criminal prosecution for political decisions. This is a rare practice in democratic countries. Ukraine is a great nation that deserves better. I hope the Criminal Code will be amended soon, as currently discussed in the Verkhovna Rada. Article 365, which has been used against Tymoshenko, is of particular concern. I expect the verdict to be reconsidered in case of an appeal process. Strengthening the rule of law and a credible fight against corruption are essential not only for the conclusion of the Association Agreement by the end of the year and the deepening of EU-Ukraine relations, but also for the consolidation of democracy in Ukraine. I urge Ukraine to uphold the principles and common values that define our relationship and that form the core of the Eastern partnership".
The German Foreign Minister Guido Westerwelle gave a stern critique warning that relations could not remain the same and that there had to be repercussions. He noted that "Today's ruling against the former Prime Minister Yulia Tymoshenko is a setback for Ukraine. Unfortunately, it casts a very negative light on the rule of law in Ukraine. This finding can not remain without consequences for our relations with the EU and Ukraine. We will now be watching very closely how Tymoshenko in Kiev with the case and those of other former government members will be handled. We expect the political leadership in Ukraine, a commitment to democracy and the rule of law”.
The Polish Foreign Ministry issued a statement that reminded the country had “consistently supported, and still supports, the Ukrainian nation in its European choice. Ukraine’s European aspirations stand for the necessity to strengthen and apply the norms and standards typical of the political and social order of the European Union. Poland along with the European Union and its Member States observe with concern the trial of the former Prime Minister Yulia Tymoshenko. The manner in which the trial is conducted and today’s conviction are the example of politicization of the Ukrainian judiciary. Ukraine’s image as a country that is undertaking a fundamental pro-European transformation has been tarnished. Poland has repeatedly emphasized, both within the EU and in direct contacts with the Ukrainian authorities, that everything should be done to ensure that the trial is fair, transparent and conducted in compliance with all the rights that the accused should enjoy. Further proceedings will demonstrate whether or not Ukraine is moving towards or drifting away from the European integration – the goal its leaders declared to pursue and Ukrainian society keenly supports”. Poland was reemphasizing its viability to serve as an interlocutor or role as an arbiter to seek a solution to the impasse between the Ukraine and the EU of which it currently carries out the role of the presidency.
Council of Europe & OSCE
Ashton had made mention of the fact that Ukraine currently chaired the committee of Ministers in the Council of Europe, invoking the moral authority of the institution as a defender of human rights and the rule of law. The Secretary General to the Council of Europe, Thorbjoern Jagland, made it clear that he considered the trial to be politically motivated by reminding the Ukrainian authorities that "In a democracy, judgement about political decisions should be left to the parliament and to voters, not to courts,".
Similar to the EU, another international organization that demonstrated its disapproval was the OSCE, through its Chairperson-in-Office, the Lithuanian Foreign Minister Ažubalis, who expressed his concern at the conviction: “I have followed this case closely and previously urged the Ukrainian authorities to ensure that the defendant’s rights to a fair trial were fully respected. It is now vital that the appeals process be conducted openly and fairly and in line with the highest standards to restore the trust of the Ukrainian people and the international community....Ukraine needs to show the utmost transparency in the conduct of its judicial processes. While countries have a duty to uphold the rule of law, they must do so in a way that avoids the selective application of justice.”
Urging transparency in the legal proceedings, the OSCE also made clear its expectation that the legal process was not over yet, mentioning the likelihood of an appeal. Whilst the EU has an important deadline to meet with regard to signing or delaying the DCFTA in two months time, the OSCE is also in a similar position. Ukraine is preparing to take over the Chairmanship in two years time, in 2013. Having a country chair an organization that expresses faith in the rule of law and transparent legal processes whilst a prominent opposition member languishes in jail, deprived of her personal and political rights is not a welcome prospect.
Across the Atlantic, the White House noted in a written statement that the “charges against Mrs. Tymoshenko and the conduct of her trial, as well as the prosecution of other opposition leaders and members of the preceding government, have raised serious concerns about the government of Ukraine's commitment to democracy and rule of law,". The statement further called for the release of Tymoshenko and others with the hope and expectation that "they should have an unrestricted ability to participate fully in political life, including next year's parliamentary elections.". Similar to Martens, Senator John McCain, who has personally and publicly criticized the Ukrainian authorities before, provided further support having considered the verdict as demonstrating Yanukovich to have "reached an alarming new low in the deterioration of democracy and rule of law."
News agencies reported that the Russian Prime Minister Putin, whilst visiting Beijing, confirmed his relationship with the ex-prime minister had never been very close. He stated that she "is not a friend or relative for me....Moreover, she is rather a political opponent....a person of Western orientation."
Concerning the heart of the matter of the trial, Putin declared: "As for gas affairs, I'm not familiar with the indictment issued by court, I don't know what specifically is written there, but if one judges by media content, the reason for the guilty verdict were the gas contracts with Russia. Well, first of all, Tymoshenko didn't sign anything, the contracts were signed at the level of economic entities, Gazprom and [the national oil and gas company Naftogaz] of Ukraine,". He added poignantly that "the main point is that those commercial contracts fully conform to Russian and Ukrainian laws and to international rules, international standards,". Such an evaluation was at odds with the verdict of the court.
Putin underscored the fact that the contracts were based on principles that underlay Gazprom's agreements with other European firms and the exact same price formula that was authorized with others had been implemented. He added that it was vital that different contracts for gas exports to Ukraine and for the transit of Russian gas through Ukrainian territory to the European Union had been signed, hinting at secure energy supplies to the Balkans which have suffered gas shortages in the middle of winter when Ukraine and Russia have had disputes over gas pricing. Related to this issue Putin went further and denied that previous disputes had anything to do with gas transit to Europe, saying he believed “that it is dangerous and counterproductive to question this entire complex of agreements,".
Putin reiterated in a new guise his Eurasian Union proposal of a few days ago by suggesting that Russia and Ukraine would be more competitive if they had closer mutual economic ties. This accordingly would mean “bigger advantages. I'm not talking about politics, I'm talking about pure economic pragmatism, the economic side of the matter. But that is undoubtedly always the sovereign choice of the other side, Ukraine in this case. By the way, today's leadership, as we can hear from public speeches, in effect sticks to the same point of view, there's little that has changed there,". Here, however, he was disputing the pro-EU tendencies of Yanukovych, the Azarov government and the Ukrainian Parliament who have all voiced support for the DCFTA and deeper integration with the EU.
Putin did receive support from a domestic political opponent in the stance that he took. The leader of the Communist Party, Zyuganov, also declared that he was convinced the Tymoshenko trial was politically motivated as he believed that Tymoshenko had not violated any law through the signing of an agreement with Russia concerning gas supplies to Ukraine.
The Russian Foreign Ministry also supported their prime minister by highlighting the fact that the Kiev court had ignored “compelling evidence” in favour of the contract’s legal impeccability. It went further to declare that “We cannot ignore an obvious anti-Russian underlying message in this whole story. In fact, Tymoshenko has been tried for legally binding agreements between Gazprom and Naftogaz Ukrainy, which remain in effect and which nobody has invalidated". The accusation of anti-Russian sentiment is one that needs to be adressed in Kiev, especially given the fact that the Russian authorities are adamanat that the gas prices will remain as before.
The issue of the gas contracts were on the agenda of Alexei Miller, the CEO of Gazprom, who had a meeting with Ukraine’s energy minister, Yury Boiko, where both agreed to accept the current contract until they could agree to new arrangements. The gas issue is more than likely to be on top of the agenda when President Medvedev will meet President Yanukovych at an inter-regional economic forum in Donetsk which is to be held next Tuesday.
From all the international condemnations it is clear that the Tymoshenko case cannot be considered to be concluded despite the verdict of the court. Perhaps the most authoritative statement with regard to this fact came from President Yanukovych who said the verdict to jail Tymoshenko for seven years “made the European Union anxious and we understand why this is so,". He went onto tell journalists after the trial ended, very suspiciously that "Today the court took its decision in the framework of the current criminal code. This is not the final decision".
Quite obviously it was not the declaration of Tymoshenko’s lawyers for appeal that was on his mind, but to find a compromise with primarily the EU and to mend fences with Russia and the rest of the international community. What he was probably concentrating on could have been the message relayed to the social network, Twitter, by Alexander Lebedev, the proprietor of four British newspapers as well as the Novaya Gazeta in Russia. He had simply written: Free Nelson Tymoshenko!
Yanukovych is fully aware that Tymoshenko has become overnight the political dissident par excellence in Europe, if not the world. When comparisons with Aung San Suu Kyi, the Nobel Peace Prize Laureate are made, which they inevitably will, then he will have Tymoshenko as the defender of democracy against a brutal oppressive regime almost etched in stone for the whole world to support and defend. That is the last thing the Ukrainian president wants; a heroine, invoking greater appeal than the Ukrainian Berehynia or the French Marianne, with the whole world feeling empathy with a woman who is considered to be unfairly put in jail.
Therefore, it is almost certain that tough negotiations await the concerned parties. Tymoshenko has stated all along that she does not recognize the show trial and that she has nothing to answer for. The international community has by and large supported this stance accusing the Ukrainian prosecutors of bowing to political motivation and usurping the rule of law. The Russian Federation has weighed in heavily into the original accusation that the gas agreement was illegal and unethical, rejecting such claims outright and reminding Ukraine to implement the rule of law. Yanukovych is in a difficult position as he cannot cave in to the demands he faces as that would be tantamount to losing all the political capital that he has accumulated. Therefore, a middle way needs to be discovered, which could take time. That would not be unwelcome after today’s events. With the passage of time, compromises can be portrayed more easily to respective audiences, whether they be Ukrainian, European or Russian. Though time is a relative concern with this specific case. The DCFTA issue must be resolved one way or the other within two months. However, two months is an eternity in international politics, much can be achieved in that time and probably will in the Tymoshenko case.
»» Dr. Süreyya Yiğit, ORSAM Eurasia Advisor