The Tymoshenko trial: a farce to end the farce

A flexing of European trade muscle means the Yulia Tymoshenko showtrial is likely coming to an end, writes Mykola Riabchuk. The only problem remains how to bring that end about in a more or less convincing — if not necessarily decent — way.

The farcical trial of Yulia Tymoshenko, the former prime minister and main political rival of incumbent president Viktor Yanukovych, seems predictably to be drawing to a farcical end. The final decision is as yet unclear even for the chief organizers of the court facade. Thus far, they are trying desperately to fulfill two opposite and essentially incompatible demands – to free “Yulia,” at the demand of the international community, and, at the same time, to eliminate her as the most dangerous rival of Yanukovych from the next parliamentary (2012) and presidential (2015) elections.

The government, squeezed by two mutually exclusive imperatives, has a really difficult choice – either to forget about the pending Association Agreement with the EU and probably about the DCFTA (Deep and Comprehensive Free Trade Agreement), or to face harsh political competition from a rival who may not only win the forthcoming elections but also could potentially dispatch all her current persecutors to jail with much more serious and better substantiated criminal accusations. The costs-and-benefits calculation of either decision is incredibly difficult for the incumbent regime – partly because there are too many unknown variables in the calculation, and partly because the regime is not homogenous, and various factions perceive their own costs and benefits differently.

Some “pragmatic” observers argue that Tymoshenko is just a loose cannon and her re-emergence on the political scene would weaken and split the opposition, and effectively prevent the emergence of new and more dangerous anti-oligarchic leaders from civil society that may challenge the entire corrupt system. They refer to some classified opinion polls that predict Yanukovych’s victory over Tymoshenko if an election were held today, but give him slim chances against other candidates like Arseniy Yatseniuk.

Another group of experts and politicians claims, rather cynically, that the EU will sign the agreements with Ukraine anyway because the country is too big and strategically important, and the Westerners would not allow it to be swallowed alternatively by Russia.

"Most likely is that Tymoshenko will be released, the agreements signed, and the Ukrainian “elite” will have further proof of how smart they are and how easily they can cheat the stupid Westerners. "

And finally, there is a sizable group of people around Yanukovych who have multiple interests in Russia and basically do not care about, and do not believe that any serious international sanctions will be imposed on the regime, regardless of its neo-Soviet roughness and repressiveness.

All these groups press the weak and incompetent leader in different directions but a consensus emerges from this seemingly chaotic chorus that will be examined further in more detail.

Remarkably yet, all the discussions about the Tymoshenko affair pay little if any attention to the factual side of her “crime.” Even pro-government experts and politicians, in various articles, talk-shows and interviews, speculate primarily about the political expediency of the trial, about its costs and benefits for both the government and Tymoshenko herself, but not about the specific decisions, signatures, documents, figures, and agreements she negotiated with her Russian counterpart Vladimir Putin.

It seems that even the government is not especially concerned to make a case that the trial is really a criminal and not a political affair. Hanna Herman, the outspoken advisor of Yanukovych, goes so as far as to suggest that her boss was merely framed by some unspecified conspirators who arrested Yulia Tymoshenko without the president’s blessing: “If [Viktor] Yanukovych had made his own decision on the issue, he would not have carried out such a great injustice. It was done when Yanukovych was on his holidays, when he did not have information… If I only knew who had done this, who made this decision, I would have strangled him with my own hands” (link in Ukrainian) 

The issue appears here as a matter domestic intrigue within the ruling clique rather than a genuinely legal case. Yet, an even better portrait of the Ukrainian “justice” system and the legal consciousness of the Ukrainian political “elite” emerges from a recent interview with former Ukrainian president Leonid Kuchma who back in 2001 arrested Yulia Tymoshenko, then a deputy prime minister, because of some murky gas deal from the mid-90s, when she was a major business partner of the notorious Pavlo Lazarenko.

Q. “Don’t you regret that you also happened to imprison Yulia Tymoshenko? Her popularity ratings rocketed after that.”
A. “I never ordered anyone to imprison her, and you know this!”
Q. “Really?”
A. “If I have ordered it, she wouldn’t have been released!” (link in Ukrainian) 

No comments are necessary.

In the absence of an independent judiciary in Ukraine any decision on a politician’s destiny would be political and, most likely, ascribed to the president’s whim since he has accumulated almost autocratic power in his hands. The “pragmatists” seem to have already persuaded Mr. Yanukovych to release his main nemesis and let her play the role of a political spoiler on the opposition playing field. The EU will be satisfied, the agreements signed, the sanctions avoided, the opposition silenced, and the heavyweight Russian pressure counter-balanced by a traditional “Western vector” and mostly virtual “Euro-Atlantic integration.” The only problem remains how to bring to an end the farcical “Yulia show” in a more or less convincing if not necessarily decent way.

The solution found by the president’s legal pundits and political spin-doctors looks smart. The parliament is reconsidering whether the old Soviet (1962) Criminal Procedure Code is legally valid in Ukraine, which inter alia would eliminate the article that criminalizes Tymoshenko’s alleged wrongdoing. Two birds would be killed thereby with one stone: Tymoshenko would be released without a formal dismissal of accusations (thus she would have a criminal record), and the incumbent regime would receive a perfect cart-blanche for similar wrongdoings in the future. Notably, the Ukrainian parliament controlled by Yanukovych’s Party of Regions has refused to make some critical amendments to the outdated Code that run against their authoritarian views and needs. For example, the MPs refused to forbid legally any pressure on priests to disclose information obtained during confessions. Or to stipulate clearly in the Code that advocates, notaries, doctors and psychologists may not disclose any confidential information received from their clients without their written permission (link in Ukrainian).

These childish attempts to manipulate the Criminal Code are further proof that the Ukrainian “elite” is still playing with rules rather than by the rules. Yet, as similar cynical games in Moscow are accepted internationally at the highest level, the Ukrainian rulers should not be embarrassed too much.

The main problem with all these post-Soviet crooks is that they not only distrust the so-called “European values” but, in most cases, they simply do not understand them. By and large, they believe that the politics is all the same everywhere and all the discourse about human rights, rule of law, and other “blah-blah” is merely a Western trick, a trump-card invented by a stronger player to gain some advantages over weaker counterparts and force them to make some additional concessions. On many occasions, they refer to various Western missteps and inconsistencies, like Schroeder’s corruption, Berlusconi’s extravagancies, or Bush’s Iraq affair, just to prove that the only difference between “them” and “us” is that they can get away with it.

The ultimate results of the Tymoshenko affair might be two-fold. The first, less likely but still possible, scenario is that the firebrand Yulia is sentenced and thereby eliminated from the eventual elections. In this case, the EU would certainly not sign the nearly finalized agreements with Ukraine – under the clearly articulated pressure of Germany, Italy, France and some other countries that have never had much interest in Ukraine’s democracy, human rights and European integration, but have always highly respected Moscow’s “privileged interests” in what they believe is its “backyard.” None of these friends of Tymoshenko raised their voice last year when the illegitimate government was formed in March after the Regionnaires carried out a coup d’etat in parliament, the constitutional court was reshuffled, local elections illegally postponed and eventually falsified, the 2004 constitutional amendments abolished with multiple procedural violations, and so forth. For those “friends of Ukraine” everything was fine in the country until court proceedings began that encroached upon the interests of Gazprom and Mr. Putin. “It is not just wrong but amoral,” is how Mykola Azarov, prime minister of Ukraine, condemned Westerners’ attempt to connect “the serious global issues like the free trade agreement with a specific court case”.

This will probably be the predominant rhetoric of the Ukrainian officialdom if Tymoshenko is sentenced and the agreements are not signed. The strong anti-Western campaign and gradual “Belarusization” of Ukrainian politics is the most probable result of this scenario.

More likely, however, is that Tymoshenko will be released, the agreements signed, and the Ukrainian “elite” will have further proof of how smart they are and how easily they can cheat the stupid Westerners. So far, indeed, there are no signs they are going to reconsider their profound contempt for democracy, human rights, and all those trumpeted and really boring “European values.” Tymoshenko’s case is just the tip of the iceberg, but it distracts attention from rampant lawlessness all over the country, including innumerable accounts of police and security service brutality, blackmail and intimidation, harassment of civic activists, the shutdown of the independent mass media, destruction of “disloyal” businesses, and many other misdeeds that have become habitual practices of the Ukrainian authorities.

As long as they are allowed to cheat and not punished for it like their Belarusian brethren, they will cheat wherever and whenever possible –with or without the EU agreements, and regardless of whether Yulia Tymoshenko is at large or in detention.

First published on David Marples' Ukrainian Politics blog

About the author

Mykola Riabchuk is a senior research fellow at the Ukrainian Center for Cultural Studies, in Kyiv, and co-founder and member of the editorial board of Krytyka, a leading Ukrainian intellectual magazine.