Tymoshenko: soon at liberty, but never free?


Despite the severity of Tuesday’s verdict, all the signs are that Yulia Tymoshenko will soon be released. But what of her political future? That all depends on Victor Yanukovych, says Valery Kalnysh

Valery Kalnysh
13 October 2011

On Tuesday, Yulia Tymoshenko was sentenced to 7 years imprisonment, and ordered to pay 1.516 billion hyrivna  ($189.5 million) compensation to the national energy company Naftogaz for her role in signing a disputed 2009 gas contract with Russia. The verdict, delivered in Kyiv’s Pechersky Court, sent shockwaves through Ukraine and Europe. Over the four hours he took to deliver the sentence, Judge Rodion Kireyev turned Ukraine into if not a rogue state, then certainly a dangerous frontier. Dangerous for investors, dangerous for those resisting the authorities, dangerous for those who do not to fall in line with rulers’ demands, whims or rules. And all this because of a simple fact: no court in the land will defend the interests of the ordinary citizen against the state, and no justice will ever await the state.

Yulia Tymoshenko in prison uniform

The severity of the verdict, which bars Yulia Tymoshenko from holding high office for at least three years following release, does not of course mean that it will be implemented. The verdict does not mean that Tymoshenko will spend the next seven years in a penal colony, living from morning bell to evening close, sewing quilt covers and pillow cases.

"The verdict, delivered in Kyiv’s Pechersky Court, sent shockwaves through Ukraine and Europe. Over the four hours he took to deliver the sentence, Judge Rodion Kireyev turned Ukraine into if not a rogue state, then certainly a dangerous frontier."

It does not mean that the former head of state will be getting up in the morning for daily exercise and drills; that her hair, formerly immaculately groomed by a personal hairdresser, will become wild under a cotton headscarf; or that she will sit in the prison canteen eating barley porridge and watery soup. No, such a fate is beyond even the wildest imagination of Tymoshenko’s most ardent enemies. Indeed, every clue from the first few days following the verdict give grounds to suggest that Ukrainians will not be seeing Yulia Tymoshenko in prison uniform.

Just a few hours following the sentence President Yanukovych gave a joint press conference with his opposite number in Slovenia, Danilo Türk. What he said was  highly indicative:

“The [sentence] is, of course, a disappointing development, and it impedes Ukrainian Euro integration. The EU is concerned, and, I want to emphasise, we absolutely understand why they are so. We still have the appeal court ahead of us. The decision it takes, and in the framework in which it applies the law, will be hugely significant.”


Yulia Tymoshenko was one of the leaders of the 2004 "Orange Revolution", which led to the defeat of Victor Yanukovych in the presidential election. She narrowly lost to him five years later in the presidential election run-off. 





A statement of this kind from the head of state is, in effect, a promise to release Tymoshenko. However much the President pretends not to interfere in the judicial system, or influence decision making, it is evident that he does. He may not phone the judge personally, but there are bodies below him for that: people with access to the Presidential office who can act as go-betweens, between his whim and the judge.  If he could direct Judge Kireyev to Tuesday’s verdict — and the Ukrainian opposition is convinced that he did — then he would be surely also be able to influence the appeal judge and acquit Tymoshenko.

Article 365

There is another way Tymoshenko could be released. Parliament has already passed a first reading of a presidential bill that would relax criminal responsibility in cases of economic crimes. In effect, this will see 18 articles reclassified from the criminal to the administrative code. Punishment for such crimes — for example for smuggling goods — will no longer take the form of prison sentences, and would instead most likely be a fine. The opposition has been trying to make one amendment to the bill, which would see Article 365 — “abuse of power or public office”, on which Tymoshenko was tired  — removed from  the criminal code altogether. This amendment was tabled before Tuesday’s verdict. At that juncture, it drew indignation from the governmental side, in particular from parliamentarians of the ruling Party of the Regions, who claimed it was unacceptable for legislation to be amended to suit one person. Now they are no longer so categorical, and are prepared to vote for the amendment. Of course, even if this amendment is accepted, President Yanukovych will still have the final say: it is up to him to sign the bill into law.

Victor Shvets, parliamentary deputy of the Tymoshenko bloc and Chair of the Parliament Judiciary Committee, is confident that Tymoshenko will soon return to national politics. “From the day that this law is signed by the president, Tymoshenko will be in prison illegally. Clearly, she must be immediately released, and the case against her closed, given the absence of any crime. There will be no hindrance to her political activity, including her participation in the elections.”

Most likely, the president will indeed sign the bill into law and release Tymoshenko. If this does not happen, one will be able to state with certainty that the dictatorship of Victor Yanukovych has commenced.

To be fair, we should point out that deputies from the Party of the Regions are not entirely wrong when they talk about a minority trying to build the law around Tymoshenko. It is not only Tymoshenko who has been on the receiving end of Article 365 of the criminal code. It might seem that way from comfortable offices in Kyiv. In the regions, however, there are many dozens of cases that apply this very the law against local authorities who have taken illegal decisions, for example in the allocation of land or in determining property rights for businesses. It would seem the opposition is not concerned by this. Their main task is to save Yulia, and to do this, they are prepared to stop at nothing. Even if it means to sacrifice the interests of dozens of simple citizens.

Personally, I have been disappointed with the role of the West through this whole story. One used to criticise the UN for their bureaucratization and inability to forge a clear, unambiguous and tough stance. Now one can quite boldly say the same about the EU. We have had nothing more than statements about events in Ukraine.


According to Yulia Tymoshenko, Judge Rodion Kireyev was 100% dependent on the Supreme Council of justice, the presidential administration and the president himself.






The EU have “expressed concern”, and lamented “inconsistency with democratic standards”, but these are all words that Victor Yanukovych neither hears nor understands. The Ukrainian president is a man used to concrete actions, and responds to such reprimands in customary manner by ignoring them.

Relations with Russia

Much more important for Yanukovych have been relations with Russia. Perhaps for the first time in ten years, the EU and Russia have actually come to an identical position on Tymoshenko. Of course, they do so for different reasons: Europe is interested in “democracy”, and Russia “gas”. By declaring Tymoshenko guilty of exceeding her powers in signing gas contacts, one could in theory imagine Ukraine going further, and attempting to cancel the disputed contract in the Stockholm Court of Arbitrage. Even before the verdict, Yanukovych himself did not discount such a possibility. In an interview with Kommersant Ukraine, he disclosed that he had been attempting to renegotiate the gas deal, which sees Ukraine buying gas at European prices at a loss of some $5-6 billion:

“The Russian position is fundamentally unacceptable to us, and if it does not change, we will go to international arbitrage. There is a system of international courts for this — the Stockholm Court, and the International Arbitrage Court in the Hague. Going there would be an last resort, but over the last eighteen months we have gone nowhere”.

The Russian leadership is tough, but is psychologically compatible with the Ukrainian President. Yushchenko was never prepared to talk with the Russian government, even from a position of strength. Yushchenko preferred to ignore his north-eastern neighbour. Yanukovych is ready to converse as an equal, and, when he needs to, to demand things he wants.

"Personally, I have been disappointed with the role of the West through this whole story. One used to criticise the UN for their bureaucratization and inability to forge a clear, unambiguous and tough stance. Now one can quite boldly say the same about the EU."

Yulia Tymoshenko will most probably be released — whether that be by the decision of the appeal court or at the will of parliamentarians. One can be clear that she will return to opposition politics. Yet while I’d like to believe she will return strong, I don’t forget that there are another two criminal cases lurking in the background (Tymoshenko is accused of misusing funds received from the sale of Kyoto carbon credits). Both have already been investigated, but court dates are yet to be determined. Even as a free woman, Tymoshenko will always know that prison is not far away. And if the example of the gas contract is anything to go by, she will also know she should rely on no-one to help her — not the opposition, not Europe, not Russia. Everything will depend on one thing alone — the whim of Victor Yanukovych.

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