In October 2011, Yulia Tymoshenko was sentenced to seven years in prison, although the consequences may last much longer. By sentencing Tymoshenko, Judge Rodion Kireyev may have made one of the most important geopolitical decisions in years.
When Yulia Tymoshenko’s trial started on June 24th 2011, the conditions in which it initially took place were shocking for even the most hardened observers of the Ukrainian political scene. The tiny, unbearably hot and stuffy courtroom was a full house, with deputies, reporters and diplomats all in attendance. Pools of sweat accumulated on the floor with air conditioning only being installed much later. It was not only Tymoshenko’s supporters who tried to cram themselves into the courtroom, many of her opponents also came out in large numbers to ensure that there was little space left for the others to sit – an old trick from Soviet times.
Trumped up charges
The ex-leader was accused of abusing office in January 2009 after she had issued directives to negotiators of a major Ukrainian gas contract in Moscow that “had serious consequences”. Following the talks, a Naftogaz representative signed the contract with Gazprom. Yulia Tymoshenko herself maintained that the document was just “the prime minister’s recommendation” which she only signed with the word “directives”. Even though the prosecutor’s charges only concerned the formal issues, there was a great deal of discussion during the trial regarding the profound implications of the ex-prime minister’s actions and what the signing of the gas contract with Russia meant for Ukraine. Everyone was also reminded that Yulia Tymoshenko had been trading in gas since the 1990s and that in 1994 she founded a gas company with Viktor Pinchuk to import fuel from Turkmenistan.
The prosecutor argued that by signing this gas contract in 2009, a great deal of damage had been done to the state. And yet the problem lies not in the price of regular gas (although this matter was also looked into by the investigators) but in the higher price of “technical” gas necessary to preserve transit. In accordance with the new contract, the price of “technical” gas was set at $232 for one thousand cubic metres. The year before it had only cost $179.50, which is why Naftogaz spent over $180 million more transporting Russian gas across Ukraine in 2009 than it had done in previous years. $180 million is also the amount estimated to have been lost by the Ukrainian budget. However the Ukrainian ex-prime minister still attempted to prove that the technical gas contract was taken over from middleman agency, RosUkrEnergo, a company that was eliminated when the contracts were signed, and that the gas was purchased from Gazprom at a price two times lower than Russian gas.
Any mention of Dmytro Firtash and RosUkrEnergo was dismissed by Judge Rodion with a curt “not related to the case”. However the history of the tense relationship between Yulia Tymoshenko and the businessman, Dmytro Firtash, goes back to 1999 when his company took over the Russian company, Itera, which cooperated with United Energy Systems of Ukraine headed by Yulia Tymoshenko.
Contempt of court
On August 5th 2011, the ex-prime minister was arrested in the courtroom. The formal reason for her arrest was contempt of court and violating court procedures. Judge Kireyev, a 31-year-old judge with only two years of experience presided over the trial. He had previously worked in Berezhany near Kyiv and prior to the trial had only handled a corruption case once, generally having more experience ruling in civil and administrative cases. The ex-prime minister took advantage of his inexperience by not standing up when he spoke and often replying impolitely.
“You will never crush me. You are crushing a young democracy. Do as you have been ordered,” she clamoured in the courtroom. “Any regular man would feel remorse, but you don’t because you were brought up this way … I don’t know who your parents were but they raised a moron.” At the time of Judge Kireyev’s decision to arrest the former prime minister, Mykola Azarov, the current prime minister of Ukraine, was being questioned as a witness, speaking Russian as usual. Yulia Tymoshenko demanded an interpreter saying she did not understand Russian, even though she understands and speaks Russian extremely well. By doing so she gave another slap in the face to the young judge, which explains his decision to find her in contempt of court.
It is most likely that the country’s leadership also had to agree with the decision. According to Taras Chornovil, once a close collaborator of Viktor Yanukovych and now an independent member of parliament, Tymoshenko’s arrest was a response to her impertinent behaviour during the trial. Not only did she offend the judge but she also indirectly offended the ruling elite, including the president himself. “Let’s have no illusions, Viktor Yanukovych is not a man of a high intellectual calibre, but he is a man in love with himself and she provoked him to arrest her. He might behave like a pig himself but he will not allow anyone else to behave towards him in a similar way,” Chornovil notes.
The decision to arrest Tymoshenko raises some serious doubts. Such preventive measures should only be taken with regard to people who dodge trials. She always turned up for the trial, even if it was often late. However her absences were always explained, and in a city of four million people being late is not unusual.
It was not the first time Tymoshenko was detained. She was arrested for the first time as a director of Ukrainian Petrol in 1995 and charged with smuggling money to Russia. $26,000 in cash was discovered in her hand luggage. She spent a day and a half in a cell and the case was thrown out in 2001 after the act was decriminalised. During the same year, Tymoshenko had to step down as vice-prime minister and was later arrested for corruption. She spent 42 days in jail in the Kyiv district of Lukianovka, becoming the main symbol of resistance against President Kuchma. At that time, the campaign “Ukraine without Kuchma” was starting to unfold.
In her latest arrest, Tymoshenko has ended up in the same cell that she was in ten years ago. It has been revamped, but the conditions are still harsh. There is only cold water in the taps which must be heated if you want it hot. The prisoners have the right to take a shower two times a week but the water is also cold. There is a TV and a fridge in the cell, gifts from her party colleagues. However, Tymoshenko does not eat food in the cafeteria, but only what is brought to her by her family and friends.
On October 11th 2011, the judge sentenced Tymoshenko to seven years behind bars and banned her from holding public positions for three years. Additionally, she has to repay 1.5 billion hryvnas (around $180 million dollars) to make up for the alleged damages she caused to the Ukrainian operator of the Naftogaz pipelines. By imposing the verdict, the judge agreed entirely with the prosecution.
This is certainly not the end of Tymoshenko’s adventures in the courtroom. Halfway through October 2011, the Ukrainian Security Service, SBU, laid out another criminal case against Tymoshenko related to the years between 1996 and 1997 when she headed the company United Energy Systems of Ukraine. According to the SBU, she colluded with Pavlo Lazarenko, the prime minister at the time, to shift the company’s Russian debt to the state budget. The punishment for this crime can mean up to 12 years in prison. The Prosecutor General of Ukraine has also taken an interest in United Energy Systems of Ukraine. Other investigations are also under way against Tymoshenko, including irregularities with the purchase of ambulances for village clinics, misappropriating funds from the sales of greenhouse gas emission quotas and buying vaccines.
Yulia Tymoshenko’s arrest has drawn a lot of criticism from the opposition. Celebrities inside and outside Ukraine have called for her release. The boxer and leader of the political party Strike, Vitali Klitschko, was getting ready for a fight with Polish boxer Tomasz Adamek in Austria at the time of the trial. However, he returned to Kyiv for several days, later saying that for him, the real battle was taking place in Ukraine, not Austria. Klitschko was not alone. There were calls for Tymoshenko's release from Ukrainian intellectuals and artists (Ivan Dziuba, Dmytro Pvlytschko, Maria Matios and Ruslana), as well as from the clergy and politicians, including the Polish European MP, Marek Siwiec. But the court remained unmoved.
The verdict has come repeatedly under fire from the opposition, but not once did they manage to organise a mass protest in Kyiv. The demonstrations of the opposition that did happen were embarrassing. A tent city was set up outside the court. Supporters who were brought into the city from the provinces sat around playing cards and eating sandwiches.
Her opponents camped nearby. It was common knowledge that the anti-Tymoshenko demonstrators were paid, and this was proved by journalists more than once. A deputy of the Party of Regions, Oleh Kalashnikov, once famous for beating up a journalist and a cameraman, bribed somewhere between several dozen to several hundred demonstrators. He also set up speakers to “shout-down” the speakers of Yulia Tymoshenko’s supporters with his speeches and the song “We Unite”. Several inhabitants from the surrounding houses were driven to the edge of having a nervous breakdown as a result of the constant noise, and eventually the singer and composer of the song “We Unite”, wrote an open letter in which he assured the song was being played without his agreement and apologised for any inconvenience.
It’s in the numbers
Opposition politicians were not able to bring masses of people to the street, despite the common belief, especially in the West, that Tymoshenko remains one of the opposition’s most popular politicians. In fact, very few in the West remember that she is one of the politicians with the worst ratings. The results of opinion polls from the Razumkov Centre conducted after the verdict in mid-October 2011, can be easily interpreted.
Do you support the actions of the following politicians?
I entirely support him/her
I support some of his/her activities
I don’t support his/her activities
The difference between support (combined) and rejection
Arseniy Yaceniuk (leader of the opposition party – Front for Change)
Support for Yulia Tymoshenko ranks only third among opposition politicians, after Arseniy Yaceniuk and Vitali Klitschko. Even Yanukovych has a better approval rating than Tymoshenko. If we consider the negative ratings, Tymoshenko’s situation is much worse. The number of her opponents exceeds the number of her supporters by more than 20 per cent, and the ratings are even worse than those of the incumbent president. This provides an answer to the first question as to why Ukrainians did not take to the streets: they didn’t want to defend nor condemn the ex-prime minister, says political scientist Volodymyr Fesenko. He adds that only one in ten Ukrainians is ready to fight for political issues on the street, while protests against the falling standards of living would draw much larger crowds.
Another Ukrainian political scientist, Kost Bondarenko, disagrees. In his view, Ukrainians are increasingly indifferent, growing accustomed to living a part of their lives away from the state. No matter what the state does, Ukrainians know how to get by with reserves, and the help of family and friends. Bondarenko sees this as a kind of budding civic society.
The results of opinion polls at the beginning of October also show that Ukrainians think Yulia Tymoshenko is guilty. 46 per cent of respondents held this opinion while 36 per cent believed that the prime minister was not guilty. Meanwhile 54 per cent believed she was persecuted and 25 per cent thought that the trial was all about justice. At the same time, however, they don’t approve of the actions of President Yanukovych. According to another opinion poll by the Razumkov Centre, only a mere 6.3 per cent of Ukrainians think that the present authorities do not violate the law like their predecessors did.
Bondarenko adds that this is why people do not see Tymoshenko as a real alternative. “There was a joke after the election which makes the situation much clearer. The head of the Central Election Committee comes out to announce the results of the vote by saying, ‘I have good news and bad news, the bad news is that Yanukovych has become president, the good news is that Tymoshenko did not,’” laughs Bondarenko.
What the trial really showed was the weakness of Tymoshenko’s Fatherland Party, the core of the Yulia Tymoshenko Bloc. “Where are the people who are meant to be its formal members? There should be about half a million people,” asks political scientist Volodymyr Fesenko rhetorically. Her supporters are going through a crisis as a result of the policies Tymoshenko pursued in her party. The political scientist, Taras Berezovets, adds that the Yulia Tymoshenko Bloc was a leader-based party. Its approval ratings depended on her popularity and she is now behind bars. Some local activists are wondering whether to accept the informal leadership of Oleksandr Turchynov or join the other opposition parties. If this happens it might enable the right-wing parties, Freedom, and Front for Change, to emerge as the main opposition parties.
Since coming to power, Yanukovych has not met with such massive criticism abroad as he is having now with the Tymoshenko verdict. Criticism of the ruling came from a wide spectrum of countries: Russia, Canada, the United States, the European Union, including Poland, Estonia, and the United Kingdom. Even the Secretary General of the United Nations, Ban Ki-moon, has said through his spokesman that the Ukrainian judicial system was unfair. Nor did international organizations like Freedom House, Amnesty International and Transparency International remain indifferent. Soon after Yanukovych became president, they sounded the alarm that democracy in Ukraine was becoming much worse. Deputies of the European People’s Party, who cooperate with Yulia Tymoshenko’s Fatherland were also active, and even the socialists and democrats in the EU Parliament, traditional partners of Yanukovych’s Party of Regions, have expressed their discontent with the verdict.
Even Moscow officially condemned both the detention and the verdict. Moscow was concerned about voices coming out of Kyiv that the verdict or a negative assessment of the gas contract may become a reason to terminate it. Moreover, if Yulia Tymoshenko was guilty, Vladimir Putin might also be guilty. The Russians restrained themselves from giving political statements, but the whole affair may mean another Russian victory in Ukraine, especially if the West and the EU, in particular, turn away from Ukraine.
The West fails to understand why Yulia Tymoshenko was criminally charged if she did not personally profit financially from signing the deal. According to Brussels and Washington the responsibility is strictly political. The strongest tool to put pressure on the outcome of the verdict is the new Association Agreement which provides the framework for creating a free trade zone, much needed by Ukrainian businesses to sell their goods. During an informal summit of EU foreign ministers on September 3rd 2011, the French Minister of Foreign Affairs, Alain Juppe, made it clear, “From our point of view, the agreement will not be finalized unless the case of Yulia Tymoshenko is resolved in a positive way.”
The matter was later discussed in Yalta during a meeting of the Yalta European Strategy as well as in Warsaw at the summit of the Eastern Partnership. In Crimea, Viktor Yanukovych was levelled with some bitter words when Stefan Fule, the European Commissioner for Enlargement and European Neighbourhood Policy, said that the EU wouldn’t seek any compromise as far as values are concerned. Even the German political scientist, Alexander Rahr, who is favourably inclined towards the authorities in Donetsk argued that Europe should defend the weak and that any politician who secures nearly half of the votes in an election cannot be jailed. On October 12th 2011, the foreign ministers of Poland and Germany, Radosław Sikorski and Guido Westerwelle, voiced their concern over the verdict considering it to be “politically motivated”. Further criticism was voiced in a November meeting in Wrocław, Poland between Yanukovych, Polish President Bronisław Komorowski and German President Christian Wulff.
In response to the criticism, Yanukovych first mentioned the possibility of changing the 1962 criminal code to make it compliant with democratic standards. According to this plan, the charge under which Tymoshenko was tried would be decriminalised. Thus a change did take place but not exactly in the direction that Brussels desired. Exactly a week after the verdict was issued, the Ukrainian president started saying Tymoshenko could not be released and called on the West to respect his country. According to Yanukovych, EU officials do not believe that he does not have power over the courts.
What was it that made the Ukrainian president change his mind in a matter of days? After all, he promised European politicians that Tymoshenko would be freed. This is a question for the experts and political scientists. Taras Chornovil, once a close collaborator of Viktor Yanukovych and presently an independent deputy, guesses that there are people around the head of state which have managed to convince him that the talks with Brussels should be hardened. They also want the EU to agree to exclude Yulia Tymoshenko from all future political life. Chornovil also does not rule out the influence of the Security Service of Ukraine (SBU), who are intent on isolating Yanukovych. “The SBU now seem to be creating an illusion of political comfort for Yanukovych and a perspective for the future,” says Chornovil.
We are Europeans
Dmytro Shulha from the International Renaissance Foundation thinks it is this political comfort that put pressure on Yanukovych to go back on his decision to change the law. According to Shulha, the president had just one goal. “He is not an agent of Moscow, but he wants to possess and monopolize the country and get rid of any competition.” The European Commission cancelled Yanukovych’s visit to Brussels set for October 20th. Meanwhile Yanukovych met Dmitri Medvedev in Donetsk and Prime Minister Mykola Azarov had a meeting with Putin in St. Petersburg. Ukrainian politicians are always welcome in Russia. Yanukovych later flew on to Cuba and Brazil.
Experts are far from saying that the direction of Ukraine's foreign policy has been completely reversed. Chornovil says that not all the bridges have been burnt, but in his view, Kyiv cannot meander between Moscow and Brussels forever. Up to now, the Ukrainian authorities have managed to destroy one of the few positive stereotypes built up by Yanukovych's predecessor Viktor Yushchenko. “Not that I approve of the former president, but he managed to convince the West that Ukraine could be trusted. All of that has been destroyed. We are seeing something completely different now: shortcomings of the judicial system and the concentration of power. We are going back to the stereotype of Ukraine under Leonid Kuchma,” says Chornovil.
In the autumn of 2011, an informal movement called “We are Europeans” was born. The movement calls for all European politicians not to look at Ukraine from the perspective of its authorities. Its members claim that ordinary Ukrainians should not be punished for the actions of politicians who do not respect human rights and persecute the opposition. The signing of the Association Agreement, therefore, is a vital step. “The Ukrainian authorities should understand that it is only their disrespect for European values that stands in the way,” stresses Shulha.
Piotr Pogorzelski is a correspondent of Polish Public Radio (Poskie Radio) in Kyiv.
Translated by Bogdan Potok
This article original appeared in New Eastern Europe 1(II) / 2012