Yesterday in Ukraine, the country’s most prominent opposition leader – and one of the heroes of the Orange Revolution – Yulia Tymoshenko – was sentenced to seven years in jail for harming Ukraine’s interest in gas negotiations with Russia during her time as Prime Minister of Ukraine. However, as the NY Times notes:
European leaders have condemned the case as politically motivated, and hinted that they are unlikely to ratify a free trade and association agreement with Ukraine, a project four years in the making.
This sentence will further complicate the uneasy foreign policy position of Ukraine, a country located at the intersection of EU and Russian interests. Both Moscow and Brussels have their own reasons (pragmatic and normative, respectively) to take critical stands toward the Tymoshenko trial. In this situation, President Yanukovych hopes to reduce criticism from abroad, using Moscow’s aversion to the “Orange Government” and Brussels’ policy – lobbied mostly by Warsaw – to present Ukraine as the leading country in the “Eastern Partnership,” with good chances to achieve a status vis-a-vis the EU that is comparable to that of Norway or Switzerland. Yet it seems that Yanukovych seriously underestimated the possible political repercussions from the EU. To me, it is hardly imaginable that with Tymoshenko behind bars, Ukraine will be able to retain its role of the most Europeanized EU partner from Eastern Europe. It remains to be seen whether Moscow will consider taking advantage of the situation.
Tymoshenko’s conviction illustrates several features of contemporary politics in Ukraine. One is the increasingly uncompromising nature of political competition, the kill-or-be-killed mentality where opponents are to be destroyed, not just defeated. Secondly, the verdict also speaks to the insecurity of Yanukovych in his rule. With opposition divided, institutional power consolidated in super-presidency, and Tymoshenko’s own popularity a shadow from the hay days of the Orange revolution, it seems unlikely she could have unseated Yanukovych in an electoral contest. But instead of letting her quietly slide further in the political oblivion, Yanukovych regime went for the kill. While in the short-term it may seem like a victory for Yanukovych, in the longer term today’s verdict may backfire and give impetus for the opposition to unite and even boost Tymoshenko’s own failing popularity. Thirdly, the verdict is also revealing of the Ukrainian elites’ perceptions about the likely reactions in western capitals. The EU in particular likely did not convince Yanukovych and his entourage that the future of Ukraine-EU association agreement and the free trade agreement is directly linked to the Ukrainian state conduct in the Tymoshenko case. Stern statements from western capitals, unpleasant as they are, by themselves are of little consequence for the Yanukovych regime. The verdict and Tymoshenko’s future can still take a very different turn if the EU makes conditionality explicit. The conviction could be overturned on appeal, or the article under which Tymoshenko was charged could be decriminalized by the parliament adopting amendment to the criminal code. With the Tymoshenko conviction, the regime is testing the boundaries of the possible in the eyes of the west. If it gets away with jailing the most popular opposition politician and barring her from the possibility to run in the next elections, it will take it as the assurance that the boundaries are wide indeed.
I am somewhat surprised that the Yanukovych regime managed to pull off what Kuchma couldn’t in 2001. I think (or probably hope) that while Yanukovych has won this battle with his arch-rival Yulia Tymoshenko, he has not won the “war.” It seems that he is aware of the precariousness of his victory. He stated that the court ruling isn’t final and that the conviction is only based on the current criminal code of Ukraine. Since his election to the presidency, Yanukovych has tried to bring the judiciary under the executive branch’s firm control by passing new legislation, tinkering with the jurisdiction and powers of the High Council of Justice and the Supreme Court, and pressuring and side-lining pro-Tymoshenko members of the judiciary.
However, he has not been entirely successful. For example, Vasily Onopenko, the chair of the Ukrainian Supreme Court, where Tymoshenko’s appeal will end up, is a long-time ally of Tymoshenko. Granted, Judge Onopenko is under attack himself, but he has weathered the opening of criminal cases against both his daughter and his son-in-law in 2010-2011, as well as an attempt to remove him through a no-confidence vote in March 2011. Onopenko’s survival in the top post of the judiciary demonstrates that the judiciary is ideologically diverse and its factions mimic divisions in the political system more broadly. Tymoshenko probably has many other overt and closeted allies among judges both at the appeals court and at the Supreme Court. We also shouldn’t forget that Judge Zamkovenko, who released Tymoshenko from jail back in 2001, did not seem at all to be on her side (or impartial) when the case started. He was widely seen as obedient (послушный) yet he ended up delivering a significant blow to the Kuchma regime. Zamkovenko has said in interviews that Tymoshenko exerted significant pressure on him and he felt like he was between a rock and a hard place. It seems to me that whatever resources Tymoshenko possessed in 2001 to “pressure” judges, she possesses as much, if not more of them, today.
Finally, while I can’t comment on the effect that this verdict will have on Russian-Ukrainian relations on the gas issue, I can’t help but think that the Russian regime got a chuckle out of the international outcry to the Tymoshenko verdict. The European foreign policy chief, Catherine Ashton, wasted no time in calling the Tymoshenko conviction “politically motivated” and said the EU is disappointed. By contrast, the European Court of Human Rights ruled this summer that Khodorkovsky’s lawyers had not provided significant evidence to back up “claims of political motivation behind [the Khodorkovsky] prosecution.”