Some final intrigue in the Tymoshenko trial

Some final intrigue in the Tymoshenko trial
# 05 October 2011 22:21 (UTC +04:00)
Baku-APA. The trial of Yulia Tymoshenko, former prime minister of Ukraine and opposition leader, is entering its final stage. The gap in the hearings for preparing the judicial opinion will last until October 11. What will the verdict be? Will she stay in prison or be released? What will be the price for her and for Ukraine? No analyst can give a precise answer to these questions, APA reports quoting RIA Novosti.

Showing weakness

The intrigue surrounding the trial is becoming even more complicated because of the ultimatum made by EU and U.S. leaders to the Ukrainian government and personally to President Viktor Yanukovych: Tymoshenko must be released and be allowed to participate in the elections (under Ukrainian law people with a criminal record lose the right to run for office).

This ultimatum was made in early September. Tymoshenko’s trial was resumed on September 27 after a two week break. Many expected her to be released but nothing has changed - the trial was a stage of bitter conflicts and Tymoshenko was kept behind bars.

Did the ultimatum have no effect on Viktor Yanukovych? At the Eastern Partnership summit in Warsaw on September 29-30, EU leaders repeated the demand that Tymoshenko be released both on and off the record. For the time being, the current break in court hearings and the tedious wait for the verdict are the only indirect consequence of this demand. This trial was not launched only to be crowned with a verdict of non-guilty, even under Western pressure.

The trial was initiated not only for publicly punishing the current leadership’s main political rival and barring her from politics but also for proving legally what huge losses the national treasury sustained because of her allegedly unjustified decisions.

The second goal of the trial is to undermine the legitimacy of the 2009 agreement on Russian gas supplies to Ukraine.

Such a judicial challenge requires at least some results. Moreover, Tymoshenko’s acquittal would be a complete political and legal defeat not only for the initiators of this case but also for the Ukrainian government. The current Ukrainian leaders are reluctant to show weakness.

Political overtones

Even in the early stages of the trial, many experts believed that a suspended sentence would be the best option for the government. In that case, Tymoshenko would remain free but her guilt would be confirmed legally and she would be barred from running in parliamentary and presidential elections as a result of her conviction. The Ukrainian leadership knew at that time that Tymoshenko’s arrest or prison sentence would jeopardize relations with the West, and this is why she remained free for a long time, unlike some of her government colleagues.

However, some Ukrainian leaders and Yanukovych’s closest entourage insisted that Tymoshenko must be sent to prison and for a long time. Their view prevailed in early August when the trial was already on. The proceedings at the trial also probably irritated some people.

Tymoshenko the defendant went on the offensive, hurling accusations and discrediting the court and the Ukrainian government in every possible way. She was placed under arrest for her conduct, and the prosecution requested seven years in prison and compensation of losses totaling over 1.5 billion grivnas (almost $200 million).

Moreover, the article of the Criminal Code under which Tymoshenko has been accused (abuse of power and official authority, resulting in grave consequences) does not provide for a suspended sentence or amnesty.

Possible scenarios

There are several possible mild outcomes of the trial, which would allow the Ukrainian government to respect EU wishes and save face.

The first scenario involves a milder verdict and a suspended sentence. The article under which she is accused could be linked to Article 69 and Article 75 of the Ukrainian Criminal Code. Judicial statistics show that in 2008-2009 the absolute majority of the accused under the same article received a suspended sentence and only four (out of 119) were sentenced to terms from two to 10 years, while 18 people got off with fines. Things became tougher in 2010, but still half of all defendants under this article (27 out of 52) received suspended sentences, 19 from five to 10 years, three from two to five years, and another three were fined. However, a suspended sentence would not allow Tymoshenko to run for office. So, one of the EU demands would not be met.

The second scenario involves remanding the case. The trial revealed inconsistencies and other grounds for additional investigation. A decision to this effect makes it possible to continue manipulating the situation, keeping Tymoshenko on the hook for an indefinite time and leaving open the opportunity to close the deal if need be.

However, remanding the case would reflect badly on the performance of the Prosecutor’s Office during the investigation. Meanwhile, this office is one of the key drivers of the Tymoshenko trial. Moreover, the defense has already called for the case to be remanded. So, the court and the political curators of the case are unlikely to offer such a present to the ex prime minister.

The third option involves decriminalizing the Criminal Code’s article on abuse of power. It is a legal anachronism and can be used with a large degree of bias against the majority of current and former leaders. Here’s one example. Former governor of the Kharkov Region Yevgeny Kushnaryov, one of the most active members of Yanukovych’s team during the 2004 elections, was arrested in 2005 for abuse of power, notably misusing budget funds for the construction of a metro.

The opposition has already drafted several bills to decriminalize the articles on abuse of power by government officials. The Ukrainian president has also submitted a bill that would end criminal liability for economic crimes. Although Part 3 of Article 365 ("Tymoshenko’s article") is not on the president’s list, it is rumored in the presidential entourage that parliamentarians may include it.

Yanukovych reportedly hinted at this option during his meetings with his European colleagues in Warsaw. But there is one catch to this scenario - decriminalizing said article would not free one from responsibility for the committed crime. A defendant may only avoid prison time by reimbursing the losses.

In Tymoshenko’s case, the losses are estimated at about $200 million. However, judging by official income declarations, Tymoshenko only received a salary (as a prime minister and people’s deputy) in the last few years and had no savings, expensive property or big bank accounts. Who will pay for the losses then?

If payment for the losses is a mandatory condition for her release, decriminalization is pointless. Indicatively, Tymoshenko herself (if we are to believe Ivan Kirilenko, the leader of her parliamentary party) is against it. She objects to any legal admission of her guilt.

For the time being, many experts consider decriminalization the most likely mild outcome of the trial. The ten-day pause in the hearings is evidence of this. If we see legal actions confirming this scenario during the Verkhovnaya Rada’s next plenary week, Tymoshenko’s fate will become clearer but not completely.

Confusion over the reimbursement of losses may lead to another trial. Tymoshenko herself will dispute any verdict except not guilty. But decriminalization (in the event of Tymoshenko’s release) will allow Kiev to save face and avoid trouble with the EU over the Association Agreement.

However, there in no guarantee that Tymoshenko will be released. The pause in the trial was taken for contemplation but the scales may tilt toward a verdict of guilty. Yanukovych hates being pressured into anything.

Excessive European pressure may lead him to make a decision contrary to Western expectations. There may be people in his entourage who will try to persuade him that the EU will not refuse to sign a new agreement and that the main thing is to keep Tymoshenko behind bars.

Ukrainians remain silent

What if Tymoshenko remains in prison after the verdict is pronounced? Relations between Ukraine and the EU are bound to cool off. There will be problems either with the singing of the Association Agreement and a free trade area between Ukraine and the EU or during the ratification process.

From there everything will depend on Ukraine’s response to this cool-off. It may feel hurt by the West and Europe and turn towards Russia. However, another instance of strategic hovering between the West and Russia is no less likely.

There is little chance of domestic upheaval if Tymoshenko receives a long prison term. Ukrainians did not protest her arrest. According to sociologists, they are more likely to be angry over socio-economic problems rather that political conflicts between the government and the opposition.

Needless to say, opposition-minded Ukrainians will increasingly protest the current government, but the political temperature in Ukrainian society is determined by the silent and mistrustful majority that does not support the government or the opposition.