Archive for October 12th, 2011

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Guilty – 7 years – But what next?

October 12, 2011

Well, former Prime Minister Tymoshenko was found guilty of misuse of office and coercing Naftogaz Ukraine into signing a deal that was not in Ukraine’s interests, at least not long term interests.  She was sentenced to 7 years.

At the time of signing what was certainly not a fantastic deal, circumstances may have appeared that a solution, even if revisited and renegotiated should she have won the Presidential election rather than lost it, was better than a continued stand-off between Ukraine and Russia.  Certainly the EU nations were happy the gas was turned back on.  However, she lost.

The crimes were committed under rather old Soviet legislation designed to keep those in authority subordinate to those in ultimate authority.   No Ukrainian government in the past 20 years saw fit to remove those laws from the books of course, including Ms Tymsohenko’s own government when it had the opportunity.

In the meantime, under severe pressure from the EU, who remain split on how to deal with events, the current President has tabled a motion to the parliament to decriminalise the offences that Tymoshenko has just been found guilty of.  That would then allow her release and also allow her to run in democratic elections.  With her popularity at only 13% even after such a sustained time in the public eye through this trial and at most only a few thousand supporters turning up to her final day in court today (having watched it on TV live the number couldn’t be many more), as of the timing of this post, the current authorities are still more popular than she is despite numerous unpopular reforms.

Unfortunately the DCFTA and AA are being negotiated together and as a single package at present, when had they been done as separate issues, albeit running concurrently, the DCFTA could have been signed off and ratified whilst the AA agreement which is far more political in an ideological sense, could have lingered in the ratification wilderness.

There is also the language of the EU to consider.  It has consistently  referred to “selective application of the law” which in no way can be read to say Tymoshenko is innocent of the crimes alleged.  To infer guilt or innocence prior to the ruling would of course be interfering in the judicial process of Ukraine, something they will have been keen to avoid directly.

So what next?

There will no undoubtedly be appeals by Tymoshenko and team against the conviction, so this has the potential to rumble on and on for quite some time unless the parliament adopt to President’s tabled bill to decriminalise the offences under which Tymoshenko has been convicted.

Should that happen, a matter that would lead to Tymoshenko’s release, quashing of criminal conviction and provisions baring her from political entry in elections in the future, the EU is likely to see that as sufficient to ratify everything on the table.

It would undoubtedly mean a return to the RADA for Tymnoshenko in October 2012, even with such currently low popularity polling figures.  All it would achieve as far as she is concerned is the asbestos application of absolute parliamentary immunity from prosecution, a perk misused by MPs of all parties on a daily basis.

However, looking further down th line, even this would not be an end to the matter.  There are still issues and outstanding investigations against her over AAUs and Kyoto Protocol infringements, vaccinations, vehicle fleets etc raised by the Kroll Inc investigation into her governmental activities that are still outstanding.

Will these simply then be allowed to gather dust given the EU pressure to have her compete in next years elections despite there being enough reason to investigate these matters?

Will her return to the RADA, should the Presidential bill get through the parliament (and there is no guarantee of that) mean her asbestos immunity that comes with it require such investigations must lay on file until she is able to be prosecuted again?  It would be a very handy way to suspend all pending investigations against her and keep the EU happy.

Unfortunately for the EU, so dire and bereft of ability is the Ukrainian opposition, that despite the fact very few in the EU diplomatic circles see Ms Tymoshenko as the champion of democracy she claims to be, she still remains the closest thing to an opposition member that would make any election interesting.  The failure of politicians such as Arseny Yatseniuk to gain despite both Tymoshenko and current authorities popularity plunging, leaves the EU having to try and fight the corner of Tymoshenko for the sake of plurality and democracy regardless.

What they cannot do, no matter how much they do that, is reengage a very disenfranchised Ukrainian public who are faced with, as ex-President Kuchma rightly pointed out, a choice of the bad or the very bad.  No matter how many of Yatesniuk’s ideals match those of the west, the EU cannot make him more popular with the Ukrainian public any more than NATO has been sold to them as a good idea.

In some ways, the fact that even if Ukraine was a democratic Utopia today, it would not speed its way into the EU fold is a good thing.  With 2030 publicly muted by the EU as the most likely timescale for further enlargement, even if Yanukovych wins a second term, Tymoshenko two terms after that, both would be consigned to the political history books before the EU would be prepared to allow Ukraine entry as a Member State looking at their muted time-lines for enlargement..

A caveat to that of course, is the geopolitical scene may change drastically when Mr Putin takes over the reigns of Russia once again next year.  Far too much political energy has been put into the EaP and in particular Ukraine to allow it to now be lost.  Time-lines and thought processes may change depending upon the actions of actors external to, but influencing, both Ukraine and the EU.

Once all the huffing and puffing, lamenting and wailing of the next few days has subsided, we will see what happens over the next few months.

The rule of law, such as it is and under the existing Criminal Code, has run its course and provided a result despite being politically unpalatable.  Now politics can change the rule of law and calm the waters somewhat without interference during on-going proceedings.

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