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5 August, 2011  ▪  Ihor Losiev

The Tymoshenko Trial: Pechersk Justice Between Leipzig and Moscow

The government has failed to convince either Ukrainians or the world community that the Tymoshenko case is not politically motivated

The Yulia Tymoshenko trial raises a number of questions. She has been charged with abuse of office when she signed the gas agreements with Russia in January 2009. The prosecution maintains that they have caused significant harm to Ukraine. Both the issue of the abuse of office and the alleged harm are highly contentious and dubious. Of course, it would be much better if Russia sold us gas at USD 100 or even USD 50. How the prosecution is going to prove that Tymoshenko could have negotiated a lower price from the gas monopolist but, being guided by private interests, failed to do so, is an open question. Moreover, the talks took place in a situation that can be safely defined as force majeure: the Kremlin had unleashed a gas war against Ukraine coupled with an energy blockade of many EU countries. Incidentally, the latter did not show any desire to support our country, even though it would have been very much in line with the Budapest protocol on granting Ukraine guarantees in recognition of its voluntary renunciation of the world's third-largest nuclear arms arsenal.

Could a better result have been achieved in such circumstances? Now there is a question for Viktor Yanukocyh: What was he guided by, when he signed the shameful Kharkiv capitulation in April 2010 according to which, Russian troops will control our territory for another 40 years, being stationed in the Crimea and using tens of thousands of hectares of land in a resort area, thousands of facilities and infrastructure, etc. almost free of charge? What are the losses in this case? For some reason no one wants to do the Math.

There is no doubt about the political motives behind the Tymoshenko case. In the European Union they say that a system has taken shape in Ukraine, in which the loser in an election must end up behind bars. It does not matter that no one can find any particular mercenary motives in Tymoshenko's actions. As it frantically searches for the tiniest piece of compromising evidence against the ex-prime minister, the current government would hardly hide any such facts if they really existed. Some supporters of the Yanukovych administration and pathological “electoral abstainers” claim that Tymoshenko had political motives for signing gas agreements with Vladimir Putin, namely to win the presidential election. But she lost the election largely because of these agreements which were a constant target for criticism by her opponents.

If Tymoshenko had dropped everything back then in 2009, resigned in protest against the Kremlin's blackmail and Viktor Yushchenko’s sabotage and let the latter negotiate with Russia himself (I am curious to know what he would have done), she would currently be president of Ukraine. So the Moscow gas agreements are, in fact, her political failure, a political mistake that may entail political and moral responsibility but not in the least criminal liability. Politically, the ex-prime minister has already been brought to account in the presidential election – not only for the expensive gas but also for trying to be excessively comfortable with Putin and for her pro-Russian illusions. The fact that Tymoshenko is being incriminated, can in no way be the subject of consideration from the standpoint of criminal law, because in that case, all leaders of the Ukrainian government in the past 20 years, including Yanukovych who was prime minister twice, once under Leonid Kuchma and once under Yushchenko, could be taken to court. However, the Party of Regions members are still delirious with the feeling of absolute power, so legal absurdities do not stop them. However, they have miscalculated, overestimated their abilities and failed to carefully foresee the possible consequences. After Yanukovych promised in Strasbourg to the live transmission of the trial on TV, his administration had no room for maneuver. Now everyone could personally see their assessment of the case, simply by switching on the TV. The government realized it had made a mistake, and the court banned TV cameras from the courtroom.

The opposition is now calling on EU structures to do the same thing to the organizers of this clearly politically motivated trial as they did to Russian officials involved in reprisals against lawyer Sergey Magnitsky: more than 200 Russian bureaucrats were banned from entering Western countries. The U.S. Congress is preparing to pass a law to this effect. These Russian officials have billions in Western banks and property abroad. Their children study and undergo medical treatment there. So the scared Vladislav Surkov, first deputy head of the Russian Presidential Administration, personally paid a visit to the US in a bid to avert this legislation.

European politicians entertain no illusions regarding both Ukraine’s and Russia’s justice systems. Live transmission from the Pechersk courtroom was further proof of their most pessimistic opinions. So the Party of Regions has every reason to ponder on this.  The PR oracle of justice, Volodymyr Oliinyk, has already spoken on Yevgeny Kiselov’s “Big Politics” TV show on the Inter Channel, expressing his outrage over the fact that the opposition is drawing up a list of judges and investigators who could be banned from entering the West in connection with the Tymoshenko case.

A TRAP FOR THE GOVERNMENT

The main thing, which is also the most dangerous one for the current government, is that this case sets a precedent. From now on, no president, oligarch or politician will be able to feel safe. It has opened an era of political vendetta. When the Party of Regions loses power, which is bound to happen at some point, several thousand of its prominent leaders will have to immediately flee Ukraine, in the face of revenge, sought by those whom they are strangling today. In other words, the civilized, peaceful and legal transition of power from one political force to another will be impossible. A loss in an election will mean a guilty verdict and the confiscation of property. (it is well-known that the Prosecutor General's Office has already seized Tymoshenko’s and Yurii Lutsenko’s property without actually waiting for verdicts in their trials.) Accordingly, the Party of Regions will cling to power with every last bit of strength, for fear of criminal persecution. This could result in a transition from peaceful parliamentary forms of political struggle to those of a totally different kind.

VOX POPULI

The way Ukrainian citizens view “the triumph of justice” as executed by Judge Kirieiev and Judge Vovk became vividly clear on the “Shuster LIVE” show on the First National Channel. On the request of Leonid Kravchuk, the audience was asked to answer the following question: Can that which is taking place in the Tymoshenko case at the Pechersk Court, be considered administration of justice? 84% answered in the negative. If this is not justice, then what is it?

However, there was one more question: Is Tymoshenko behaving correctly in court? 60% condemned her conduct. This is a vivid demonstration of a deplorable feature of the Ukrainian mentality, because the two answers totally contradict each other. If there is no justice, no fair and objective court (according to 84% of the respondents), how can the victim of the reprisal behave in a “correct” manner? Should she make lawlessness appear legal with her meekness and gentleness?

This is yet another proof of the significant differences between Ukrainian and European thinking. The latter is based on the centuries-old tradition of Aristotelian logic which has long permeated every brain cell of the average European. In the West, if A=B and B=C, then A=C, and no one will deny this. But not so for Ukrainians, who eagerly agree that A=B and B=C, but are in no hurry to cone to the only correct conclusion that A=C. When they say A, Ukrainians may take a very long time to say B. How can a person behave “correctly” in what they recognize as an “unfair court”?

Unfortunately, such a mentality trait has already caused us a lot of damage and will continue to do so. This is fundamental absurdity, a conscious or unconscious refusal to think logically and hence responsibly and the expression of a very dangerous spiritual infantilism which no nation can afford, particularly in the 21st century. This is what Ukrainians share with Russians, and this is what sets them apart from Poles with their many years of Catholic schooling and attention to logic and strict mental discipline, which is characteristic of Western Christianity. Even though there is a huge distance from intimate logical-intellectual forms of everyday culture to the everyday behavior of large masses of average people, there was a good reason why, after toppling communism, Poland did not reelect General Wojciech Jaruzielski as their president. There is an equally good reason why Ukrainians, after they proclaimed independence, elected communist party bureaucrat Leonid Kravchuk as their leader. This has determined many features of our country's development in the past 20 years. Poles did the logical thing, while Ukrainians did something illogical. And they continue to do so.

This also holds true for the justice that is meted out in the Pechersk Court. By declaring that this trial is no administration of justice Tymoshenko shows that she does not want to participate in what she perceives as a farce. In other words, she is acting in a logical and consistent manner. This cannot be said about her critics who do not think higher of the trial than she does. How should she behave in a place where the judge rejects 99% of the complaints made by her representatives, where she is consistently denied the right to speak and where each time, prosecutors demand that she be deprived of this right and want her to say that, which is required for the prosecution, completely forgetting that under Ukrainian laws, no one is obliged to testify against themselves.

HISTORIC PARALLELS

Tymoshenko's conduct in the courtroom is similar to that of Narodnaya Volya members and Soviet dissents in, respectively, the tsarist and Soviet court – when everyone understood that the final verdict was known from the very beginning.

Tymoshenko's behavior is almost angel-like compared to that of Bulgarian communist and Comintern Georgi Dimitrov at a Nazi trial in Leipzig. When the Nazis came to power in Germany in 1933, they badly needed to discredit the communists as their rivals in the workers’ movement and socialist propaganda. To this end, they arranged for the Reichstag to be set on fire. The arson was executed by Marius Van der Lubbe, a Dutchman who was obsessed with fire. However, it was Dimitrov, who was in Germany at the time, who was charged with having organized the arson. This was as much a politically motivated trial as the one now administered by Judge Kirieiev.

Dimitrov was ostentatiously disrespectful. He addressed the presiding judge, as MP Andrii Shkil recently recalled, “Your dogheadedness” and insulted Hermann Göring, without mincing words. Eventually, he completely shut him down and declared victoriously: “You are afraid of my questions, prime minister!” It is well-known that Göring was, among many other things, the Prime Minister of Prussia. Dimitrov made sarcastic remarks, laughed at and ridiculed the court. He quickly assumed all the functions of the prosecution and turned the entire leadership of the Third Reich into defendants. The Nazis cursed the day and hour when they decided to take him to court. However, although in the early 1930s Germany still had some remains and vestiges of European tradition, this country subsequently became increasingly more like the USSR. In the Nazi trial, Dimitrov was allowed to say almost everything he wanted. Journalists and simply curious people were allowed to be present in the courtroom. Judges reacted to the arguments advanced by the defendant and gave the impression of lawyers, who were capable of making independent decisions.

Dimitrov was acquitted, and neither Göring nor Hitler could change anything, because the trial was competitive and the defense honestly beat the prosecution. The Nazi bosses swallowed this bitter pill and, to their credit, did not try to pursue the case in dishonest ways. They accepted the loss. Meanwhile, in the Tymoshenko case, there is a bunch of other criminal cases being prepared just in case she wins this one.

Later, after Dimitrov’s triumph, similar trials took place in Moscow. “Enemies of the people” from among the highest leadership of the VKP(B), the army and the Soviet government stood before court. However, all these cases were as different from the one in Leipzig as chalk from cheese. The Moscow pseudo-trials were carefully orchestrated from beginning to end and had to be executed strictly according to plan, without any surprises. Every defendant was subjected to intimidation and terror in prison before and during the trial. Some of the victims, such as Nikolay Krestinsky and Nikolay Bukharin, made certain attempts to speak in the style of Dimitrov, forgetting that they were facing Soviet, rather than Nazi, judges. Prosecutor Andrey Vyshinsky immediately announced a break, and the defendants had to communicate “closely” with specialists in the field of prison matters. After such breaks they said the things that the butchers of “justice” wanted to hear and in in the prescribed manner to boot. Strong measures were used against them: torture (primarily in the early stages of the process), blackmail and intimidation (threats to kill their family members, arrest close friends, exact revenge on relatives, etc.) as well as promises “on behalf of the party” to eventually grant them life if they behaved well in court. They were, of course, taken for a ride. If Dimitrov had stood trial in Moscow, he would have had no chance of acquittal. But if he had behaved in Leipzig “correctly” in the Ukrainian sense, he would not have had any there, either.

Of course, the Pechersk case is in no way similar to the one in Leipzig. In its essence, the form and style, as well as in the prevailing atmosphere in the courtroom bears a much stronger resemblance to the Moscow cases. Tymoshenko’s conduct is more similar to that of Dimitrov, rather than the performance of poor, scared and broken people in Stalin’s Moscow who trembled over the fates of their wives and children (they did not know exactly what the Soviets would do to them, even though they had a pretty good idea, which fueled their fears even more).

We live in the 21st century, and both the USSR and Nazi Germany are in the past. There is the world community which can observe the show at the Pechersk Court. Though fragmented, there is nonetheless a civil society in Ukraine. And this cannot be ignored. After all, history will punish those, who do not take heed of such essential circumstances.


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