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30 August, 2011  ▪  Rostyslav Pavlenko

Wrong Move

Having started rough play against all warnings, Ukraine’s regime finds itself in a deadlock

Chess players mark obviously weak and eventually frustrating moves with a question mark, with double question marks used for blatant mistakes. The analysis of events unfolding through the summer of 2011 suggests a “??” for the arrest of Yulia Tymoshenko. Although the negative consequences for the regime have not been so obvious yet, a series of processes has been launched which will probably debilitate the government and cripple the country on the whole.

CORNERED

There are several explanations for the regime’s actions, and the so-called “gas version” is among those most often mentioned. According to experts’ reckoning, gas prices north of $500 per 1,000 m3 have put metallurgy and chemical industries on the brink of unprofitability. This situation had long been predicted, yet no steps were taken towards energy conservation, reducing dependence on gas imports from Russia (even in light of the Kremlin’s inclination to inflate prices), or at even expanding the country’s own energy production. Ukraine de facto had to face the challenge which the West had to solve in the 1970s, and Central Europe in the 1990s: the shock caused by soaring prices for energy carriers.

This shock is never well-timed, but for the incumbent government it is particularly dangerous, as it entails lower profits for enterprises run by their supporters and growing costs for the population and consequently a deterioration in the standard of living and total disillusionment with “the team of experts.” Let alone the fact that the blow was dealt by those perceived as a malleable exterior force, if not allies. The Black Sea fleet deal and promises to promote Russian to the status of an official language were seen as devices which would certainly bring down the price of gas. What followed was an epic disappointment.

The Russians seem to easily foresee Kyiv’s artless schemes, and put forward conditions unacceptable to any administration which will rule on its own in Ukraine. Either join the Customs Union (and thus let Moscow take over foreign economic policy), or surrender the gas transport system to the Russian Federation (together with the money paid for transit). Besides, they create such conditions under which Russia, through manipulating gas supplies, can force the Ukrainian government to “present” it with any enterprise it may find interesting enough. And with the “Sechin memorandum” in mind (a list of Ukraine’s enterprises coveted by Russia, sent to Kyiv last year in the spring), it appears that the Kremlin’s gargantuan appetite will let nothing pass by.

In both cases, Moscow cites Belarus as an example for Ukraine, the last instance of this being just a couple of days ago, on August 15. However, it is exactly the state of the Belarusian economy and its government’s undermined stability that strongly caution against following that line (for more details see UW, No.32/2011).

THE GAS BLUFF

Though they are not likely to repeat Lukashenka’s mistakes in integration with Russia, Ukraine's leaders are ready to follow him in their domestic policies. It looks as if they cannot see that they are undermining their own foundations and sliding down the same path which led the Belarusian leader into Russia's firm grip.

Conversely, our top officials seem to believe that they can engage in a “counter-game”, turn the tables and thus solve all problems in one move. After convicting Tymoshenko in court, Ukraine can denounce the gas agreements. Should Moscow turn off the gas, reserves will be used, just like in 2009. With the full capacity of gas holders about 32 bln. м3, more than 24 bln. m3 gas was pumped into storage in June (a figure which would have been normally reached by autumn). The process is in progress: Ukraine has sharply increased the purchase of Russian gas at current prices, before they have grown again.

Kyiv is showing the Kremlin both a carrot and stick. The transit fee has grown from $2.84 to a "ridiculous" $2.89 for 1,000 m3 per 100 km. In the meantime, after months of hesitation, the Higher Administrative Court of Ukraine “suddenly” agreed with Donetsk courts on stripping Stepan Bandera and Roman Shukhevych of their posthumous Hero of Ukraine awards — an act sure to please the Kremlin. This can be interpreted as an attempt to threaten on one front, and concede on another, with a view to negotiating a deal.

However, our leaders have demonstrated all the grace of an elephant as they try to apply this sophisticated strategy. Getting concessions from Russia is impossible without Europe being at least neutral, otherwise Kyiv will soon get a lesson on limits of reasonable behaviour. As the direct interests of European consumers are involved, one cannot rule out sanctions against top Ukrainian officials or their business partners — something the Ukrainian opposition has been trying to convince Europe to do for some time now.

The incarceration of a leading opposition politician is an epically stupid move. The Foreign Ministry’s sophisticated dicta accompanying this arrest, which demonstrates a total ignorance of the European philosophy of life, borders on domestic sabotage. Here is just one such misstep to consider: the Foreign Ministry said it did not expect any complications in negotiations with the EU, since for the latter “a 45 million nation” weighed more than just “an individual politician.” It would have hardly been possible to utter something more contrary to the legal foundations of the EU and the Europeans’ vision, with the rights of “individual” persons as a measure of all things.

In fact, together with Tymoshenko’s arrest, Russia got a crushing argument against any decisive steps Ukraine might take. It will suffice to add a few strokes to the portrait of our regime, which tends to resemble that of Belarus, and Yanukovych and Co. will have a first-hand experience in European isolation.

WHO NEEDS ENEMIES NOW?

Perhaps that is how one version of events appeared which is now being circulated by politicians and commentators: the President was let down by his entourage. The culprits are supposedly hiding among the oligarchs, resentful of their shrinking domestic influence or offended by the re-distribution of property, etc. Yet to tell the truth, these businessmen are not at all interested in aggravating relations with Europe given their partnerships on the other side of the border. The specific gravity of Ukrainian production in the structure of the EU trade is comparable to the statistical margin for error, thus should Europe impose sanctions, it will hardly notice the consequences. Meanwhile, for most oligarchs the aftereffects will be disastrous.

On the other hand, there is a group in Yanukovych’s entourage which is considered pro-Russian, was associated with Viktor Medvedchuk at a certain point in time, and has both possibilities and a motive to involve the head of state in a dangerous affair. The name of Andrii Portnov is often mentioned in the context of the Tymoshenko case. Portnov has occupied posts which made him responsible for “special court operations.” Ironically, he was engaged in quite close cooperation with Tymoshenko, and was even known to have participated in her openly disastrous operations (such as an attempt to seize the State Property Fund in the spring of 2008).

Portnov was also spotted by the media in Moscow during the negotiation of the gas contract which has now brought the ex-prime minister into the dock (and here a question arises, Is he going to be interrogated during the trial?). So Portnov is believed to be Medvedchuk’s man and his medium for exercising influence first on Tymoshenko, and now on Yanukovych.

If this assumption is correct, the incumbent president is a puppet in the hands of this group, and he is merely repeating Kuchma’s mistakes from the times of the Cassette Scandal. It is only now that former President Leonid Kuchma has begun hinting at the role the Russian secret services played in those events. But back then he virtually stuck to the plan imposed on him, which estranged Ukraine from the West and pushed it towards Russia. It looks like history is repeating itself.

We cannot rule out the possibility that Yanukovych is now being shown a distorted picture of reality in which the losses to his image in the West and at home are interpreted as a much lesser evil than the prospects of “a solution to the Tymoshenko problem” and even “playing high for gas.” But when these prospects lead to the isolation of the country and its government, and Russia starts to develop Ukraine’s resources and industry, it will not be Portnovs and Medvedchuks who will be blamed —  the blame will be borne by the leader of the country.

 

FIVE SIGNS OF A POLITICALLY MOTIVATED TRIAL

Notions like “political trial” and “selective justice” have become clichés used by the Ukrainian opposition and international observers to describe proceedings against the opponents of the incumbent regime in Kyiv. The latter, however, maintains that the trials are exclusively legal.

Yet the selectiveness and political bias of this justice have their own clear signs, the presence of which allows both Ukrainian society and the international community to infer about the character of Ukrainian criminal proceedings against former high-ranking officials.

One-sided approach

Opposition activists are detained and tried on indictments which often lack proper evidence. Conversely, the facts unveiling the offence of incumbent officials will be ignored by law enforcement authorities even if they are registered or disclosed by the media (purchasing goods or services at the expense of the state is just one of many examples of these).

Disparity in conditions

The accused are given extremely short notice for becoming acquainted with the case, making it unfeasible to prepare thoroughly. Their defenders are hindered in every way possible: they may not summon witnesses for the defense; courts refuse to grant well-grounded petitions, etc.

Creating an enemy image

Spokespersons and media associated with the regime create an atmosphere of hate around the accused. They incriminate the accused in offences which may be not even mentioned in their cases, circulate libellous statements, use black PR technologies, etc.

Dubious reasons

The actions which the victims of political trials are incriminated in are either hardly compatible with the articles of the Criminal Code, or they require additional interpretation by the Constitutional Court (for example, to determine whether an official had the right to act a certain way), or it is impossible to identify self-profit or criminal intent in them whatsoever.

Demonstrative intimidation or humiliation of opponents

The accused are kept in custody even despite their obvious cooperation with the investigation.

The regime itself makes trials of the opposition politically motivated and selective. It is anxious to pass a prepared verdict and does not care about keeping appearances.

AN EXPERT’S OPINION

Experts of the Danish Helsinki Committee for Human Rights believe that criminal cases against former government officials are politically biased. The Committee emphasizes that most of the charges are of a character which would never be considered “a criminal offence in countries with a different legal tradition and would not be dealt with in the Criminal Justice System.”

The Committee’s preliminary report, based on the results of investigation and legal proceedings against the former Prime Minister Yulia Tymoshenko, former acting Minister of Defense Valerii Ivashchenko, former Minister of Inferiors Yurii Lutsenko, and former First Deputy Minister of Justice Yevhen Korniichuk.

POLITICAL DEFENDANTS

The farther a nation is from democratic standards, the more common the practice of political trials and the conviction of those in the opposition

International experience shows that criminal cases against top politicians are often a way of getting rid of a rival rather than the triumph of justice. Courts study politicians’ actions in democracies, too – usually on the grounds of top corruption or “improper conduct” such as sex scandals and so on. Examples can be seen in Silvio Berlusconi, Jacques Chirac, Helmut Kohl, Israel’s ex-President Moshe Katsav, ex-Managing Director of IMF Dominique Strauss-Kahn, Bill Clinton, and so on.

However, the prospects for proving a person’s guilt in such cases are quite unrealistic — in democratic courts oriented at the establishing of truth rather than at the legitimization of the predetermined punishment, these cases never get to the point of passing a verdict, let alone to imprisonment. The defendants are virtually punished by smeared reputations and lost confidence, crippling their further political careers.

Conversely, in countries far from democratic principles, the leaders of opposition usually remain behind bars even if the indictment is dubious, and their release is demanded by the general public and the international community.

Andrei Sannikau, Belarusian opposition activist, presidential candidate in the 2010 election

Sannikau was detained last December after an opposition rally against the rigging of the presidential election was dispersed. The politician’s arrest caused a storm of protests in the country, as well as negative response from the international community. Yet the Belarusian leadership remained unaffected by public opinion. In May 2011, Sannikau was found guilty of staging mass riots and convicted to five years of imprisonment in a high-security facility. Amnesty International listed this opposition activist as a prisoner of conscience.

Uladzimir Niakliaieu, Belarusian public activist, poet, presidential candidate in the 2010 election

On polling day, soon before the opposition rally, Niakliaieu was badly beaten by the police and taken to the hospital. On the same day, still in poor condition, he was removed from the hospital by the police and placed in a KGB pre-trial prison. A few days later he was charged with mass rioting, which entails five to 15 years’ imprisonment.

The oppositionist’s arrest roused a storm of protests from the international community. In March 2011, the court amended the indictment to “organization of actions that grossly violate the public order, or participation in them” (punished by imprisonment up to three years). The new ruling aroused a new wave of international protests: 100 cultural activists from various countries signed a letter of solidarity with Niakliaieu and demanded his release. In several days, the court passed the sentence, two years of imprisonment with two years’ determent. Under pressure from the EU and the USA, he was eventually released, and the ruling was appealed at the Minsk municipal court of law.

Ibrahim Sharif Al-Sayed, leader of the Bahraini opposition

Ibrahim Sharif was arrested in March, 2011, for participating in anti-government protests demanding an expansion of political liberties in the country. He was sentenced to five years imprisonment for “participation in a conspiracy attempting a violent change of the order of the state.” Amnesty International listed Ibrahim Sharif Al-Sayed as a prisoner of conscience.

Riad Seif, leader of the Syrian opposition

Seif was arrested in the heat of anti-governmental protests. On August 2, he was detained at Damascus airport. He had been planning to fly to Germany for cancer treatment. After his arrest, protests against President Bashar Assad’s regime did not cease. The European Union imposed sanctions on 14 members of the Syrian government, who were accused of the crackdown on anti-government protests. Their foreign bank accounts are frozen, and they were banned from entering EU countries. However, so far Syria’s regime has not reacted to this domestic and international pressure.

Benazir Bhutto, ex-Prime Minister of Pakistan

After the Pakistan Peoples Party lost the parliamentary election in 1997, its leader Benazir Bhutto fell into disgrace. In 1998, the ex-prime minister and her husband were charged with corruption and assassination. Consequently, Bhutto was forced to leave Pakistan and spend years in exile. Her husband had to serve more than five years in prison on a bribery charge.

After the rise of Pervez Musharraf to power in 2001, Bhutto was sentenced to three years’ imprisonment. This was the reason for her disqualification in the parliamentary election.

In 2007, Musharraf granted amnesty to the ex-Prime Minister Bhutto, and she returned to Pakistan, only to be put under house arrest. The home arrest was imposed on the grounds of her criticism of the president for violating democratic principles, and her demanding his resignation. However, Bhutto was soon assassinated. Her death sped up the victory of the opposition, and her husband was elected president. Musharraf was charged with involvement in the assassination of the former prime minister.


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