Witnesses In the Tymoshenko Trial: Ayes, Nays and Abstentions

The Yulia Tymoshenko trial has continued for more than 30 working days now. At the 25th session of the court[*] Judge Rodion Kireev completed the hearing of witnesses. It was this stage that became, even despite a court order banning TV cameras from the courtroom, the most striking part of the trial.

The Ukrainian Week has written on numerous occasions that the Yulia Tymoshenko case is special in that, as she negotiated gas contracts with Russia in the capacity of the Prime Minister, her actions were (and remain) hard to interpret in unambiguous terms from a legal point of view. It is not clear how much sense it makes to claim that she caused damages to the state if gas prices are constantly rising anyway. (It is perhaps no coincidence that even witnesses for the prosecution tried to avoid speaking about “damages.”) The law does not give a clear answer about whether Tymoshenko had the right to issue an instruction to Naftogaz management to sign contracts without seeking the collective approval of the Cabinet of Ministers in the form of directives. Expert commentaries published widely in the press point to a legal collision which should be considered by the Constitutional Court rather than the Pechersk District Court.

This is the reason why the testimonies of some 30 witnesses, the vast majority of which spoke for the prosecution, led to different, sometimes contradictory, interpretations by the experts and the public at large. To the former, they became not so much the proof (or denial) of the ex-premier’s guilt as a kind of magnifying glass that showed the current political situation in minute detail. For the same reason, the testimonies of high-profile politicians were widely publicized, while former and current employees of various “technical” government agencies have remained nearly unnoticed.

The Ukrainian Week has decided to capture, for historical purposes, what might be called the “alignment of witnesses” in this cause célèbre. This turned out to be no easy matter. Testimonies given by the likes of Prime Minister Mykola Azarov and ex-President Viktor Yushchenko, the last witness to speak, are easy to put in the ‘political’ category. For example, Azarov was not a member of the government back then and did not say anything about the premier’s powers in court. However, in many cases relevant testimonies and political accusations were closely intertwined. For instance, Yurii Yekhanurov, who ostentatiously left the meeting of the Cabinet of Ministers on January 19, 2009, delivered a fiery speech in court, saying that Tymoshenko signed the agreements after being blackmailed by Russian President Vladimir Putin who threatened to dig up old criminal cases linked to the United Energy Systems of Ukraine, a company she ran back in the 1990s.

There were also situations of a different kind, such as one involving ex-Minister of Education Ivan Vakarchuk, a person who had nothing to do with gas supply issues. He said in court that “government directives were perhaps needed” to sign the agreements with Russia but, at the same time, denied in a peculiar way that Tymoshenko inflicted damages on the state — “she had been sworn in, after all,” he said.

What regards specifically the charge that Tymoshenko “abused power” (particularly by “falsifying” government directives) most witnesses for the prosecution were unable to give credence to the statement that her actions were illegal. Employees who worked in the previous government apparatus typically insisted that she had the right to issue instructions to the Naftogaz CEO personally. At the same time, Oleh Koval, who was responsible for document provision in the Cabinet of Ministers, said that the instruction titled “directives” and issued by Tymoshenko to Naftogaz President Oleh Dubyna in Moscow was not, strictly speaking, “a government directive” which, if it were, would suggest an act of falsification — the foundation on which the prosecution is seeking to build its case.

It is less clear how the court will interpret the testimonies of, for example, ex-Ukrtransgaz CEO Yaroslav Marchuk who said that in January 2009, Ukraine had enough gas to supply its needs for 3-4 weeks at the most. Will the court decide that this amount afforded enough time to continue negotiations with Gazprom? The reader will remember that before gas contracts were signed representatives of the then opposition, who now wield power in the country, accused Kyiv, not Moscow, of unleashing a gas war and insisted that the papers had to be signed as soon as possible.

Or take the testimony of Naftogaz Budget Department Director Yaroslav Dyvytsky who was summoned to court on the first day witnesses were heard. Formally, he said that the state did not suffer losses due to the contracts Tymoshenko signed but stressed that this was exclusively the merit of the Naftogaz management.

From among the “pro-Yushchenko” ministers in the former government, several ex-ministers – Vakarchuk, ex-Justice Minister Mykola Onishchuk, ex-Transportation Minister Yosyp Vinsky and ex-Minister for Youth and Sports Yuri Pavlenko – raised a few eyebrows when they expressed political support for Tymoshenko. Pavlenko said he believed a collective government decision was not necessary to sign the Ukraine-Russia contracts. How much this position can be attributed to sympathy for Tymoshenko (antipathy for Viktor Yanukovych) or to a desire to convey the idea “I believed that it was all legal and thus did not protest” is an open question.

The court refused to hear the absolute majority of the participants in that historical meeting of the government whom the defense wanted to call as witnesses: ex-Vice Prime Minister Hryhoriy Nemyria, ex-Vice Prime Minister Ivan Vasiunyk, ex-Acting Finance Minister Ihor Umansky, ex-Labor Minister Liudmyla Denisova, ex-Coal Mining Minister Viktor Poltavets, ex-Minister of the Cabinet Petro Krupko and, of course, ex-Interior Minister Yuriy Lutsenko, who has been in a detention facility for nine months now.

Oleksandr Turchynov, who was First Deputy Prime Minister in the Tymoshenko government, was allowed to testify. In contrast, Mykhailo Livinsky, who was the Cabinet’s Chief of Staff and now holds the same position in Tymoshenko’s Batkivshchyna party, asked to have his appearance rescheduled to give him time to prepare and find an attorney. The prosecution claimed that this was another move by Tymoshenko’s supporters to “protract the process” and Livinsky was waived off as a witness.

In the table below, witnesses in the Tymoshenko trial are divided into three categories. The first one includes those who supported her actions more or less openly. They usually confirmed that the ex-prime minister had the right to issue directives to the Naftogaz president personally. Members of the second category openly held up the case of the prosecution. They are further subdivided by a horizontal line into those who dwelled on the legal procedure of issuing government directives and those who basically claimed that the Tymoshenko-led negotiations with Russia led to a higher, rather than lower, gas price for Ukraine.

Finally, the third category contains those whose testimonies were interpreted ambiguously, particularly by the press services of Batkivshchyna and the Prosecutor General's Office which offered diametrically opposed evaluations. For example, on July 28, after the first seven witnesses were heard, Tymoshenko said she had been proved right by everyone except Kostiantyn Borodin. Two weeks later Prosecutor General Renat Kuzmin assured the public that, on the contrary, all witnesses without exception had pointed that Tymoshenko was guilty. It should be emphasized that a statement of this kind coming from a prosecutor general before the completion of a trial may be interpreted as pressure on the court.