Official Kyiv found an amusing way of celebrating the six-month anniversary of its chairmanship of the Council of Europe: putting former prime minister Yulia Tymoshenko in prison and filing criminal charges against a dozen of her former cabinet members and officials. The October 11 verdict in Tymoshenko’s trial put Ukraine’s train on the wrong track. Its final destination and the speed with which it reaches it is solely dependent on one person—President Viktor Yanukovych. He is the only person in a position to either stop this train or change its direction.
After a few months in pre-trial detention, followed by a humiliating trial, Tymoshenko received a seven-year prison sentence, a prohibition on holding any governmental position for another three years after completing her jail term, and will be forced to pay $189 million to the state for the losses caused by the 2009 Russia-Ukraine gas deal. This verdict wasn’t taken well either internationally or domestically. It has disappointed, and risks alienating, both the European Union and the United States. All major international media outlets prominently featured images of Tymoshenko, naming and shaming Ukraine and its leadership. For the first time in post-Soviet history, even Russia's reaction to events in Ukraine has converged with that of the EU.
Domestically, the verdict did not play in the authorities’ favor either. While many Ukrainians did not necessarily like Tymoshenko, they saw the trial as politically motivated. Ukrainians are unlikely to revolt because of its verdict, but the former prime minister’s trial furthered the disillusionment and fear penetrating Ukrainian society. Coupled with the difficult economic climate, this may have negative consequences for the ruling Party of Regions at the upcoming parliamentary elections in 2012.
To avoid reaching a dead end, Ukraine now has only one option—to release and rehabilitate all Ukrainians who are currently being prosecuted on political grounds, and to allow the opposition to participate in the 2012 parliamentary elections. This can be achieved by amending the criminal code in parliament. The court of appeals, where Tymoshenko's lawyers will file a motion to have her verdict overturned next week, should be allowed to operate free from any presidential pressure. The court should not delay the review of Tymoshenko’s case by availing of the official four months it has at its disposition. Other “political prisoners” should also be able to benefit from fair trials.
Kyiv, however, does not seem to have made up its mind about the train’s final destination. While the president promised to help amend the criminal code and not interfere in the work of the judiciary, Ukraine’s security services opened a new criminal case against Tymoshenko on October 13. This time her business activities in the energy sector in the 1990s are being targeted. If convicted on these charges, Tymoshenko could face a sentence of up to 12 years. This latest case smacks of yet another attempt to prove to the West that Tymoshenko is and always has been corrupt.
As of yesterday, the meetings scheduled for October 20 between President Yanukovych, European Commission president Jose Manuel Barroso, and European Council president Herman Van Rompuy have been postponed. The EU is still waiting for more than just words from Ukraine. In return, Yanukovych has rebuffed all European pressure to release and rehabilitate Tymoshenko and has even hinted at the possibility of delaying the ratification of the Association Agreement (AA). This, however, may not be Kyiv’s final word. Yanukovych and his team may still be trying to save face and bargain with the EU.
The government’s persecution of Tymoshenko is done on the premise that Western support for her is solely due to her close links with EU leaders. In Kyiv's thinking, making Tymoshenko look corrupt will cut her from her supporters. However, Yanukovych and his entourage refuse to understand one simple fact—the EU does not care about names or personal relationships when it comes to the violation of people’s rights and freedoms. Had Tymoshenko been elected president in 2010 and subsequently tried to prosecute Yanukovych and his partners, the EU would have reacted in a similar way. The EU learnt this lesson from its southern neighborhood. Therefore, Kyiv's new attempts may not, as in earlier cases, help Yanukovych to save face. After October 11, Tymoshenko will forever be seen as a symbol of political repression in Ukraine and Yanukovych will be the sole person seen as responsible.
This dead-end scenario will be the end of normal relations between Ukraine and the EU. The EU was particularly shocked by this recent development in Ukraine. In previous cases, such as the amendment of the constitution, or the questionable local election results in fall 2010, the EU’s response was more moderate. On this occasion, however, the official response was very vocal. Statements from Brussels and other capitals have been unprecedented in their strength and direct language. The message has been clear: if Ukraine wants to maintain a privileged relationship, it has to respect European values. Although its hopes for the country are rapidly diminishing, the EU will stay engaged with Ukraine for the next few months. But if a solution is not found and implemented in Kyiv, the dead end will approach fast.
This will mean an end to the possibility of deeper integration with the EU through the AA. While Brussels postponed Yanukovych's visit on October 20, it will certainly keep pressuring him. Even if the agreement is initialed by the end of the year, it is unlikely to be ratified by the national parliaments of EU member states. The eurozone crisis, upcoming elections of the European parliament in 2014, and elections in member state capitals will keep the EU busy. Better Ukrainian access to the internal market—500 million European consumers—will not materialize, and there will therefore be no inpouring of investments and new technology. The IMF is unlikely to be supportive of Ukraine either.
Should the EU not conclude an AA with Ukraine, it may have serious repercussions for the whole Eastern partnership region, particularly Georgia and Moldova. While the long-awaited talks on Deep and Comprehensive Free Trade Agreements (DCFTA) with Chisinau and Tbilisi are likely to be launched this year, the overall atmosphere around these talks will be different. It will be difficult to find reason for optimism at these talks if the first—and the most important DCFTA in the region—went down the drain after four years of negotiations. Thus the relations between Kyiv and these two countries may derail as well.
The EU is unlikely to put Ukrainian officials on a visa ban list, or impose visas on the holders of diplomatic passports. However, the number of summits, visits, and other photo opportunities will decrease dramatically. The EU is also unlikely to consider taking the Euro 2012 football championship away from Ukraine. President Yanukovych should, however, expect many EU leaders to boycott the opening ceremony in Kyiv.
While such reactions from the EU may cause initial frictions, this may ultimately be what the Ukrainian leadership was trying to achieve. A country that stays in the gray zone is very comfortable for oligarchs and bureaucrats—there is little competition to contend with and easy access to state resources, with little accountability to your own people or external actors.
President Yanukovych and his partners, however, are unlikely to enjoy these freedoms. Reaching a dead end in relations with Europe also means ending up face-to-face with Russia. It is unlikely that Ukraine will voluntarily agree to membership in a Customs Union with Moscow, Minsk, and Astana if the EU-Ukraine DCFTA is put on hold. But it will be more difficult to resist Moscow's pressure. Ukraine will have to eventually share its pipeline with Russia, and is unlikely to win the case for the revision of the 2009 gas contract. In its search for investment in key businesses, Ukraine will have to let Russian businesses step into strategic areas.
Domestically, this scenario will not have immediately negative implications for Ukraine’s leadership or the population, but problems lie ahead. Without the watchful scrutiny of the EU, the authorities are likely to pursue harsher policies on small and medium businesses, and the population. Reforms will probably continue, but, as in the past, these reforms will make life easier for big business at the expense of the general population. On October 14 Kyiv saw four different protest demonstrations. The number of them may increase. The Party of Regions’ demise may come quicker than the elections scheduled for fall 2012.
One has to remain optimistic when it comes to Ukraine. The country has a chance to avoid the dead end and still stay on the rails of democracy. President Yanukovych, who came to power through free and fair elections, has a chance to be remembered as a man of wisdom. Otherwise, he may be remembered as just another dictator in the gray zone between the EU and Russia; a chess player who mistakenly checkmated himself by engaging in a complicated game on three boards simultaneously, with no understanding of the rules and no strategy.
