TYMOSHENKO TRIAL

There has been a flood of commentary in the world media concerning the trial of the Ukrainian politician and former Prime Minister Yulia Tymoshenko. Though I have not followed the trial closely I do want to make a few points:

1. There seems to be a widespread assumption that Tymoshenko has been tried and convicted on the basis of some archaic Soviet law unknown to western jurisprudence.  Tymoshenko was in fact convicted on a charge of abuse of power.  Such a concept most certainly does exist in English law where it is called misfeasance of public office.  So far as I know it is a civil wrong rather than a criminal offence though there is no reason why it could not be a criminal offence subject to criminal sanctions in other jurisdictions.  English law is in fact quite capable of treating some political decisions as criminal acts.  One example is the case of Shirley Porter who abused her position as Mayor of Westminster in order to manipulate council house sales. 

2. The case against Tymoshenko was initiated in September 2009 by the previous Ukrainian President Viktor Yushchenko who was also the star prosecution witness at Tymoshenko’s trial.  The international media blames the Ukraine’s current President Viktor Yanukovitch for the trial.  In reality Yanukovitch inherited the case from his predecessor.  Yanukovitch could presumably have acted to bring the case to a stop but this would have amounted to precisely the sort of political interference in the judicial process that the west criticises.

3. The case against Tymoshenko is that she disregarded Yushchenko’s instructions when she made a gas agreement with Russia.  As Prime Minister Tymoshenko was Yushchenko’s subordinate and legally bound to carry out his instructions.  The charge against her is that she is ignored the instructions she was given and by making decisions independently of Yushchenko acted beyond her remit and broke the law.

4. The Ukrainian authorities have also brought various other charges against Tymoshenko.  One is that in breach of the Ukraine’s international agreements she misappropriated funds provided by international agencies and foreign governments to enable the Ukraine to reduce its carbon emissions in accordance with its obligations under the Kyoto Protocol.  Tymoshenko has admitted this charge.  The money was used to pay pensions.  Tymoshenko claims this was done to protect pensioners from the impact of the economic crisis.  Her critics allege that it was done to secure for Tymoshenko the pensioners’ vote in the 2010 Presidential election.

5. Neither of these charges is outlandish.  In Britain if a subordinate minister disregards the instructions of the British Prime Minister and of the cabinet in negotiations with a foreign power and commits Britain to a treaty the minister has no power to agree such a minister is liable to severe sanctions and very possibly legal charges. In practice the professional diplomats and civil servants who always accompany British ministers to meetings with representatives of foreign powers would act to prevent such a thing from happening. Similarly if the British government uses money parliament in the budget has assigned for one purpose in order to carry out some entirely different purpose then the government is acting illegally and the ministers responsible may face charges of misappropriating funds and of stealing money.  Again in practice it is difficult to believe that the civil service would allow such a thing to happen.  However in 1986 officials of the US government who were found to have misappropriated funds obtained from illegal arms sales to Iran, which they then used to fund an undeclared war against Nicaragua, were charged and convicted of a variety of offences though in the event all were eventually pardoned.

6. I gather that the Ukrainian authorities are preparing to bring still more charges against Tymoshenko in connection with some of her business activities in the 1990s.  On this occasion she is apparently being accused of having stolen or misappropriated funds amounting to more than $400 million. 

7. In all the commentary concerning Tymoshenko’s trial it has been forgotten (or suppressed) that at the time of the Orange Revolution in 2004 Tymoshenko was already subject to criminal charges and that criminal proceedings against her were already pending in the Ukraine and Russia.  Indeed Tymoshenko could not travel to Russia at the time because she was subject to an outstanding arrest warrant.  In the event these charges were abandoned after the Orange Revolution succeeded.  As I remember some more cynical Russian commentators suggested at the time that the reason for Tymoshenko’s support for the Orange Revolution was precisely to get the charges against her dropped.

I have made these points, which no western newspaper or media agency has made, in an attempt to set the record straight.  There is nonetheless something extraordinary about Tymoshenko’s case.  Though her conduct when she was the Ukraine’s Prime Minister was hardly impeccable given the situation in the Ukraine at the time it is actually difficult to fault Tymoshenko for the actions she took and for which she has just been convicted.  The instructions Yushchenko gave her for the gas negotiations in Moscow were impossible and if followed would have prolonged the “gas war” that was at that time underway between Russia and the Ukraine, which had left the Ukraine and much of eastern Europe without gas.  Whether strictly legal or not it was an act of statesmanship on Tymoshenko’s part to disregard these instructions.  As for the misappropriation of the funds however cynical one may be about Tymoshenko’s motives given the disastrous economic situation in the Ukraine at the time use of the funds to pay pensions will have actually saved lives.

Western outrage at the treatment meted out to Tymoshenko would however be a great deal more convincing if it was consistent with western conduct towards the Ukraine when Tymoshenko and her erstwhile partner Viktor Yushchenko were in power.  It is particularly instructive to compare the western response to Tymoshenko’s trial with the way the west responded to the political crisis that struck the Ukraine in 2007 in which Tymoshenko played a major part.

The year 2007 began in the Ukraine with a decision by Viktor Yushchenko, who was then the Ukraine’s President, to order the dissolution of the Ukrainian Parliament.  The reason Yushchenko made this decision was because the majority in the Parliament supported his political rival Viktor Yanukovitch who was at this time the Prime Minister and the head of the Ukraine’s government.  Yushchenko wanted to dissolve the Parliament and force a new election, which he expected would be won by the coalition of Orange parties that supported him.  Tymoshenko, who was the leader of the biggest of these Orange parties and who expected to be made Prime Minister in the event that a new Orange government was formed, enthusiastically supported Yushchenko’s actions and his dissolution order.

Yushchenko’s dissolution order was however unconstitutional since the Ukrainian constitution gives the President the power to order the dissolution of parliament only where there is political deadlock with no party or coalition of parties having a majority and being able to form a government.  That was not the case when Yushchenko made his dissolution order.  Not only did the government have a clear majority in the parliament but the government was stable and appeared to be successfully performing its work.

Yanukovitch and his allies therefore challenged Yushchenko’s dissolution order by applying to the Ukraine’s Constitutional Court for its annulment. Yushchenko’s response when it became clear that the Constitutional Court was about to rule against him was to seek to dismiss its judges replacing them with his own placemen.  When this failed Yushchenko had the Constitutional Court’s surrounded by his Presidential Guard.  When this provoked protests Yushchenko moved troops to the capital and threatened to declare martial law.  In all these actions and during the entire crisis he had Tymoshenko’s enthusiastic support.   

That these actions of Yushchenko and Tymoshenko in 2007 amounted to a far grosser infringement of the rule of law than anything that has taken place during Tymoshenko’s trial hardly needs saying.  Tymoshenko has been convicted of real offences following a trial at which she was able to put her case.  In 2007 Yushchenko with Tymoshenko’s connivance infringed the constitution, interfered with a court process to the extent of trying to dismiss and intimidate judges who were about to rule against him and brought troops into his own capital in what amounted to a coup d’etat.

The west’s response was however very different in 2007 to what it is today.  The western media ignored the crisis.  Appeals by Yanukovitch and his supporters for action by the European Union and the Parliamentary Assembly of the Council of Europe met no response.  The US ambassador publicly expressed his support for Yushchenko and the ambassadors of the NATO powers collectively issued a statement supporting Yushchenko’s demand for new elections.  Only when Yushchenko moved troops to the capital did the western media briefly take notice.  As soon as the crisis ended even this brief media interest ceased and the whole episode has now vanished into a memory hole. 

The sequel to these events is that as it became clear that Yushchenko and Tymoshenko had the support of the western powers Yanukovitch backed down,  the parliament was dissolved as Yushchenko and Tymoshenko wanted and new elections were called.  To their joint surprise and that of their western backers and in spite of the $250 million that was allegedly spent by them during the election campaign the Orange parties  nonetheless failed to win a clear majority.  The result led to recriminations between Yushchenko and Tymoshenko and a total falling out between the them, which eventually brought Yanukovitch back to power.

Independent (ie non western) reports of the popular response in the Ukraine to Tymoshenko’s trial suggest widespread indifference to her fate.  Her supporters have failed to mobilise the large demonstrations in support of her that some had expected.  There is also apparently a great deal of cynicism and some resentment in the Ukraine at the west’s criticisms.  This post may show some of the reasons why.

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