ISSUE 3-2011
Mykola Riabchuk Виктор Замятин Богдан Олексюк
Томаш Гланц Владимир Воронов Ондржей Соукуп Петр Вагнер
Тигран Закарян
Ростислав Павленко
Pavel Vitek

Disclaimer: The views and opinions expressed in the articles and/or discussions are those of the respective authors and do not necessarily reflect the official views or positions of the publisher.

ISSUE 3, 2011

The former Ukrainian Prime Minister Yulia Tymoshenko was found guilty of abuse of office and sentenced to seven years in jail. The most common reaction on this verdict pointed out a selective use of justice. Ukraine has faced many problems caused by the controversial verdict. The reaction on Tymoshenko sentence was more than predictable nevertheless the verdict was pronounced.

Where should we look for reasons for such decision? Is there only the effort to eliminate the strongest opponent or can we find other motives? They are questions for José Manuel Pinto Teixeira, Ambassador, Head of European Commission Delegation in Ukraine, Peter B. Doran, Senior Policy Analyst, Center for European Policy Analysis Washington, D.C., the USA, Grzegorz Gromadzki, Independent expert, Poland, Viktor Shlinchak, Chair of the Supervisory Board, Institute of World Policy in Kyiv, Ukraine.
Yulia Tymoshenko is a very complicated personality and her performance as Prime Minister of Ukraine is also very controversial. We are not far from the truth when we say that she and former President Viktor Yushchenko are responsible for the failure of all hopes connected with the Orange Revolution in 2004. She made a lot of mistakes and strange decisions - the gas contract with Russia included - but her sentence on 11 November 2011 is an evident selective application of justice. There was no doubt that by sentencing Tymoshenko, President Yanukovych would face problems with the European Union. What do you think are the reasons which led Yanukovych to put Tymoshenko on trial?

José Manuel Pinto Teixeira:
There is a perception created and often exploited in Ukrainian media that the EU is actually defending Tymoshenko, that the EU is choosing Tymoshenko instead of choosing Ukraine. This is of course not true. The EU objects such processes and the ways that they are conducted not only against Tymoshenko, but  also against other prominent leaders.

We also know that an average Ukrainian citizen is subjected to the same lack of rule of law.

We also often hear that a good part of the Ukrainian population actually supports the process against Tymoshenko. Maybe is true because we know that many people don’t like Ms Tymoshenko like others don’t like Yanukovych or others politicians.

But what I ask citizens whether they believe that the process against her was fair and that the judicial system in Ukraine is independent, the general  reply is "no".

Peter B. Doran:
There are multiple ways to view Ukraine’s political evolution since the 2004 Orange Revolution. One danger in examining this issue strictly through the lens of political personalities is that it can over- emphasize the failures or motivations of individuals rather than the weaknesses and shortcomings of political processes or institutions. Recognizing this risk, one enduring view of Yulia Tymoshenko and Viktor Yushchenko mirrors the verdict that Livy famously rendered upon Hannibal:  All three knew how to gain victory, but neither knew how to use it.

Since his victory over Tymoshenko in 2010, President Viktor Yanukovych has worked to avoid that criticism by swinging to the opposite extreme. In this way, Yanukovych has demonstrated a strong preference for political self-fortification and the consolidation of national governing authority. This includes last year’s rollback of Orange Revolution-era changes to the constitution and a reversion to the previous strong presidential system. As a result, Yanukovych has created a compliant parliament while strengthening his personal control over key governing institutions such as the state Security Service (SBU), the Prosecutor General’s Office and the Cabinet.

Viewed in isolation, the reordering of presidential authority in Ukraine is arguably net-neutral for the effectiveness of state governance. Yet the government’s revisions to the constitution were shortly followed by the proliferation of apparently politically motivated criminal charges and investigations against former government officials like Tymoshenko, former Interior Minister Yuriy Lutsenko and former Deputy Justice Minister Yevhen Korniychuk. Add to this trend the re-introduction of the SBU into local and national politics and the foundation of Ukraine’s governing structures looks to become even more entangled in the thicket of personal agendas.

It was for this reason that the trial—and subsequent conviction—of Tymoshenko represented a pivot point for the Yanukovych administration. By shackling the former prime minister with a seven-year prison sentence, $190 million in fines and a three-year ban from national politics for “abuse of power,” the court system has prevented one of Ukraine’s leading opposition figures from legitimately challenging Yanukovych and his Party of Regions at the ballot box. If left unchecked, sustained pressure on the rule of law and democratic governance in Ukraine could diminish the vitality of its political system and—ultimately—erode one essential prerequisite for sustainable democracy: genuine voter choice. Importantly, this outcome is not yet a foregone conclusion. Instead, these trend lines underscore what’s at stake in Ukraine and amplify the need the need for proactive, focused Western engagement with Kyiv.

Grzegorz Gromadzki:
I agree that Yulia Tymoshenko is a very complicated personality and sometimes she made strange, populist decisions. I don't know whether gas contract with Russia was good or bad. But I know that in the democratic country a politician cannot be sentenced and jailed for a political decision. He or she should be judged by voters during next parliamentary/presidential elections not by the court! It is the main reason why the EU cannot accept the Tymoshenko's trial. I think that Ukrainian authorities, president Yanukovych including, haven't  understood this at all and it is enormous problem not only for them but for us as well because it shows that the EU and current Ukrainian authorities speak different languages!
The main goal of President Yanukovych and his political friends concerns destroying the opposition, especially Yulia Tymoshenko, regarded by authorities as the main threat to their rule.

Superior objective of the current government is maintaining power regardless of the method required and political cost involved. This goal becomes the primary threat to Ukraine's European ambitions. President Yanukovych and his government failed to accept the fundamental principle of democracy; the fact that following elections some times you hold the power, other times you are the opposition. They believe that power once gained should never be given up. The Orange Revolution and the loss of power, which in 2004 was within their grasp, are still traumatic experiences for them. The fear of next elections - parliamentary elections in Ukraine are planned for 2012 - remains very strong, especially considering weak poll results for the Party of Regions. Hence the ruthless treatment of the opposition. The motive of personal vendetta, especially against Yulia Tymoshenko and her closest associates is of no small importance.

Current problems with democracy in Ukraine are visible not only on the central level, but also, to similar extent, at regional and local level. Local election in 2010 was the first warning sign. The Party of Regions tries to claim power at every possible level. People from Donbas are taking increasing number of positions in other Ukrainian regions. Everyone who does not conform to new authorities is being moved aside, according to the principle that “who is not with us is against us”. This is why instead of growing problems with democracy in Ukraine, we can already speak about increasing authoritarian tendencies.
Viktor Shlinchak:
Существует, как минимум, несколько причин, почему отношения между действующим президентом Украины и предыдущим премьер-министром зашли в достаточно сложную фазу. Первая причина (и, наверное, самая весомая) – глубоко личная. Юлия Тимошенко - единственный политик, который позволял себе по отношению к Виктору Януковичу откровенно оскорбительные высказывания о его «темном прошлом». Никакой другой политик такой лексикой не пользовался. Личная обида плюс показательное непризнание победы Януковича на президентских выборах, очевидно, и стало первопричиной показательного суда над Тимошенко.
Вторая причина – чисто технологическая. Отправив Тимошенко в СИЗО, суд послал «положительный» сигнал сторонникам Януковича, ждавшим сатисфакции и наказания оранжевой команды. Ведь очевидно, что большая часть этих сторонников (электорат Януковича) достаточно негативно относилась к Тимошенко как одному из главных героев Оранжевой революции. «Технологическое» решение подкрепляла и социология, согласно которой уровень недоверия к Тимошенко по стране является едва не самым высоким – около 70%.
Третья причина, конечно же, политическая. Без Тимошенко в ее партии и фракции в парламенте начались необратимые деградационные процессы. Таким образом налицо явное ослабление политического противника накануне избирательной парламентской кампании 2012 года. По сути, возможное неучастие Тимошенко в этой кампании выводит ее из игры и в 2015 году (год следующих выборов президента Украины).
Сегодня команда президента Януковича пытается вывести образ Тимошенко на «следующий уровень».  Предпринимается попытка представить ЮВТ в качестве «делка», промышляющего в конце 90-х во времена премьерства одиозного Павла Лазаренко. Таким образом разрушается миф о «принцессе Оранжевого Майдана» и «современной Жанне Д’Арк». «Перевоплощение» ее в «газового олигарха», не платившего налоги и занимавшегося сомнительными экономическими операциями, подает Тимошенко в невыгодном свете не только перед электоратом Украины, но и перед западным сообществом, выступившим с критикой показательного судебного процесса над бывшим премьер-министром.          
Former Prime Minister Yulia Tymoshenko was sentenced and the EU reacted as one could expect. President Yanukovych´s visit to Brussels was delayed but what will be further? How should the European Union develop its relationship with Ukraine? Will it stay in the shadow of the Tymoshenko trial or will business as usual soon become the norm?
José Manuel Pinto Teixeira:
Let me quote here what the High Representative Ashton said on this issue in her address to the European Parliament on 12 October 2011. This position is still valid even today:

The offer of concluding an Association Agreement with Ukraine should remain on the table. Yulia Tymoshenko herself asked us to carry on with association agreement work. Both Ukrainian and EU citizens stand to benefit, and it offers the Ukrainian government the roadmap for transformation that the country needs.

I believe we should not walk away from the technical negotiations, but continue them with the aim of having before us on the table, a document which makes it clear to both sides what is possible – and also what could be lost. Ukrainian voters will have the options clearly before them.

But we can only sign such an agreement if we are convinced that the Ukrainian leadership believes in the values on which it is based, and is committed to upholding them.

Peter B. Doran:
While Tymoshenko’s imprisonment and the overall trend toward democratic backsliding are unnerving, it is still far too premature to declare that Ukraine’s decades-long process of Euro-Atlantic integration has reached a terminal conclusion. Indeed, the European Union (EU) still has a number of effective mechanisms to help correct unwanted drift in the country’s political culture. The most immediate of these is Ukraine’s pending EU Association Agreement. Perhaps recognizing the need to finalize this deal, President Yanukovych has recently attempted to publically de-couple Tymoshenko’s conviction from ongoing association negotiations with the EU. In doing so, he has reiterated that deeper integration with Europe—as well as eventual EU membership—are still “very important to us.” This is an opening that should not be neglected in Brussels. Yet the way in which the EU responds must be developed correctly.
If European officials accept Yanukovych at his word, and agree to the underlying logic of de-coupling, they risk striking a remarkably discordant tone in their values-based policy approach to the East. Conversely, if Brussels wishes to fully leverage the prospect of an Association Agreement in Kyiv, it should impose a temporary halt in negotiations and signal that further progress must be contingent on Tymoshenko’s release, as well as a sustained commitment by the government to transparency and democratic best practices. Significantly, any potential halt in negotiations over the Association Agreement should be balanced by a concurrent strategy of emboldened soft-power engagement with Ukraine. This includes the “more-for-more” approach currently articulated under the EU’s Eastern Partnership Initiative as well as related efforts on the part of individual Member States to seed pan-European norms and values among Europe’s Eastern neighbors.
One benefit of this dual strategy toward Ukraine is that it makes the most of the domestic political environment. While Ukrainian voters may hold different views regarding the Orange Revolution and its legacy, many still place a high premium on the country’s national independence vis-à-vis Russia and its status within a European geopolitical order. If Yanukovych is going to succeed in the eyes of voters, he must engender domestic credibility on these fronts. In practical terms, this means delivering on perceived public goods such as a Deep and Comprehensive Free Trade Agreement with the EU and visa liberalization – all benefits that can only be achieved through closer association and integration with Europe. By standing firm on its values, the EU would not dislodge the Yanukovych administration from a European orbit—however elliptical—but help to complete the decade’s long vision of “Europe whole, free and at peace.”
Grzegorz Gromadzki:
In recent months the EU have been visibly trying to close negotiations and sign the Association Agreement as quickly as possible. This approach stems from the logic of the actions of the European Commission, which having been given the task of negotiating the Agreement, wanted to bring the issue to a swift conclusion. Efforts of the Commission were supported by the permanent President of the European Council Herman Van Rompuy as well as many European politicians. All of them, however, agreed on setting one condition: Ukraine must remain democratic.
What should be EU policy towards Ukraine? The answer to this question is a very difficult one. Unfortunately, current situation in Ukraine is beginning to resemble relations of President Kuchma with the EU and the West as a whole, at the end of his second term, when he was persona non grata in many Western countries. It is a depressing forecast for EU-Ukraine relations. Certainly, everything must be done to avoid such scenario.
Whether to sign the Association Agreement or not constitutes at the moment a crucial dilemma for the EU. Those in favour of the signature believe, that unless we sign it, we might lose Ukraine for a long time or for good, should Kyiv choose integration with Moscow or the 'Third Way'. According to them, signing of the Agreement will help to “anchor” Ukraine on its path to European integration and will bring profits in future, when the situation improves, because there is much more to Ukraine than Yanukovych and his government. The Association Agreement would block Ukraine's prospect of joining the Customs Union of Russia, Belarus and Kazakhstan.
Those against the association in the current circumstances believe, that a country not governed according to democratic rules, with authoritarian tendencies becoming increasingly visible, cannot, even partly, integrate with the EU. Signing of the Association Agreement in such conditions would just create fiction. Association agreements with several Arab countries ruled by authoritarian regimes can be given as examples of negative experiences to be avoided in future. Such attitude of the EU strengthens in fact undemocratic regimes, as they receive from the EU a legitimisation of sorts. The second solution – postponing the signature on the Agreement until the situation in Ukraine improves – has in the EU much more support that the first one, as evidenced by Conclusions of the European Council from 23 October 2011 concerning the EaP countries: „The pace and depth of these countries' political association and economic integration with the EU will depend on their upholding of the democratic principles and rule of law which are the basis of the Partnership.” It seems however, that it would be advisable to conclude negotiations, if possible, without the discussion on the highest political level  and to initial the document by people conducting negotiations, on the technical level, so that in future there would be no need to return to the negotiating table.
Most probably the EU-Ukraine relations face a period of suspension. Unfortunately it can last long, even several years. The next presidential election in Ukraine will be held in 2015. The question is, how long can Ukraine wait to take the strategic decision whether it wants to integrate to the EU? Will it be another 20 years?
Viktor Shlinchak:
Мой прогноз достаточно оптимистичен: в декабре Украина все же парафирует договор об Ассоциации с ЕС. Европейский Союз заинтересован объявить об окончании переговоров не меньше Украины, таким образом, поставив точку в попытках России реанимировать новую Российскую империю.

«Дело Тимошенко», конечно же, наложило свой отпечаток на переговорный процесс. Однако публичное обращение ЮВТ к руководству стран Евросоюза о том, что ЕС должен идти на Ассоциацию с Украиной вопреки решению суда, фактически снимает аргументы противников такой Ассоциации. Такой жест Тимошенко, несомненно, – политический. После парафирования Соглашения будет еще три-четыре месяца для его ратификации в странах-членах ЕС. Думаю, именно это время Тимошенко сможет использовать для давления на Януковича.

В случае же отказа Евросоюза от парафирования Соглашения, ЕС де-факто оставляет Украину в заложниках России, а также провоцирует глубокую политическую и социальную депрессию общества, в большинстве своем настроенного на сближение с Европейским Союзом.








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