10.23.12

Is Julia Tymoshenko Europe’s Aung San Suu Kyi?

As Ukraine heads to the polls this weekend, former prime minister Julia Tymoshenko languishes in prison at the mercy of her political enemies—all for averting a humanitarian crisis. Geoffrey Robertson on why the U.S. and Europe should call for justice.

It’s election time in Ukraine, but the heroine of its 2004 “Orange Revolution” is not standing. Julia Tymoshenko languishes in a prison hospital, her privacy grotesquely invaded (almost every move she makes is videotaped). She has been jailed for seven years on a trumped-up charge by the Stalinists whose rigged election her revolution overthrew, whilst Europe (for all its claims to protect human rights) still pretends that Ukraine is a democracy. At the United Nations tomorrow, when Ukraine’s human-rights record is reviewed, the U.S., Canada, and Australia will have the opportunity to condemn this hypocrisy: Julia Tymoshenko is Europe’s Aung San Suu Kyi.

Incredibly, she has been jailed for an action, as prime minister, which led to the saving of hundreds and perhaps thousands of lives in central and western Europe in the freezing winter of early January 2009. That was when Vladimir Putin, like a brutal businessman, ordered Gazprom to stop the gas supplies to these countries, which transited through Ukraine. His price for turning on the gas taps was a renegotiation of the transit and supply contracts which had for years been favorable to Ukraine, stemming from the days before the Orange Revolution when it was a close ally. As the days passed, and people began to die of hypothermia in the Balkans, German Chancellor Angela Merkel and European Union leader José Barroso begged and badgered Prime Minister Tymoshenko to renegotiate with Putin (who would not talk to Ukraine’s president) and resolve the crisis. She flew to Moscow on the 18th of January and reached an agreement which she signed the following day, the 19th. Her cabinet ratified her actions when she returned on the 21st. The next day Putin turned the taps back on, and the humanitarian crisis was averted.

In Ukraine, Tymoshenko received some kudos for resolving the crisis, but her political enemies denounced her for making a “bad deal.” Putin had, in effect, ended Ukraine’s most-favored-nation status and made it pay market price for its gas. Tymoshenko had played what cards she had, and deserves credit for insisting on the removal from the new contracts of corrupt Russian intermediaries. The suggestion by her critics that she should have held out until the spring for better terms was questionable in terms of Ukraine’s own gas reserves and would have caused a humanitarian disaster in Europe. Tymoshenko was entirely transparent about the deal, and its pros and cons were canvassed a few months later in the presidential election, in which she was very narrowly beaten by Viktor Yanukovich, the Stalinist ex-criminal whose rigged election victory in 2004 her Orange Revolution had overthrown.

Now it was time for revenge--easily arranged through the court system Ukraine inherited from the Soviet era, where the prosecution controls the courts and judges have no independence. Yanukovich appointed a crony, Viktor Pshonka, as prosecutor general, who subsequently announced that he considered himself “part of the team of the president” and was ready to fulfill his orders. His deputy, Renat Kuzmin, began an investigation of Tymoshenko, possibly abusing his prosecutorial powers by ordering her not to leave Kiev and to undergo interrogation on no less than 42 occasions—a deliberate obstruction of her ability to function as opposition leader. Then came an indictment and trial over “the gas case,” which ended in October 2011 with a sentence of seven years’ imprisonment, loss of civil and political rights for a further three years, and an order to pay an incredible $186 million in damages. All for the actions she took as prime minister to resolve the gas crisis, which were alleged to be the offense of “abuse of office.”

In no other democratic country in the world would these actions be regarded as a crime. The transcript of the judgment of her trial judge and Court of Final Appeal (on August 29, 2012) is now available in English, and it is plain that no suggestion was ever made that she had acted for personal gain, or in any sinister or underhanded way, or that there was any trace of fraud or dishonesty in her conduct. She was jailed not for committing a felony, but for making a deal that her political enemies thought was bad for the country. Any suggestion that her trial was other than a process to eliminate a political enemy from this Sunday’s Ukrainian election is refuted by the judgment itself. Here is the crucial paragraph on her guilt, repeated verbatim in the judgment:

“Being aware of unsoundness and groundlessness of the requirements of the Russian side during negotiations between her and the top officials of the Russian government, on the higher cost of the natural gas for Ukraine with the transit rate unchanged; wishing to create for herself a positive image of an efficient leader of the state who managed to settle the “gas crisis” in relations with the Russian Federation on the eve of presidential election in Ukraine, she decided to agree with the abovementioned unfavorable terms for Ukraine and by all means, including through abuse of power ensure signing of purchase contract between “Naftogaz of Ukraine” and “Gazprom,” as well as contract of transit of the natural gas through the territory of Ukraine for the period of 2009–2016, having an irresponsible attribute toward the consequences of her actions and causing thereby a material damage to the state.”

Note that the judge begins with the assumption that the Russian bargaining position was “unsound” and “groundless”—it was, in fact, soundly grounded on the claim that Ukraine should pay market prices. As for Tymoshenko’s attributed wish “to create for herself a positive image of an efficient leader,” this is what motivates democratic politicians throughout the world. The judge and the prosecutors were simply incapable of understanding Winston Churchill’s point that “democracy is the worst system of government—except for all the others”.

Section 365 of the Ukrainian criminal code, which creates this vague offense of “abuse of official powers,” was exploited in Tymoshenko’s case to punish the entirely legitimate, if politically controversial, actions of a prime minister properly and responsibly discharging her duties in a democracy. There was no one else who could have done so in the growing gas crisis of January 2009—Putin would not negotiate with anyone else--and the EU was reliant on her to prevent a humanitarian disaster. Whether the deal she did was the best that Ukraine could have done may be open to question but it is a question that should be answered by the electorate and not the criminal courts. It was a deal approved by her cabinet on January 21. There is no basis for holding her guilty of a crime, let alone for subjecting her to a lengthy prison sentence and an order to pay a massive sum viciously calculated to drive her forever from seeking public office.

Europe has been pathetic in its defense of Tymoshenko.

How could this grave wrong have been inflicted on Tymoshenko? The answer lies in the fact that Ukraine has not reformed its Stalinist system of criminal justice, where an all-powerful prosecutor, appointed by the president, controls the courts. The lack of independence of Ukraine’s judges has been a constant and unanimous refrain of human-rights experts and can be proved by one single statistic: 99.8 percent of those who are prosecuted are convicted. In other words only .2 percent of defendants arraigned by the apparatus of the state prosecutor escape unscathed—the prosecutor is almost never wrong.

Here are some of the reasons that have been identified by other experts as resulting in all-powerful prosecutors and craven judges:

The prosecutor-general is appointed by the president, and serves his regime.

The High Judicial Council, which appoints and disqualifies judges, has a majorty of members from, or appointed by, the prosecutor-general, the president, and his party in Parliament.

Judges are provisionally appointed for five years. Only if their rulings do not discomfort the regime during that period are their appointments confirmed.  Political trials are generally conducted by these “P-plate judges.”

Moreover, all judges are subject to discipline at the discretion of the prosecution—there is no independent disciplinary body. More than 600 cases have been brought against judges by the prosecution in the past two years—some have been accused of being “untrue to their judicial oath” by ruling in favor of defendants, e.g. on bail applications which the prosecution opposes. Any judge who rules against a prosecutor is liable to be prosecuted.

These factors were present to produce what could have been a nonindependent and biased judge in Ms. Tymoshenko’s case. This, it must be remembered, was the trial of a former prime minister for actions while in office—perhaps the most important trial in Ukraine’s history. In any other democracy, the chief justice or a very senior judge would have been deputed to try it. Instead, Judge Kirayev, a “P-plate judge” with only two years’ experience, was plucked from a small-town courtroom in April 2011 and mysteriously made the judge for the Tymoshenko trial. Having no tenure, and his future career being at the sufferance of her political enemies, objectively he lacked independence.

He soon showed his bias. In August 2011, three months before he convicted her, he ordered that she be detained in prison. This was not done for any legitimate reason, it seems—she had turned up every day on time (on one day she was briefly delayed)--but was an act of petty revenge, justified, apparently, because she had refused to call him “Your Honour” and had at one point thrown the indictment on the floor. These are not acts that should be punished by deprivation of liberty, especially in the middle of a difficult trial and in relation to a person with no previous convictions, who had served the state in high office. It was a brutal and unnecessary decision.

Kirayev showed his bias in other respects. At the outset he refused Tymoshenko’s request for jury trial (which is available under Ukrainian criminal law). Her sentence was manifestly excessive (the order to pay an extortionate $186 million alone proves his bias).  The appeal judges were subject to the same form of pressure.  What was particularly obnoxious is the way in which the President and his two most senior prosecutors went on television, both before and after the verdict, to proclaim her guilt.  Yanukovych announced that she had to “prove her innocence” and deputy prosecutor Kuzmin, as soon as she was arrested in April 2011, went on television to denounce her gas contracts as “a grave violation of Ukrainian law.” He has repeatedly accused her of committing a murder, despite the fact that the crime in question took place in 1996, a number of people were convicted and her name was never mentioned in the investigation or trial. Somewhat hysterically, he recently proclaimed himself a Christian and emailed all members of Congress offering to come to Washington and address them about her guilt.

The irresponsible behavior of these legal lickspittles is unsurprising, but they have managed to disable the Orange opposition in time for Sunday’s national election, which cannot therefore be regarded as fair. They have not only silenced Tymoshenko, but have prosecuted with similar brutality 12 of her senior officials: four ministers, five deputy ministers, and the heads of three national agencies, mainly on charges that have put them in prison but do not require proof of dishonesty or corruption.

Europe has been pathetic in its defence of Tymoshenko: much as it lays down human-rights standards for everyone else, and relishes every opportunity to condemn the U.S. for Guantanamo and rendition, it has done no more than pass mildly critical resolutions about her sufferings. The Council of Europe, disgracefully, still regards Ukraine as a fully democratic member, and has not suspended it for persecuting its opposition. The U.S. will have two minutes at the U.N. to review Ukraine’s abuses: it should spare a few moments to mention Europe’s human-rights hypocrisy over its own Aung San Suu Kyi—a woman jailed for the “crime” of averting a humanitarian disaster.

Geoffrey Robertson’s new book Mullahs Without Mercy--Human Rights, Iran and Nuclear Weapons is published by Biteback next week.