Korrespondent

Ukraine: Digging in Deeper on Tymoshenko

Editor's Note: This article was originally published in Russian by the Korrespondent.

The Ukrainian government is using American lawyers to persuade the West of the legitimacy of the imprisonment of Yuliya Tymoshenko. This will turn out to be a losing game.

The Ukrainian Ministry of Justice’s release of an American law firm’s assessment of the trial of former Prime Minister Tymoshenko suggests the Ukrainian government will continue to argue to Europe and the United States that Tymoshenko is guilty and deserves to be in prison. Such a campaign will cost time, energy and money … and it almost certainly will fail. It will then be even more difficult for official Kyiv to find a face-saving way out of the hole it has dug itself into over Tymoshenko.

When one is in a hole, the first rule is to stop digging. But Kyiv instead may now be digging itself in deeper. The report by the American law firm Skadden Arps Slate Meagher & Flom, LLP, publicly released on December 13, paints an unflattering picture of the judicial process against Tymoshenko. Among other things, the firm’s lawyers express concern about Tymoshenko’s incarceration during her trial, the testimony of witnesses when she had no counsel present, and the court’s refusal to call certain defense witnesses. The Ministry of Justice nevertheless apparently welcomes the report’s conclusion that this was not, narrowly defined, a case of selective prosecution.

Tymoshenko was convicted in October 2011 on charges of abusing her office. Those charges stemmed from a contract for the purchase of gas that she concluded with Russia in January 2009.

To the extent that the contract had flaws, the West saw it as a political or commercial mistake, not a criminal matter. One could even say that Tymoshenko paid for this (and other political mistakes) in February 2010, when she lost the presidential election to Victor Yanukovych. Tymoshenko’s trial was widely viewed, both within and outside of Ukraine, as a judicial farce.

The American firm’s report has been received in the West with some skepticism, in part because it was commissioned by the Ministry of Justice and because of questions about who financed the American lawyers’ work. The U.S. Department of State’s spokesperson said: "By confining themselves to simply looking at the paper trial records and ignoring the larger political context in which the trial took place, our concern is that Skadden Arps lawyers were obviously not going to find political motivation if they weren't looking for it. The report also fails to consider the selective nature of the cases [against Tymoshenko and members of her government] …”

Even setting aside these questions, few, if any, in the West will be interested in debating the merits of the case now. They lack the knowledge of Ukrainian law. They will not have access to all the facts in the matter. And they will not hear counter-arguments by Tymoshenko’s defense. So how can they be expected to make any kind of reasonable judgment regarding the trial or the Skadden Arps report? If the Ukrainian government believes that it can now, in effect, succeed in changing the attitude toward the Tymoshenko case in Europe and in Washington, well, lots of luck with that. But that is a serious mistake.

Tymoshenko is not the saint that some of her defenders portray. But the Ukrainian government does not appear able to understand that, in the matter of the former prime minister, it lost the public relations battle long ago. Why? Because everyone saw a madcap effort by the Prosecutor General’s Office to find something—anything—as grounds on which to take Tymoshenko to court. First, there were assertions that she had abused her office by misusing funds that Ukraine received from Japan under the Kyoto Protocol. Then there were claims that she had abused her office by issuing resolutions regarding the purchase of ambulances. When these charges failed to stick, the Prosecutor General’s Office turned to charges regarding the gas contract. On this case, the Prosecutor General’s Office and Ministry of Justice have no credibility with Europe and the United States.

Kyiv will not manage to persuade the West of the legitimacy of its handling of Tymoshenko. If the Ukrainian government now pursues a campaign to try to do so, its relations with the West will remain stuck in a dead end: the European Union will not move forward with the association agreement, including the deep and comprehensive free trade arrangement; Yanukovych will find that he has even fewer meetings with senior Western leaders; and talk will grow in the U.S. Congress about possible sanctions on Ukraine.

Ultimately, official Kyiv will realize that its campaign has failed, after wasting money, energy and time. The government will then have to decide whether to seriously address the issues, such as Tymoshenko’s case, that have caused the downturn in its relations with the West over the past two years. Having dug even deeper into the hole, it will then likely be even more difficult for Kyiv to extract itself, especially without losing face.