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Ukrainian Legal Nihilism – OpEd

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Tomorrow the President of Ukraine Viktor Yanukovych was meant to travel to Brussels for an important meeting with the European Union. Not anymore. Instead, his hosts declined the pleasure of his company for the time being, upset over the foregone conclusion of former Prime Minister Yulia Tymoshenko’s trial.

The general impression is that Yanukovych has shot himself in the foot with the conviction of Tymoshenko on charges of “abuse of power.” The harsh seven-year prison sentence handed down this past week not only severely damages the country’s reputation, but serves also as a measurement of just how bad it can be to stoop to the level of Russian legal nihilism.

The comparison that immediately comes to mind is that of the case of Mikhail Khodorkovsky, who was also taken down by selective justice (in fact, one of his lawyers recently died from mistreatment in prison), two convictions on totally incoherent and groundless cases by the prosecution, and the wholesale theft by the government of the country’s largest company, Yukos.

In the case of Tymoshenko, many of the same methods used against Khodorkovsky were copied and poorly imitated – witnesses threatened, evidence tampering, denial of due process basic rights of defense, and even piling on a second set charges – but that’s about where the similarities end.

Khodorkovsky never held high office, Tymoshenko never ran a large petroleum corporation, and the motives that launched their tribulations share nothing in common. There is no invisible hand from inside the Kremlin guiding this process, in fact, Russia has gone on record to oppose to the conviction of Tymoshenko (or, more specifically, to oppose the reversal of gas contracts). Nevertheless, Russia may be enjoying Yanukovych’s deepening isolation: President Dmitry Medvedev held bilateral meetings this week in an apparent attempt to nudge forward the customs union, and soften the blow of Europe’s decision to dis-invite Yanukovych.

What has happened in Ukraine is the apotheosis of the six-year long counter-revolution orchestrated to rollback the color revolutions, which, for whatever credit or lack thereof you attribute to those popular uprisings, cannot be assigned solely to outside influences but also to the failure of the leadership to consolidate the institutions of democracy. The outrage and passion that brought the people into Independence Square in 2004 to denounce Yanukovych’s vote rigging turned out to be no match for the 15% contraction of the economy under Viktor Yushchenko, the overbearing cult of personality of Tymoshenko, and the inability of the new government to separate the shadowy powers in the gas trade from the political process. Let’s not forget that Yushchenko, for some reason, testified against Tymoshenko, which indicates the complex fissures of the current political spectrum.

Throughout Tymoshenko’s trial we were able to witness the perfection of dialectical legal nihilism in the post-Soviet world – as the system of stringing someone up on a fabricated case becomes perfectly transparent and minimally “normal” in terms of legal convention and the assumption of regularity, the greater the inherent contradictions are within.

When China convicts Liu Xiaobo of subversion, it only takes them two hours behind closed doors – just ten minutes to read the verdict. When the Burmese Junta declares, for some imagined reason, that Aung San Suu Kyi has violated the terms of her house arrest order, the court takes only a few minutes. When Iran convicts a dissident like Farzad Kamangar with a death sentence, there are no cameras in the courtroom. With a slightly less pliable system, Hugo Chavez of Venezuela simply doesn’t bother holding a trial, but rather just perpetually extends the pre-trial detentions of Ivan Simonovis and others without convictions.

They do not bother making it look “legal” because they are unconcerned about what the outside world may think of how they treat their citizens. They are fully aware that they are in breach of international law and a number of signed treaties. And that’s the difference with the Russia-Ukraine experience – they are willing to go through the motions, just the minimum, to imitate a legal process. Let Tymoshenko talk all she wants, even let her brandish an iPad. Let all the cameras and press in. It may be nonsense, but it is open and accessible to all.

But to pull this off, the judge and prosecutors are tasked with producing an incomprehensible deluge of arcane legal reasoning that would bore even the driest scholars. “Judge Kireyev’s speed-drone verdict in Tymoshenko case almost as catatonia-inducing as Danilkin on Khodorkovsky,” wrote the Moscow-based journalist Tom Parfitt.

The deal in question was the Tymoshenko-Putin natural gas supply agreement of 2009, which brought an end to the second gas war in as many years. When Ukraine separated from the Soviet Union, its subsidized natural gas prices and the lucrative transit and trading business to Europe created a mini-Dutch disease. Even in 2008, Ukraine was paying a very low $179.50 per 1,000 cubic meters, while at the same time Europe was paying above $400. The price disparity to trade this gas piped in from Turkmenistan has created a cottage industry dominated by traders like RosUkrEnergo – half-owned by Gazprom and a group of Ukrainian businessmen who are fronted by Austria’s Raffeisen Bank. The 2009 deal between Tymoshenko and Putin, which was concluded under severe pressure of supply interruption, put in a place a new pricing model and temporarily eliminated the role of RosUkrEnergo.

Whether or not Yanukovych’s legal attack on Tymoshenko is motivated by his sponsors behind RosUkrEnergo or the simple elimination of his competitor, the conviction on “abuse of power” charge is failing to hold much legitimacy. Council of Europe Secretary General Thorbjoern Jagland has stated it most succinctly: “In a democracy, judgment about political decisions should be left to the parliament and to voters, not to courts.

The discord unleashed by this case is meaningful. Not only is Ukraine’s EU membership process now in question, but relations with Russia have also deteriorated. There is deepening uncertainty over the country’s plans for economic integration, the Eastern Partnership, as well as the country’s position in Putin’s vision for a Eurasian Union.

Although Yanukovych has already indicated that the verdict can be reversed, the following day he flip-flopped back to obstinacy, presumably to avoid the perception that he was willing to give in to pressure. With so many conflicting motivations and key interests on the line, one is left with the impression that a high-stakes game has begun, and the main player is way out of his league.

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Robert Amsterdam

Robert Amsterdam

Robert Amsterdam is an international lawyer and founding partner of the law firm Amsterdam & Peroff.

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