Prosecution Of Tymoshenko In Ukraine: An Internal Political Tool, Not a Gas Contract Revision Tool

Ukrainian authorities have launched a fresh criminal investigation against former Prime Minister, Yulia Tymoshenko, along with the criminal prosecution of Oleh Dubyna, head of Naftohaz Ukrainy under Tymoshenko’s premiership. Both are charged with exceeding their powers and inflicting massive economic damage on Ukraine by concluding the January 2009 gas supply agreement with Russia’s Gazprom, allegedly in breach of Ukrainian laws. Technically, Dubyna signed the agreement for Ukraine, capping negotiations between Tymoshenko and Russian Prime Minister Vladimir Putin, both of whom attended the signing event in Moscow.

Hardly anyone, in Ukraine or abroad, doubts that President Viktor Yanukovych’s government has inspired these criminal proceedings. Some Ukrainian officials and commentators suggest that the agreement can be annulled, and the gas price re-negotiated in Ukraine’s favor, if Tymoshenko and Dubyna are proven to have violated Ukraine’s legislation when negotiating and signing the agreement. Some even credit the current government with orchestrating the prosecution as a tool for pressuring Moscow to re-negotiate the gas price. According to this scenario, Ukraine would appeal to arbitration courts in Stockholm or London to invalidate the agreement on grounds of its noncompliance with Ukrainian laws. In a variation on this wishful scenario, Moscow would settle with Ukraine and re-negotiate the gas price, rather than going to international arbitration and facing demands to disclose secret documents there (Zerkalo Nedeli, April 23).

Inna Bogoslovskaya, a prominent parliamentarian from the governing Party of Regions, chairing the Rada’s special commission to investigate the gas agreement, launched on April 11 that line of speculation. Inasmuch as the agreement is illegal under Ukrainian law, she and others claim, Ukraine can use the same agreement’s arbitration clause and seek its re-negotiation in the Stockholm court. Bogoslovskaya was speaking on the same day (April 11) that the Prosecutor-General’s Office announced this new investigation against Tymoshenko. The First Deputy Prosecutor-General, Rinat Kuzmin, in charge of the case, went on to claim that Tymoshenko lacked proper legal authority to negotiate (and Dubyna to sign) the agreement. According to Kuzmin, this would provide sufficient grounds for challenging the agreement’s validity in international arbitration courts (Interfax-Ukraine, UNIAN, April 11, 15, 18, 20).

The criminal prosecution is moving faster against the jailed Dubyna. The prosecution seeks to build a case that Tymoshenko ordered him to sign the January 2009 agreement. Thus, she is clearly the main target in this case, the third initiated against her since the current authorities came to power in early 2010.

For a case orchestrated by circles from the Party of Regions, it may seem ironic that charges against Tymoshenko include disobeying negotiation guidelines from the then President Viktor Yushchenko. In fact, Yushchenko’s energy team had brought the notorious RosUkrEnergo into Ukraine in 2006, with the then-president himself providing political cover for the deal. The Tymoshenko government’s main goal in the January 2009 negotiations (and in defending successfully against Gazprom’s cut-off of supplies that month) was to remove RosUkrEnergo from the Russia-Ukraine gas trade. The January 2009 agreement achieved that goal. Under the Party of Regions’ government, RosUkrEnergo is back, linked to the same figures who had allied tactically with Yushchenko in the twilight of his presidency.

However, the Party of Regions’ leaders and party-affiliated industrial interests do not intend to challenge Moscow in international courts any time soon. The Kyiv newspaper Segodnya, an outlet for the Party of Regions and Donetsk industrialists, has published an extensive debate on this issue, with almost all participants warning against the risks of going to arbitration against Russia (Segodnya, April 18). Evidently, industrialists are loath to jeopardize the stable supplies of Russian gas; while the government (mainly at their prompting) is considering a wide range of possible economic concessions to Moscow, in return for a second round of cutting the price of gas (EDM, April 22).

President Yanukovych has weighed in with a legal argument against resorting to international arbitration. According to him, proving that the agreement was negotiated unlawfully from a Ukrainian standpoint could not cause Russia to annul or re-negotiate it. Such a finding would have no bearing on Russia’s actions in concluding that agreement. Prime Minister Nikolai Azarov also insists that Ukraine cannot revise the gas agreement unilaterally, but only by agreement with Russia. Following Putin’s and Russian Deputy Prime Minister Igor Sechin’s visits to Kyiv on April 12 and April 19, respectively, Yanukovych and Azarov insist that Ukraine would strictly observe the existing gas agreement on a quid-pro-quo basis with Russia (Interfax-Ukraine, April 18, 21).

Thus, the anti-Tymoshenko investigation does not look like a tool to de-legitimize the Ukraine-Russia gas agreement, whether on the bilateral or the international level.  Possibly, some circles in the Party of Regions briefly considered such a possibility, but the idea has been squashed from on high. This investigation and prosecution is being used by the authorities purely as an internal political tool at this stage.