Kiev and the EU: Who Will Blink First Over Tymoshenko?

September 19, 2013
James George Jatras
Deputy Director, AIU

As the days tick down to the European Union’s Hamlet-like decision to offer, or not to offer, to sign the Association Agreement and Deep and Comprehensive Free Trade Agreement (AA/DCFTA) with Ukraine, the situation of former Prime Minister Yulia Tymoshenko and the importance of resolving her situation remain as unclear as ever. With Brussels having insisted on deadline after deadline for making a final decision, the question of whether anyone in Europe takes Tymoshenko’s fate seriously is increasingly open to speculation.

Kiev’s formal position on her possible pardon seems to remain inflexible. President Viktor Yanukovych has been quite specific that he does not have the legal authority to release his onetime electoral rival: “Unfortunately, in Ukraine, nobody has such authority, including the president ... Our laws do not allow for such circumstances.” At the same time, he added a possible hint of future flexibility if the Verkhonva Rada enacted new legislation: “The law would have to be changed so that someone would be provided with the authority to do this.”

Notwithstanding, rumors of Tymoshenko’s “medical release” to Germany persist – while remaining just rumors. At one point, the magic day was to have been September 15, but that date has come and gone. According to her daughter, Yevgeniya, there may be a new deadline: “At the moment we’re not sure when her freedom will happen, so we just hope that it will be before October or any time now. We understand that the European Union is putting a lot of pressure for this condition to be realized.” But will either the pressure or the deadline mean more than they have thus far?

One of the EU’s transparent mechanisms to avoid taking a clear stand is the distinction between a “condition” and a “criterion.” Put bluntly, the former matters and the latter doesn’t.

For example, in recent days more than two dozen of members of Lithuania’s ruling coalition registered a draft resolution in the Seimas urging Ukraine to release Tymoshenko “in line with the verdict of April of 2013 of the European Court of Human Rights, which suggests that the accusations are politicized and selective.” Furthermore, reads the draft resolution, EU Member States should “continue considering the release of Yulia Tymoshenko as one of the key criteria for signing the Association Agreement with Ukraine during the Eastern Partnership summit that will take place in Vilnius in November.”

So what’s new? Once again, there’s a world of difference between just one of the “criteria” and a drop-dead condition.

A similar impassioned plea was made recently in the Kyiv Post by Oksana Bashuk Hepburn of the Canadian Group for Democracy in Ukraine: “It falls upon friends like Sweden and Poland who started the move towards the Association Agreement to have it end quickly and well. This means convincing the president to let Tymoshenko go. All democratic governments need to do likewise in the two months that are left.”

But again, should those governments demand her release as a conditon of the AA/DCFTA, or not? It isn’t clear.

Somewhat contradictorily, the suggestion is also floated that the EU’s offering the AA/DCFTA is the only way – after Vilnius – to secure Tymoshenko’s release. Svoboda deputy Ruslan Koshulynsky has noted that while a bill on decriminalizing the charges on which Tymoshenko was convicted has been introduced in the Rada, it will be acted on after the Vilnius summit but before the 2015 presidential election campaign. This idea fits into the theory that the AA/DCFTA should not be signed because Ukraine has met the criteria demanded by the EU but as a means to help meet the criteria post-signing.

For what it is worth, Tymoshenko herself stated to Ukrainska Pravda her belief that the AA/DCFTA “will be signed and this faith is enough for me. Today I don't have doubt that . . . Ukraine will sign the Association Agreement for sure and will become a full member of the EU even sooner than we expect.” No one in the EU is talking about full membership anytime soon, if ever. (It should be noted that Turkey signed an Association Agreement with Europe in 1964 – and 49 years later is nowhere near to receiving an offer of membership.)

Amid all the confusion and contradictions, Brussels and Kiev seem to be engaged in a down-to-the-wire standoff. Voices in the EU and the Ukrainian opposition are stepping up public pressure to secure Tymoshenko’s release before a final decision on the signing. On the other hand, barring some rabbit-out-of-a-hat decision to send Tymoshenko to Germany – in contradiction of its stated position to date – Kiev seems to be betting that they can keep her in jail and still sign in Vilnius.

Who will blink first? Among the big uncertainties is the real attitude of German Chancellor Angela Merkel, who is privately rumored to be more willing to block the agreement than is commonly supposed.

Conversely, if the EU decides they don’t care about Tymoshenko all that much after all, and the AA/DCFTA is signed while she remains in prison, what real incentive is there for Kiev to free her afterwards? No doubt Tymoshenko’s release would become one of the “key criteria” – but still not a “condition” – for ratification of the AA/DCFTA by Member States.

The ratification process would take years, beyond 2015. Will Tymoshenko spend it in jail?