Cause and Effect in European Politics and Law

The Ukrainian Jigsaw Puzzle

Adelina Marini, May 21, 2012

What is happening in Ukraine is a question that is tormenting Europe more and more. And an even more worrying question is what can Europe do. Regarding the current stalemate between the EU and Ukraine, Konstanty Gebert, head of the Warsaw office of the European Council on Foreign Relations, said for euinside over the phone that Ukrainian President Viktor Yanukovych had not expected things to develop that badly and that the 'Tymoshenko' case could have such an impact. May be it would be very true to say that the EU too had not expected Yanukovych to show such tenacity to continue to resist the EU and the member states, while at the same time stating again and again the Euro-Atlantic orientation of his country. But unlike Yanukovych, however, the EU has leverage and it hardened the tone.

When the knife has penetrated deep to touch .... football

In fact, the stalemate has drawn a lot of attention because of the upcoming European Football Championship Euro 2012, co-organised by Poland and Ukraine. The two countries have invested significant amounts of money in building stadiums, sporting facilities and infrastructure, anticipating huge economic and political benefits. Poland is the motor Ukraine to be paid enough attention as a strategically important and big neighbour. As Konstanty Gebert points out, "ultimately, there is no grey zone between the EU and Russia in which Ukraine can navigate - it's too big and too important. So, if the current crisis is solved, I just hope that there will be enough determination in Brussels to continue pulling Ukraine towards Europe".

No one on the two sides of the border expected that the situation would unfold in such a way. As early as the end of last year the EU threatened it would freeze the completion of the five-year long negotiations on a framework agreement, unique in nature with an external partner of the EU, that includes partnership for deep reforms and good trade conditions. The reason for these threats was the trial against the former Ukrainian PM and opposition leader, also known as the 'gas princess', Yulia Tymoshenko. She was accused of abuse of power because of the concluded under the pressure of dire circumstances (the January gas crisis of 2009) new agreement for gas deliveries with Russia at higher prices. Ms Tymoshenko has been sentenced to 7 years in prison and is currently in jail, but the accusations against here continue and it is not impossible that her sentence is prolonged.

The EU believes that the trial against her is politically motivated with the aim to eliminate every strong competition to President Viktor Yanukovych for the parliamentary elections in October this year. An accusation Kiev denies and justifies with the old legislation of 1962. Recently the Euro-Ukrainian relations got even more tense after Tymoshenko's headquarter spread photos, showing that the former premier was beaten while in jail. The pressure over Yanukovych to make the right decision has increased to such an extent that several European countries announced that they would boycott Euro 2012 in a protest against Yanukovych.

Brussels has hardened the tone

However, a common EU boycott was avoided. The issue of relations with Ukraine was discussed over lunch by the EU foreign ministers on May 14th in Brussels, but the discussion was chaotic. According to euinside sources, there were countries that said they would boycott the Ukrainian part of the Championship, while others argued this should not be done. Leaders of the countries that do not want the dialogue with Kiev to be interrupted are Poland and some Baltic states. The EU High Representative for the foreign affairs, Catherine Ashton, insisted against a common European position. After the meeting of the ministers she announced that for the moment no common actions were envisaged and that the situation was closely monitored. She recalled, though, that Ukraine was expected to suspend the practise of selective justice and to ensure free and fair elections in the autumn.

The conditions the EU puts forward were explained very well and in detail by Danish FM Villy Sovindal after the 15th Cooperation Council with Ukraine, in which took part Ukraine's PM Mykola Azarov on May 15-16 in Brussels. "Our relations with Ukraine are passing through a difficult phase and I'm not going to hide that but we are still talking and we are talking about substance", he said, adding that the dialogue with Kiev was very honest. Words, confirmed later by Mr Azarov too. Three are the measures which Kiev has to undertake: to pay attention to the problem of selective justice, which includes several opposition leaders, among which the former prime minister; to hold free and fair elections in October; to ensure real acceleration of the agreed reforms.

The pressure on Ukraine no longer consists only of not starting the process of initialling and ratification of the free trade agreement but also of the danger Euro 2012 to become a political and sports failure. Here the stakes are really high, as Konstanty Gebert, the analyst, also commented. "However, a European boycott is not possible because Poland is a co-organiser of the euro and we can hardly boycott an event that we are co-producing. Therefore, there will not be a unanimous EU declaration for boycott but not many EU politicians would show up in Ukraine".

According to Stefan Fule, the enlargement commissioner, there is no plan B, because "we believe that the abandonment of the association process would be a betrayal of citizens and a betrayal of the principles of the Eastern partnership". Ukraine continues to insist that Tymoshenko's case is not politically motivated. Premier Azarov explained to journalists that there was a clear violation of law in the case of Yulia Tymoshenko. This was about falsification of documents in relation to the signature of the gas delivery agreement, which brought severe losses to the country and its citizens. According to Azarov, Ukraine currently overpays Russia $8 bn every year. "This is the amount because of which our people do not get pensions, their medication in the hospitals, etc".

How to solve the problem?

At this stage the situation indeed is a stalemate, but there is an exit. One of the options was offered by Azarov himself, when he announced that he had proposed to the European partners representatives of the judicial systems of the EU member states to be invited for the cassation process, so that they can review the entire documentation, to learn more about the proceedings, to listen to all the facts. "Everybody is equal in front of the law, including the former PM. Nobody in our country is prosecuted based on political reasons. We are ready to go as far as possible so that we do not have problems with the Europeans but this has to go both ways. We need to have trust", Azarov said.

Another option, discussed unofficially and by analysts as well, is a legal loophole to be found that would allow Tymoshenko to be freed in exchange for the initialling of the Association Agreement, which would launch a process of ratification.

But some member states started to lose patience and nerves. Such was the case with Angela Merkel, the German chancellor, who compared Ukraine to Belarus - words, which practically doom Ukraine to full isolation and ultimately to its turning into an authoritarian enclave between Putin's Russia and financially ravaged Europe. At the moment Ukraine is on the verge and it needs a little to be pulled onto the right path and as little to start sinking further. Konstanty Gebert described Merkel's rhetoric as ridiculous and was surprised by that because, in his words, "she is a well informed woman and knows better".

"Morally, yes, Yanukovych is no better than Lukashenka. Actually, given his personal record as a convicted bandit and rapist, he's worse but politically Ukraine cannot be compared to Belarus. You still have a very viable and free press, you've got an active civil society and active opposition that even might win the October parliamentary elections. Ukraine's main problem is that it has a weak and disorganised state, which enables a strong man on top to seize it and use it for his own benefit", added the chief of the Polish bureau of the European Council on Foreign Relations.

It is precisely for this argument that the EU should not miss this opportunity and to push forward with pressing Ukraine. Recently another analyst said that the big difference between Ukraine and Russia, for example, was that since its independence in Ukraine various politicians were on the presidential post. It is obvious that 20 years of independence are not enough for the country to step firmly on its democratic legs and this is why the EU has to prevent the attempts Ukraine to be transformed into Russia.