Brief summary
Ukraine has been independent for already 20 years, but only after the Presidential elections of 2010 the new Government began to carry out a broad programme of reforms in every aspect of state and civil life. This policy has met positive response from the international community. The downfall of the economy has stopped, macroeconomic indicators have changed into positive figures, enabling Ukraine to renew its programme of cooperation with the IMF.
A crucial element of the reform is the fight against corruption. As a result of anti-corruption measures more than 400 criminal cases were opened against top figures in the executive and self-governing bodies. Against this background criminal cases against persons from the past government are just an insignificant percentage of all cases opened so far.
The leadership of the country is aware of the great responsibility to the people of Ukraine and to the international community in relation to the resonance case of the former Prime Minister Mrs. Yulia Tymoshenko. This case is in fact the indicator of the maturity of democratic standards and institutions in Ukraine.
According to the Constitution of Ukraine and to the European democratic law principles the Ukrainian State functions on the basis of legislative, executive and judicial powers. That means neither President nor Government or Verhovna Rada shall have any straight influence over the functioning of the national judicial system, inter alia, in the case of the former Prime Minister. Mr.Yanukovich, President of Ukraine, stressed this several times in his public statements.
Of particular concern is the fact that the Mrs. Tymoshenko's defense together with some political forces, realizing the seriousness of charges, began a loud and deliberate campaign in Ukraine and abroad to discredit the court and the trial itself.
The aim of this campaign is to disrupt the trial, to harm the national and international prestige of the current government on the eve of parliamentary elections in 2012 and, eventually, to try to recover much lost popularity ratings of Mrs. Tymoshenko.
The defendant side actively imposes its opinion about alleged political motives of the "Tymoshenko case", about biased investigation and the court, as well as about Ukraine's leadership allegedly interfering into the case proceedings.
The aim of this non-paper is to remind some basic facts about this case Mrs. Tymoshenko should either confirm herself or should not confront in her public statements. It is necessary to keep in mind, however, that the last instance to make final conclusions is the Court.
Clear facts about the substance of Mrs. Tymoshenko's case.
1. According to the paragraph 4, Art. 6 of the Law on International Treaties of Ukraine, adopted in its initial version as early as in 1993 and based on the principles of the Vienna Convention on the Law of Treaties of 1969, authorization to conduct negotiations and to sign international treaties on behalf of the Government of Ukraine is provided exclusively by the Cabinet of Ministers of Ukraine as a collegial body. The Prime Minister herself could not authorize anybody to conduct negotiations on behalf of the Government.
2. The Government of Ukraine has been the only responsible side and a sovereign guarantor on behalf of Ukraine in the sphere of purchasing the Russian natural gas during all the 20 years of relations with the Russian Federation.
3. The Cabinet of Ministers of Ukraine held two consecutive meetings on 19 and 21 January of 2009, dedicated to the negotiations with Russia on the natural gas deal and on the item of issuing relevant authorization (directives) to the Prime Minister. No respective decisions or directives whatsoever were issued at those meetings.
According to the official verbatim report of the meeting of 19 January 2009, the drafted directives have not been approved due to the position of the majority of the ministers, who were against the proposed formula of the gas price.
4. However, in the course of negotiations, a document, entitled "Directives of the Cabinet of Ministers of Ukraine" and having all necessary requisites of authorization to conduct negotiations and to conclude agreements, including Mrs. Tymoshenko's signature and the official Governmental seal, has been delivered to the members of Ukrainian negotiating team. This document, taken as genuine, has finally determined the position of the Ukrainian side on the terms of the gas treaty with the Russian Federation, inflicting substantial damage to the national interests of Ukraine as well as significant financial losses.
Conclusions:
- Mrs. Tymoshenko and her accomplices have authorized the Ukrainian governmental team to negotiate with Russia by forging the decision of the Government, which in reality did not exist.
- Mrs. Tymoshenko has abused her powers in negotiating with Russia, since she did not have the right to decide on her own about conferring any directives to the negotiators.
- In case the Cabinet of Ministers would have approved the said powers to negotiate and to sign the agreement, there would be a place for the political responsibility of the whole Government. But in the situation where the Prime Minister made the decision alone, abusing her powers and forging necessary procedures, she clearly became liable to the criminal proceedings, and not to political responsibility.
Clear facts about Mrs. Tymoshenko's trial.
1. The Ukrainian Government and the Kiev City administration have guaranteed the unprecedented openness of the trial, permitting direct TV broadcast of the court hearings as well as permanent civil protest actions in the immediate vicinity of the court premises. The judge, who is considering the case, shows outstanding patience and tolerance to the parties in trial.
2. In spite of this, Mrs. Tymoshenko permanently and demonstratively humiliates the court, with insults and threats, especially during direct TV broadcasts. At the same time her supporters which gather near the court premises, day by day are disturbing the court by creating permanent noise and pressure on the trial participants arriving at the court. Among others, they assaulted the witnesses Mr. Shlapak and Mr. Yuschenko.
3. Permanent and grave violations of the norms of the procedural law and of traditional morality forced the court to rule to detain Mrs. Tymoshenko, who seemed to provoke the court to make such a rule with the aim of increasing her publicity.
Clear fact about damage to the national interests of Ukraine as the result of the agreements concluded by the former Prime Minister without proper authorisation.
As the result of the agreements made by the former Prime Minister, Ukraine has received perhaps the worst conditions on Russian natural gas imports among all consumer States.
1. The price of Russian gas imported by Ukraine has skyrocketed. In 2008 Ukraine paid $179,5 for the thousand cubic meters of Russian gas. In 2011 the average annual price will reach $309 for the thousand cubic meters (including the discount of $100 due to the Kharkiv agreements of 2010), and in the 4th quarter of the year it will reach $401. Just to compare, if the basic formula for the gas price calculation for Ukraine had been the same as for Germany, Ukraine would have paid in 2011 for the Russian gas only $233 for the thousand cubic meters.
2. The contracted basic price in the overall Russian gas price formula for Ukraine is established at the level of $450, which is significantly higher than the average price for the EU member states.
3. The price of transit of Russian gas through the territory of Ukraine is understated by almost a half. For example, in the first quarter of the year 2011 the transit tariff was $2,84 for the transportation of 1 000 cubic meters of gas for a distance of 100 km while the rationally required tariff should be at least $5,85.
4. According to the agreement signed by Mrs. Tymoshenko, Ukraine is obliged to purchase the yearly volume of 52 bln. cubic meters of the Russian gas, which significantly exceeds real demand, without the right to re-export it. For example, Ukraine intends to purchase only 40 bln cubic meters in 2011, more than enough for all its demands.
5. Consequently, if gas is not purchased in the volumes defined by the contract, a fine of 300 % of the contractual value that has not been purchased, is imposed on Ukraine.
6. Only in 2011 financial losses, inflicted by this agreement, are estimated at nearly $5 bln. Similar or even higher losses are expected for the following years.
Clear facts considering the possible conflict of interest in Mrs. Tymoshenko's actions.
The Ministry of Defense of Russia in 1996 signed an agreement with the United Energy Systems Corporation, headed at that time by Mrs. Tymoshenko, on the barter operation of selling gas in exchange for goods for the need of the Ministry. The terms of the contract have never been fully met by the Corporation, and there is still a corporate debt of $405 mln on its part, as confirmed by the letter from the Ministry of Defense of the Russian Federation to the Prime Minister of Ukraine.
This puts a question mark on Mrs. Tymoshenko's ability to impartially handle the gas negotiations while having such a substantial conflict of interests.
