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28th May 2022

Court ruling is 'test' of Yanukovych's EU intentions

Tuesday's (30 April) ruling by the human rights court in Strasbourg will test whether President Viktor Yanukovych really wants EU integration, the Ukrainian opposition says.

The European Court of Human Rights (ECHR) said in its verdict that judge Rodion Kireyev's decision to put former prime minister Yulia Tymoshenko in pre-trial detention back in 2011 was "arbitrary and unlawful."

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  • Tymoshenko waves from police van outside court back in 2011 (Photo: byut.org)

It noted that he did not do it because she might abscond, but for "other reasons."

Three of the judges added in an annex that his "ulterior motives" were related "to the applicant's identity and influence as a leading opposition politician in Ukraine" in the run-up to parliamentary elections.

The ECHR is still pondering a second case on whether Kireyev's subsequent jailing of Tymoshenko for seven years on charges of abuse of office was also political.

But the fact the same judge is involved already undermines the seven year sentence.

Yanukovych now has four choices.

He can appeal.

He can do nothing for three months until the preliminary judgement becomes final under ECHR procedure.

He can point to the fact Tymoshenko also faces charges of murder and of embezzlement in two other ongoing trials in Ukraine as a pretext for doing nothing until the trials end further down the line.

Or he can implement the ECHR verdict.

A court spokeswoman said it is up to Ukraine to decide what implementation would mean and that its reaction will be evaluated by a special ECHR committee.

For its part, the EU diplomatic service stopped short of saying Yanukovych should free Tymoshenko.

It noted that he should "reconsider thoroughly [her] situation" and "take urgent steps to remedy the systemic procedural shortcomings identified" by the ECHR in his judicial system.

But several MEPs did call for Tymoshenko to get out.

"The ruling … confirms the trial against Tymoshenko was politically motivated. Tymoshenko must be freed immediately," Elmar Brok, the German centre-right deputy who chairs parliament's foreign affairs committee, said.

At stake is a major shift in post-Soviet politics in Europe.

If EU countries deem that Yanukovych is ignoring their demands for reform, they will refuse to sign an association and free trade pact with Ukraine at a summit in Vilnius in November.

The treaty would put Ukraine on a path to one day join the EU.

But without it, there is every chance it will instead join a Russia-led Customs Union, putting it back in Moscow's sphere of influence.

At the same time, if Yanukovych does free Tymoshenko, he risks seeing her topple him from power in next year's presidential elections - a recent poll noted that 37 percent of Ukrainians see her as the main opposition figure in the country.

"This is a test. If Yanukovych wants to sign the [EU] treaty then he has to act accordingly," Hryhoriy Nemyria, an MP from Tymoshenko's party, told EUobserver.

"If the government says that they will study this verdict and that they might appeal, it would be clear for me that he has failed the test," he added.

Yanukovych himself did not react immediately.

But Vladyslav Zabarskiy, the head of the legal service for Yanukovych's Party of the Regions quibbled about the meaning of the Strasbourg verdict.

He noted that only the annex, not the verdict, speaks of political motives. He also made a big deal out of the ECHR's agnosticism on Tymoshenko's claim she was physically mistreated.

"There is no single reason to say today that the ECHR decision can be the basis to change somehow the situation with Tymoshenko," Zabarskiy said.

Behind the scenes, some EU countries are worried that the ECHR and MEPs such as Brok are playing into Yanukovych's hands.

"There is a feeling that despite what he says, Yanukovych does not really want to sign the association agreement. But at the same time he wants the EU to take the blame for it," one EU diplomat said.

If the feeling is right, it creates a fifth and a sixth option for Yanukovych as well.

He could free her but not rehabilitate her, meaning that she could not run in the presidential vote and that EU countries would be unlikely to reward him for it.

Or he could free her but do it so near the November deadline that EU officials would not have time to prepare a common position on the treaty signature.

Either scenario would make it easy for Yanukovych to spin the death of the treaty as Brussels' fault, the EU diplomat said.

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