Asylum, Schengen and proportional representation

Now here is an interesting little story – somewhat comical to a degree – which leads nicely into Ukrainian voting systems.

Andriy Shkil, a former Batkivshchnya (BYuT) MP of the previous parliament, has been refused asylum by the Czech Republic, a nation well known for granting asylum via the historical legacy of Vaclav Havel who rarely turned an application down.

Why did the Czech Republic refuse his application for asylum?

The answer lays within the Schengen Visa system.

Although free to travel anywhere within the Schengen area once a Ukrainian has a Schengen Visa, they have to enter and egress the Schengen zone via the specific nation that granted the Visa.  If Poland granted the Visa, a Ukrainian who wanted to visit Italy for example, would have to travel there and back via Poland.

Personally I don’t know a Ukrainian who isn’t aware of the rules – although undoubtedly there will be some.

Logic would dictate, following on from such basic rules, that if an individual is going to claim asylum somewhere within the EU, that also will necessarily need to occur in the nation that issued the Visa, rather than seeking asylum in any EU nation an individual may take a fancy to.  Ultimately, a nation issuing a Schengen Visa must have some responsibility for their decision to grant – or not – an individual entry, for it is their decision and not that of any other Schengen area state who may well have made a different decision.

And so, in a way, it is rather comical that a one-time parliamentarian – an individual supposedly bright enough to have been trusted in creating and supporting – or not – Ukrainian legislature, has tried to claim asylum in the Czech Republic on a Schengen Visa issued by France.

Naturally, had Mr Shkil been reelected to the current parliament, he would not be seeking asylum anywhere but enjoying the immunity and impunity being an MP brings – and the fact he is not in parliament today it is not because he was beaten in any constituency seat, but rather due to his very lowly place on the Batkivshchnya Party list when it comes to proportional representation.

The Ukrainian electoral system is a mixed electoral system where 50% of MPs are those who take office through what is officially called Single Member District Plurality (or First Past The Post as most would recognise it), and 50% of MP seats are in parliament due to how high they are placed on their party list vis a vis the percentage of the vote their party gets.

Naturally all the top places on party lists go to the leaders to insure their place in parliament without having to go through the rigors of actually standing against another in the first past the post system in a constituency seat – as they may lose and that would never do!

Placed at 87 on the Batkivshchyna Party list, either Mr Shkil was not willing to pay enough to those who make the party lists to be placed higher, or he was such a poor performer during his tenure that his placing was deliberately done to insure he would not return to parliament.  Given the high number of poor performers on most party lists, he was either simply out bid or truly useless beyond comprehension.

Anybody on party lists lower than position 50 are in a precarious position and are certainly not assured of representing a party in parliament.  87th on a party list is a clear signal you will not get your nose in the RADA trough.

Even if we look at the ways of manipulating the proportional representation part of the vote, 87th place would simply not have been high enough to reasonably expect a return to the RADA.

If we look at the independent form of mixed electoral systems, then the 50% of first past the post seats run completely separately and in parallel to the proportional representation 50%.  This system can lead, for example, to a party winning all the constituency seats and then half of the 50% of seats allocated by proportional representation – thus giving a party 75% of the parliamentary seats.

Alternatively there is the dependent mixed electoral system, whereby proportional representation places parameters on the system, thus is therefore somewhat dominant over first past the post.  For example if a party wins 40% of the national vote, then their party members who win their seats through the first past the post constituency elections take their seats, followed by a remainder from the party list until it reaches the 40% of the popular vote it won.

Yes there are occasions under the dependent system whereby a party may win more seats in the first past the post constituency seat elections, than it should hold under its share of the proportional vote count.  Should that be the case, these “overhanging” seats in excess of the proportional vote are honoured and the parliament extends to accommodate the additional MPs for that session – whilst everybody else is represented by their proportional share of the vote.

None of this would have helped Mr Shkil at such a lowly place on the Batkivshchnya Party list – and neither would manipulating the size of voting districts – as Ukraine, for the purposes of its proportional representation, is seen as one big district rather than allocations on a proportional basis by Oblast (county) level.

Quite simply, the smaller the district, the smaller the number of proportional seats available, and thus the higher the percentage of the vote needed to win a seat.  The larger the district, the more proportional seats available, the lower the percentage of the vote needed to win a seat – not rocket science (albeit political science summed up by the formula X  1/(X+1)).

Anyway, enough of that academic waffle – Mr Shkil is now in France duly seeking asylum there.  The question is, will France grant it given that it is not normally that accommodating compared to the Czech Republic – a nation that was obviously Mr Shkil’s first choice when submitting his asylum application.

Is working in Ukraine as a foreigner about to get easier?

As it is my umteenth anniversary today, and thus via the “ball and chain” and the goodwill of Ukraine, I have permanent residency here, this entry really does not affect me in any way.

In fact it doesn’t affect anybody I know either.

It will undoubtedly affect some readers however – both currently and in the future.

It seems that the State Employment Centre has made assurances that the current (and no doubt overly bureaucratic) systems for granting work permits and temporary resident status (for the purposes of work) are going to be simplified – requiring far less documentation than currently is required – especially so as far as renewals/extensions are concerned, and which will subsequently be gratis if granted for those who have navigated the bureaucratic circus before.

They also state that consideration is being given to raise the duration of such permits from 1 year to 3 years.

A particularly good idea should the EU-Ukraine Association Agreement and DCFTA actually be signed – as not only will foreign confidence increase (to a greater or lesser degree) relating to entering the Ukrainian market at an SME/entrepreneurial level, those who want to do so, may actually stand a reasonable chance of navigating the bureaucratic hurdles that prevent so many currently.

It is necessary of course, to see just how the bureaucracy will be reduced – if at all – and I suspect not at all, other than the more expedited time line requirement for the bureaucracy to function and process applications.

Which documents will be subsequently scrapped from the current list will be far more interesting, as currently some of the documentation required is the barrier to entry – rather than the business environment itself!

Best guess thus far is here.

Eyes down for the Ukrainian draft law bingo numbers!

Well tomorrow should be an interesting day in the Ukrainian parliament.

Up for consideration are UDAR sponsored draft laws 2210 – an up until now completely absent method to impeach a sitting Ukrainian president – and draft law 2221 which is designed to strip the president, MPs, and judges of their immunity (and de facto impunity).

Both laws quite necessary in Ukraine.

However, as reasonable and sensible as these draft laws are in spirit (not to mention necessity), there is somewhat questionable content.

For example, draft law 2210 to enable impeaching a sitting president suggests that only 50 MPs signatures and support are required to bring the issue of impeachment to a full sitting of the RADA.  That seems an incredibly low number of MPs required to instigate a full impeachment session within the RADA.

In fact, given the extremely fractious, polarised and bitter environment that is the RADA, with such a low number of MPs required to raise any impeachment session before the entire RADA, regardless of which party is in power and which is in opposition, scarcely a week could go by without PoR, BYuT, Svoboda or UDAR raising 50 MPs from amongst their number to begin proceedings – without any external help from other MPs external of their parties.

The potential for continuous impeachment issues clogging up the RADA is seemingly immense.

Fortunately for impeachment to actually occur, the draft law requires a RADA majority of 226 for any impeachment to take place.  Altogether a rather more sensible and prima facie democratic number, and yet still rather low if we are to consider the situation whereby there is a parliamentary majority with an opposition president.  Perhaps a higher number yet is required to prevent the RADA becoming even more of a circus than it already is?

With respect to draft law 2221, then the removal of, in particular MPs immunity (and impunity), is something all parties have professed to support publicly historically – and yet none have ever actually done it when they had the chance and were in power.

There is a particular need to put in place some safeguards with relation to MPs when it comes to their actions when acting in an MP – rather than furthering their own private business interests.

In short, with the necessary scrapping of immunity, MPs would need some form of parliamentary privilege to be able to say what they want to within the RADA that will keep them clear of slander, libel or defamation lawsuits.

A vibrant democracy demands that MPs (as well as the media and individuals) should be free to offend, shock or disturb others – be that unease be felt by the public or fellow MPs.  Something the ECfHR was very careful to identify in the case of Erbakan v Turkey (Case number 59405/00 ss56, 6.07.2006).

However, such is the misuse of the People’s Deputies immunity by politicians across all parties, it is an issue that simply must be addressed and rectified – as all parties have publicly stated at one time or another they support.

Why this has not happened seems to be in the timing.  Those at the trough always seem far more reluctant to progress this matter than when they were in opposition.  That is true of the current majority and the current opposition when their roles were reversed.

Anyway, tomorrow when we are listening to the draft law bingo numbers being called out for consideration in the RADA, it will be interesting to see if drafts 2221 and 2210 are amongst those tabled for debate – as is currently the plan.

Italy to open Consulate in Odessa soon

A very short and sweet entry today.

Yet another diplomatic mission will soon open in Odessa – this time Italian - which will please the good woman if it has the ability to produce Visas, as Italy is a nation that particularly attracts her for reasons of history, architecture, food and of course fashion.

Very good.  That makes half a dozen Consulates opened in Odessa in as many years and leaves Odessa housing close to 20 diplomatic missions.

Naturally the UK isn’t one of them – not even an Honorary Consul, despite an ever growing and vibrant local diplomatic community – but I have come to expect nothing less.

EU “Smart Borders” – Easier traveling for Ukrainians?

Now, as we all know, Ukrainian Visa-free travel with the EU should be a lot closer to reality than it actually is.  Particularly as this issue has been deliberately kept free of personality/government image/perception politics and kept fully insulated within the technical and legal requirements to facilitate it.  No more and no less.

The simple fact is, Visa-free travel for Ukrainians is not as close to being a reality as it could be because of the inaction of the Ukrainian politicians failing to pass the necessary legislation and fighting over the business interests when it comes to who will actually get the lucrative contracts to  produce biometric passports etc.

In truth very little blame can be attached to the EU over the failure of Ukraine to do what needs to be done to actually make Visa-free travel a reality for its citizenry.  The goal posts are not moving.  It is in fact an open goal free from effects of  playing field shifting political shenanigans.  Failure to score in the gaping goal is completely and utterly the fault of the Ukrainian political elite – who one suspects are on the receiving end of far fewer Visa refusals than the average Ukrainian.  Quite frankly, nobody else is to blame.

However, whilst the population of Ukraine patiently wait for their lackluster and self-centered elite to do what is necessary to remove what is often a very expensive, logistically burdensome, heavily and often overly intrusive bureaucratic process, the European Commission is trying to convince the European Parliament to engage in a “Smart Borders” project to make travel easier for people from “third countries”.

The cost of this project – an estimated Euro 1.1 billion.  In EU speak estimated is equivalent to saying “at a minimum”.

The system is supposed to divide visitors to the EU into two categories.  Regular visitors (RTS) and occasional visitors (EES).

Regular visitors will apply to be registered as such – and if successful will be given some form of smart/swipe card and can simply swipe their way into and out of the EU – like some form of electronic Schengen Visa centrally issued and centrally monitored.

Occasional visitors will rely on their biometric passports – or not in the case of Ukraine which is still to generate its first biometric passport for the reasons I have listed above.

Those with biometric passport will have the details stored for 6 months on entry – unless they have previously overstayed when such details can be retained indefinitely according to the proposal – Privacy activists no doubt will have issues with “indefinitely”.

Further, all information gathered can be “available to” all national police institutions.  Whether they will be legally bound to delete all information they may take that was “available” after 6 months, I suspect, will become another major issue.  In effect they can “obtain” all biometric data of any non-EU member entering the EU from a centrally held data base (until deleted) at any time – and may not have to delete it after 6 months as the central data base will.

Hmmm.

Privacy issues aside, surely there is only one simple question to be asked and answered here.

Will the new system make life significantly easier for the EU nations, easier for travelers, but strike the necessarily right balance against illegal/irregular migration?  At an estimated Euro 1.1 billion (guaranteed to be much more), “significant” is an issue here!

Anyway, if this manages to get past the European Parliament and actually become a reality, one has to suspect it will not become reality for a good 5 years at least – probably longer.

Will Ukraine have produced a biometric passport by then?

If it has, then many of the legislative (and business interests) that are preventing it actually making Visa-free a reality for its citizenry will have already been overcome.  The technical monitoring phase would be well underway.  Visa-free imminent, in effect.

So whilst the benefits for the EU from this “smart borders” project seem rather limited from the outset (whether that third nation is Ukraine or not) – and are replete with “privacy issues” – the benefits for Ukraine, as long as the politicians get their self-centred fingers out of their incredibly idle arses, should theoretically be zero given the time frames.

……..And yet, I write this in the full expectation of having to register my wife on the Regular Travelers Programme sometime after 2018 – which will have limited benefit to the EU, limited benefit for her and underline just how feckless the Ukrainian political elite across the entire political spectrum actually is.

Not that any of the above will help much with the UK – Due to my wife regularly swapping her eyeballs, altering her fingerprints frequently, and changing the bone structure of her face as often as the bedding, she will necessarily have to continue to haul herself to Kyiv to be “re-biometricised” every time she needs a new UK Visa.

Rather than be offered a postal service option, having already held 4 UK Visas and thus the UK having her biometrics that many times already – we will continue with the idea she is some form of shape-shifter.

Although to be honest, when the next one expires we may never go again – the UK really isn’t that interesting compared to the rest of Europe – and Schengen Visas are easy to get without leaving Odessa should the “Smart Borders” project be rejected and the old systems remain in place.

Slovakia – the Ukrainian tourist’s best friend?

Well I was going to write something quite heavy relating to the forthcoming visit of Stefan Fule to Ukraine on 7th February, bit it will have to wait – if it ever gets written at all now.

Instead, we will have a look at recent statements coming from the Slovakian diplomatic missions in Ukraine.

“If a person already had a visa and used it within the law, that is if he had a tourist visa and really visited the stated place and returned on time, we can give him a visa for five years.” 

If the applicant for a visa has never been to a country of the Schengen area, he will receive a visa for a period of six months to two years, and if he has already had a Schengen visa, he can get a multiple-entry visa for two to five years.

“Slovak diplomats issued 6,000 visas to Ukrainians in January, or almost two times more than in December. They can be issued in Uzhgorod or Kyiv.” – Janka Burianova Slovak Consular General Ukraine

Blimey – 5 year Schengen Visas available from your nearest Slovak diplomatic mission in Ukraine!  (As long as you travel into the Schengen area and leave it via Slovakia).

There will be queues outside their mission in Kyiv and the airports of Bratislava and Kosice may well become a transit hub (after a short stay in Slovakia as per the Schengen rules), for a lot of Ukrainians wanting to visit nations that would otherwise turn down their Visa applications – particularly such long term Visas!

It certainly won’t do Slovak tourism any harm – even if many Ukrainian visitors are only going to stay 24/48 hours in Slovakia before heading onwards into deepest darkest Schengen territory.

Questions over Christmas – Ukrainian civil society…..again

Whilst we here in Ukraine celebrated Christmas, esteemed colleagues, thinkers, policy makers, commentators, advisors, academics, think-tanks et al in western Europe had returned to work revitalised and energised from their own festive season.

So whilst 6th, 7th and 8th have been days of festive excess for me, my email has been steadily collecting questions from a diverse selection of people – from think-tanks in Brussels to PhD students at Surrey University to give you and idea of the spectrum.

From the assorted bag of issues to which my thoughts have been requested to wander and comment, these three questions I will share with you – as well as my initial comments.

1.  ”How would you describe the level of activity of civil society in Ukraine?”

2.  ”How would you describe the level of engagement with government of civil society in Ukraine?”

3.  ”What is your perception of the effectiveness of EU democracy promotion in Ukraine?”

Blimey!

As normal academics ask such simple questions that always involve very long answers – none of which can be black or white, are exceptionally difficult to measure, and almost impossible to judge depending upon what time-frame we are to put on the answer.

So in order to keep this short (and less than academic for the purposes of this blog), I will combine the first two questions.  How would I describe the level of activity of civil society in Ukraine and how would I describe the level of engagement with government of civil society in Ukraine?

Well it is active – and it is vibrant.  It is also mostly ineffective and ignored by government and society alike.

The numbers of civil society entities certainly falls well short of those for most other nations in Europe per capita, if we are to stick to the hard definitions of recognised NGOs, think-tanks, NFPs etc.

It is very, very difficult to think of an instance where civil society has changed any Ukrainian government policy, past or present.  The reasons for this relate not only to the “arbiter/rental society” system that still very much runs through Ukrainian society itself, but also the same ‘rental society” system that covertly runs through civil society – not only in Ukraine.

As far as civil society goes, it needs funding and thus  becomes beholding to those that fund it.  This places it into two broad categories. The first, State funded, and thus assimilated, coerced, cajoled, controlled – anything but independent in the purest sense of the word.

That in turn leads to access to government and possible small victories at the very periphery of the cause the NGO was set up for, in return for defence of, or silence over, government policy that may very well seemingly run quite contrary to the cause of the NGO – but funding is needed for longevity and success requires access to, and a listening government.  Civil society, lest we forget, has become a profession unto itself for many, with access to the elite if you play the game right.

Needless to say, a government funded civil society entity can also be unleashed to pooh-pooh others in the same field who are less government friendly.  In short, and throughout global history, civil society has by and large been treated with hostility by almost all governments of every nation.  The need to now lobby for funds, or “rent seek” for want of a better expression, leads in many cases to complicity for those who receive State funding.

The other group falls into the category of externally funded.  By and large, in Ukraine, these actors in civil society are given nothing more than lip service by the government of the day – at best – and are completely ignored most of the time.

It is not only government that ignores civil society either.  To give two recent examples where civil society was ignored by Ukrainian society at large, the protests that drew more than 10,000 Ukrainians to the streets over the proposed tax code only a few years ago was certainly A-political, was not driven by any NGO, but was simply outrage amongst the populous from every corner of the nation.

Changes were made to the tax code – civil society little more than a witness.

The horrific case of the young girl in Nikoliev last year, raped, burned alive and who eventually died some weeks later, led almost to lynch mobs in the city streets when it became apparent that the well-to-do culprits may well bribe their way out of the repercussions.

Those responsible did receive lengthy prison sentences eventually, but no rule of law entity took that situation by the horns and led the populous either.

Ukrainian society is seemingly suspicious of civil society just as much as any Ukrainian government of the day.  This leaves civil society in its very own bubble, in most cases divorced from a listening ear in government and also divorced from society and the causes within society it claims to champion.

Thus civil society is left to have conversations with itself and any external sponsors it may have, but gets no traction in society or victories from government.

The next tax law amendment to be submitted to the RADA is being done after discussion with PriceWaterhouseCooper – a corporate entity – with almost no civil society input whatsoever – a case in point and an indicator to where influence truly sits and the implications for the future of Ukrainian policy making?

Ukrainian society it seems is prepared to wait for a serious wrong to occur before it will rise up and force government to amend policy – at which point it will return to daily life – with no place/use for civil society whatsoever as the intermediary.

I could go on and on, but now to the 3rd question -  “What is your perception of the effectiveness of EU democracy promotion in Ukraine?”

This is actually quite difficult to assess.  Over what time-frame should it be assessed?  It took the UK 900 years to become a “democracy” as we see it today.  Independent Ukraine is only just over 20 years old.  Not that time is necessarily a justifiable excuse.  Poland managed to progress very well in a very limited time-frame.

That said, Poland had a far more autonomous administrative infrastructure than Ukraine when the USSR and Warsaw Pact dissolved and Poland was left with a real and urgent need to modernise every part of the national psyche when Germany and not Russia became the most important geopolitical entity overnight.  Needs must – and in Ukraine the need thus far has not been a must.

Despite the Euro hundreds of millions pumped into EaP civil society by the EU, it is actually quite unclear how this money is being effectively measured when it comes to “success”.  What is “success” when it comes to Ukrainian civil society?  The longevity of the entities?  The number of entities?  The almost non-existent civil society victories when changing government policy?  The support of society for civil society?  Is it simply a case of getting to a stage where most Ukrainians could name just 5 civil society entities working in Ukraine – let alone their region?

It is difficult to assess the pros and cons of the EU and in particular the EPP headlining Ms Tymoshenko as a democracy issue – almost “the” democracy issue – when scanning the Ukrainian and European press.

Throughout her trial, arrest and on-going imprisonment demonstrations for her release have not numbered more than a few thousand, even if we include those demonstrators paid to demonstrate.  A beacon of democracy she is not in the eyes of the Ukrainian public – no matter how much she may quote or plagiarise Vaclav Havel (and others) from her current accommodation.

The sting in the tail of the final ODIHR report on the Ukrainian 2012 elections seems somewhat muted due to Ukraine taking over the 2013 chair of the very organisation that generated the report.

Internal EU issues with Bulgaria, Hungary, Romania, the Roma, the Euro, ad hoc adherence to ECfHR rulings, the structural issues of the supra-structure itself etc also do not go unnoticed.  The EU and its constituent parts are far from walking their own talk and this creates an apathetic atmosphere towards the EU.  An atmosphere frustrated and multiplied by the hassles of getting Visas to enter the EU for many Ukrainians.

Furthermore, the EU, or rather its constituent parts, seem to have no clear and identifiable plan for Ukraine – neither short or long term.  Certainly not one that has been conveyed to the people of Ukraine.  What is the external incentive for the average Ukrainian to move from the rental society model to a model of a supra-structure that has no clear plan for them or their nation, should such a painful social upheaval take place?

What carrot is on offer to them as individuals to force change from the bottom up – particularly when the model on offer has had some very significant flaws pushed into the limelight over the past 5 years, none of which seem to have been dealt with?

“Do as I say, not as I do” will not float here anymore than faith in civil society will come from the masses as an unconditional goodwill gesture.  Perception counts in a nation that has a deeply ingrained cynicism towards “the structure” and those within “the structure”.

For whatever effort the EU is putting into promotion of democracy in Ukraine, it is quite unclear how they are actually promoting it to the people – let alone effectively – as government is listened to with a massive degree of cynicism (regardless of government) and civil society talks only to itself and has yet to work out how to effectively engage with the populous.  Yet there seems to be absolutely no direct communication (or even attempt) by the EU to engage the people of Ukraine, despite these obvious issues.

That said, many a citizen within the EU would state that the EU is exceptionally poor at reaching out to them directly also.

These are naturally my first thoughts in response to the questions asked, and empirical they are in their context.  I may return to this in more depth later in the year!

More embarrassment? Barroso, Moldova and Ukraine

Only a few days ago I wrote this and suggested that the national embarrassment of coming in second behind Moldova, a nation that is the butt of all Ukrainian jokes when it comes to stupidity, may be a useful lever in EU/Ukrainian relations.

It seems other may also think it not a bad idea either.  Only 2 days after I wrote that, Mr Barosso of the EU added further embarrassment to the authorities in Kyiv by stating that the EU and Moldova expect to sign the Association Agreement between both parties in September 2013, such is the progress that has been made.

That immediately puts pressure on Kyiv to un-stick  the signing of the EU-Ukrainian Association Agreement  currently floundering over issues, most notably Ms Tymoshenko’s incarceration, preventing a signing that would in all likelihood have been completed by now if she had not been jailed.

Unfortunately, that however, now ends the wafting around of the Moldova stick as far as Ukrainian political ego is concerned by the EU.  Nevertheless it has been successful at getting the legislation for Visa-free back to the top of the political agenda now Moldova moves to Stage 2 of the road-map process and Ukraine remains mired in Stage 1 and maybe it will prove equally motivating for the Association Agreement.

When the electoral circus eventually leaves town, it will be the time to look at the policy priorities for the rest of the year.