New model for Ukrainian judiciary sent to Venice Commission

Not that long ago I wrote an entry relating to the almost forgotten entity that is the Constitutional Assembly of Ukraine.

Well, the Constitutional Assembly has now sent the Venice Commission its draft for amendments to Chapter VIII (Justice) of the Constitution of Ukraine, a draft that proposes a new judicial model – a model that takes into account most of the previous recommendations of the Venice Commission – apparently.

Of particular note, not to say importance, is the creation of a body to be called the “High Council of Justice”, created from within the judicial system, with members appointed by the members of the judiciary, rather than by parliament or president.

A major step towards a truly independent judiciary – not withstanding the dark and foreboding shadow relating to the fact that politicians in Ukraine currently still appoint and dismiss judges – a fact that necessarily undermines judicial independence – and that any members of this new body will be there, initially at least, due to the political patriarchy that has placed them where they are today.

Another major inclusion is the removal of immunity (and de facto impunity) of judges.  They will be subject to the  laws they interpret and service, just like every other citizen in Ukraine (except the politicians who are yet to vote to remove their own immunity (and de facto impunity)).

Let us hope that the Venice Commission is swift in its appraisal of the submitted draft, finds the vast majority of it acceptable – if not all of it – and returns it for RADA consideration expeditiously whilst there remains some political  momentum to try and appease EU sensibilities.

Privitising State/municipal print media – Ukraine

There were an awful lot of low profile but interesting things said at the Party of Regions Council meeting at which both President Yanukovych and Prime Minister Azarov were present on 21st March – some of which made it to the President’s website.

So many in fact, I may return to the statements and comments of the meeting over the next few days.

However, today, I will pick up on the issue of the privitisation of the State and municipal print media – a necessary privitisation in line with the commitments of Ukraine to the Parliamentary Assembly of the Council of Europe (PACE).

It would seem the President is rather tired of waiting for this to happen and has issued a direct instruction for this matter to be legislatively prepared and submitted to the RADA by 5th April.

Hmmm!

Firstly, it is of course quite right that Ukraine honour its international commitments – but -

The President’s instruction calls for the input of journalists, editors and professional associations for this legislative bill.  Today is 22nd March.  Unless there has been considerable work on this bill already – including their input – then the time line would seem either impossible to achieve, or the result of the legislation will leave much to be desired.

That said, as is so often the case, Ukraine is not reinventing the wheel here – it is not the only FSU/Warsaw Pact nation to have to deal with this issue.  Many have successfully managed it already.  Models and legislation therefore already exist amongst Ukraine’s neighbours – albeit every nation is slightly different.

Arguably this privitisation is one of the easiest and less politically fraught ways of displaying progress in media reforms – as demanded by both the EU and CoE respectively, whilst not forcing the oligarchy to hold media assets that are not part of their core business to save the media falling under the control of the opposition – if indeed they have that much interest in owning it.

After all, what exactly does the State and municipal print media produce that could rival the TV, radio and on-line media assets controlled by the oligarchy?  What immediate danger is there in privitising those who, in the main,  produce forms, books and information pamphlets – particularly when any owner of a newly privitised print company will be needing the national and local government work to survive whilst they try and expand into other areas of print?

But therein is the problem for would-be owners when this privitisation comes to pass.

Buying such entities leaves a heavy reliance on the patriarchal benevolence of central and/or local government to have continued State and municipal work come your way.

Given the issues facing print media in general via the competition from TV, radio and the Internet, what chance of meaningful and profitable expansion?

In short, unless you are guaranteed a lucrative central/local government contract – for example the production of biometric passports, or the Odessa City Administration contract for forms and pamphleteering – why would you entertain buying a privitised State print entity?  You would surely have to sit very comfortably within the existing national or local patriarchy to entertain the idea.

That being so, whilst it is an international commitment of Ukraine to privatise the State and municipal print media, any successful privitisation would seem destined to simply give control of the State/municipality entities to vested interests via nothing more than an intermediary/shell in practice.

You wonder whether, perhaps, such entities could have been spun off to become something similar to a “University Press” – possibly under an LLC protective umbrella for respective universities – and then such municipal funds spent for books, pamphlets and forms et al., could at least then be used to off-set the costs of – or indeed expand – the universities in local cities and towns.

It is just one thought that comes to mind without spending no more than 5 seconds contemplating the issue.  If I gave it more thought, undoubtedly other, and perhaps better,  proposals would come to mind.

Anyway – two immediate issues come to mind.  The legislative time table, and lack of time to arrive at anything resembling decent legislation – and secondly, who will want to buy such entities without some form of long term guarantee of continued work from the State/local government?

If such guarantees are forthcoming, then these entities will most certainly be bought by those who sit snuggly within the patriarchy.  Is that then privitisation – or cronyism/corruption adopted under the cloak of promises to the EU and Council of Europe?

Council of Europe – Committee for the Prevention of Torture – Mykola Hnatovsky

Last week, with the usual little or no Ukrainian media coverage, Mykola Hnatovsky, Associate Professor at Taras Shevchenko University, Kyiv, was voted into a 4 year role within the Council of Europe’s Committee for the Prevention of Torture.

He takes up the post of Second Vice President.

Together with Letif Huseynov of Belarus who was reelected as President and Marzena Kzel of Poland who assumes the role of First Vice President, these three now form the Committee’s Bureau.

The role of the Bureau – I will give it the full title, despite it being somewhat lengthy – Council of Europe, Committee for the Prevention of Torture and Inhumane or Degrading Treatment or Punishment, Committee Bureau, within Mr Hnatovsky now sits for the next 4 years – is to arrange and carry out visits to places of detention throughout Council of Europe geographical region, and assess how detainees are treated.

Indeed, some may be thinking there be more than a little irony in such a Committee Bureau being made up of persons from Belarus, Ukraine and Poland – then again quite possibly such a panel will have more than an “academic” insight into what they are supposed to oversee compared to others that could have been elected to such a Bureau.

Whether there is a trade-off when it comes to being from nations experiencing far more tangible examples that would fall within the Bureau’s remit, compared to other academic candidates of different nations when it comes to the necessary impartiality to hold such a role – then that is likely to be decided by the personal integrity of those successfully becoming Bureau members – and there is no reason to doubt their integrity.

So, despite the lack of media attention and fanfare – congratulations to Mykola Hnatovsky on his successful appointment to this committee on 7th March – One suspects though, that the business cards relating to his new role, if quoting his title and organisation in full, will be close to the size of a table mat.

Vereskiy and Vlasenko – Cause and (unintended?) effect

Cause and effect – Not something that really registers with many, if any, of the politicians in Ukraine.  Why would it?  The vast majority are in the RADA for no other reason than to defend and expand their own personal interests.  Others are hungry for power for power’s sake.

Examples of legislative initiatives or political actions for personal benefit, or revenge – one way or another – litter the history of the RADA.  There are high profile cases and there are low profile cases – but there are a lot of cases.

Now much is in the press about the removal of the Deputy mandate – and by extension immunity – of Serhey  Vlasenko, the high profile lawyer currently defending Ms Tymoshenko.  Even if this act is actually strictly within the parliamentary rules as is claimed, one has to ask why now?  Why was this not done earlier – a year or more ago?

Mr Vlasenko’s circumstances that have led to this action have not changed as far as his Deputy status and professional advocacy on behalf of Ms Tymoshenko are concerned since she was first pursued and in need of legal representation.  Whether or not you actually believe he is doing a good job or not on behalf of Ms Tymoshenko – and that is debatable – the reasons as stated for his sudden removal of Deputy mandate have existed ever since he decided to represent Ms Tymoshenko.

Politically motivated?

It would appear that at the same time Vlasenko was stripped of his Deputy mandate, so was a man called Andrey Vereskiy.

Andrey Vereskiy is a billionaire who created and sits on the board of Kernel Holdings.  His political career – and one suspects the reason Kernel did so very well – began just prior to the Orange Revolution.  After the Orange Revolution he joined Yulia Tymoshenko’s Batkivshchyna Party.  No doubt both his personal wealth and that of Kernel flourished under her patronage as Prime Minister.

However, as I have already written, many are in Ukrainian politics to defend and expand their personal interests – no more and no less.

Thus in June 2010, Vereskiy changed parties and joined the Party of Regions, the party currently in power after Ms Tymoshenko was defeated by now President Yanukovych.  Undoubtedly his personal wealth and that of Kernel continued to flourish.

And what has this to do with Vlasenko?

Well, at the behest and after official demands of Svoboda, the issue was forced relating to Vereskiy holding a Deputy’s mandate and also heading a commercial entity – in accordance with the parliamentary rules this, it appears, is not allowed.

Fair enough – The rules are the rules – However, if you are intent on removing a Party of Regions billionaire from the RADA via such rules, that cause naturally has an effect.

That effect being that because Vlasenko is practicing advocacy whilst remaining a Deputy, he too was subject to the very same complaint and procedure via the Party of Regions, that Svoboda instigated against Vereskiy.

Vereskiy had his Deputy’s mandate stripped from him 4 days ago, (5th March) in accordance with the parliamentary rules and Svoboda demands that they be adhered to.

Consequently, Vlasenko had his Deputy’s mandate stripped from him also – in accordance with the same rules and demands from Party of Regions on the same day.

Net effect – Svoboda force a point of principle, remove a one time  Batkivshchyna Party political turncoat and the Party of Regions lose a billionaire from their political RADA ranks – and also manage to get a  Batkivshchyna Party Deputy and Ms Tymoshenko’s high profile lawyer removed as a consequence of others enforcing the same principle and rules.

Not a bad result for Svoboda it has to be said, – after all they operate independently of the  Batkivshchyna Party despite both being amongst the opposition ranks – neither is it necessarily a bad result for those who want the entire cesspit that is the RADA to play by its own documented rules on a level playing field.

However, such is political expediency and media bias, we can expect very little mention of Vereskiy’s removal from the RADA, who instigated it and why it happened – or the effect that cause managed to create.  The stripping of Vlasenko’s Deputy status and immunity is likely to be all we will hear about with next to no mention of how it came about.

As the procedural cause and effect that resulted in both Vereskiy’s and Vlasenko’s Deputy mandate being removed are not a secret to anybody who closely follows the internal workings of the RADA – instead of simply being spoon-fed the headline news which concentrates on only one of them – it seems incredulous that some public figures outside of Ukraine are demanding explanations as to why Vlasenko has been subject to his mandate being stripped as if they are aware of nothing other than the headline news.

I am quite sure Andrey Vereskiy can explain in detail how the system and the rules that removed his Deputy status the same day as Serhey Vlasenko works – if Mr Jagland cares to lend an ear.

Maybe Mr Jagland would care to explain to Mr Vereskiy why such rules should only apply to him and not Mr Vlasenko – or if Mr Jagland’s statement applies to both, why he didn’t mention his concerns over Mr Vereskiy’s removal by naming him in his statement about the RADA as well – as diplomacy would dictate.

Is it fair to say that Svoboda’s actions were politically motivated to remove a turncoat MP in the form of Vereskiy – or were they fighting a point of principle?

If they were fighting a point of principle, then by extension that principle applies to all in breach of it – and that would include Vlasenko.  It will also include numerous others, so perhaps we will see a large number of procedural complaints to follow and even more current MPs having their mandates removed from majority and minority parties, plus a large number of independents alike.  Or perhaps we will see a changing of the rules that would allow both to be reinstated?

Whatever the case – if you pursue a cause, then be sure the effect is what you expected.  And maybe from Svoboda’s point of view, it has been.  After all, what does Svoboda gain from Ms Tymoshenko getting out?

Forgotten by the headline news – human rights meetings take place in Ukraine

Not mentioned in recent headlines in Ukraine, but probably far more important the President Yanukovych’s visit to Lithuania, the visit and departure of the Cox/Kwasniewski EU mission visit, and just as important as the Stephan Fule “drop by” visit of 7th January, was a meeting between Valerie Lutkovska, the Commissioner for Human Rights in Ukraine (or Ombudsman if you prefer) and Messrs Christos Dzhiakumopulosom and Marcus Huntsman of the Council of Europe.

This meeting was to coordinate, discuss and action the 2013 – 2017 protection of human rights strategic plan and evaluate results thus far.

It therefore caught my eye, that the Council of Europe was very interested in drawing the attention of Ms Lutkovska to the issue of personal data protection.

With all the human rights issues present in Ukraine, whether effective remedy is proscribed by law and simply ignored, or a reality as yet not addressed by the law, why was data protection specifically mentioned as an area that the CoE want the Ukrainian Ombudsman to pay particular attention to over and above the work of NGOs, the protection of minorities, the on-going Somali asylum issues, political prisoners (or not), the disabled, a malleable justice system etc ?

Is there any connection to the newly launched EU initiative to provide an “open, safe, secure cyberspace” protecting “fundamental rights, democracy and the rule of law” – launched the day after the CoE/Ukrainian Ombudsman’s meeting?  Ukraine, after all, is recognised as being “free” when it comes to political interference on the Internet by Freedom House.  Is it too free -  Is Article 10 consistently butchering Article 8 of the European Human Rights Act in the CoE’s opinion?  Are the on-line media, bloggers and criminals running amok in Ukraine via the Internet?

Is the concern more over the security of data – an issue that has delayed the biometric passports and thus one of the reasons Ukraine remains mired in Stage 1 of the Visa-free process with the EU, instead of sailing on into Stage 2?

Is the concern over the misuses of securely held data guarded by corruptible minions in the state administration?

Could it be that Ukrainian cyber defences are particularly poor in comparison with the very skilled hackers within this country (and without)?

Is it that current and  proposed Ukrainian data protection laws in some way discriminate against the population or parts of it?

Is it simply that any form of media being deemed “free” by Freedom House in Ukraine flags up the the CoE that the Ukrainian authorities are paying too little attention to the Internet and what goes on there generated in Ukraine?

Is it any or all of the above that has caused this issue to have a specific mention at this meeting given all the other human rights issues in Ukraine?

Interesting!

Ukrainian media and the rule of law – International Commentary

28th January was a bit of a strange day for Ukrainian media and the rule of law in the nation with regards to international commentary.

In what was an absolutely foregone ruling, Aleksie Pukash was quite rightly jailed for life for his part in the murder of Gregory Gongadze – something hailed as a “milestone toward justice” by the New York based Committee to Protect Journalists.

I have to say “milestone towards justice” seems a little overenthusiastic when it comes to metaphors, considering those who gave instruction to Pukash to carry out this heinous act remain free and were not implicated in the Pukash court ruling.  Plus, as I say, the verdict was never in doubt.

On the same day, the Parliamentary Assembly of the Council of Europe (PACE) issued its “State of Media Freedom in Europe” report in which there are significant issues concerning Russia, Turkey, Armenia, Azerbaijan, the UK, Bulgaria, Belarus, Greece, Hungary, Italy, Romania, Serbia, FYR Macedonia and of course Ukraine.

“Ukraine

82. Regarding the investigations of the murder in 2000 of Georgiy Gongadze, an investigative journalist
and founder of the Ukrainska Pravda (Ukraine Truth) website, the trial began in April 2011 against Olexiy
Pukach, a former Interior Ministry official, who had reportedly confessed to playing a direct part in the murder
of Gongadze. As journalists and other members of the public have been barred from the proceedings, the
Committee to Protect Journalists (CPJ) described the secrecy and irregularities in the Pukach trial and the
previous failures to deliver prompt and impartial justice as significant setbacks in the fight against impunity.
The CPJ reported that in 2011 journalists in Ukraine continued to face persistent danger from threats and
physical attacks, and suffered censorship.

83. In March 2010, Vasyl Demyaniv, the editor of independent newspaper Kolomoyiskiy Vestnyk, suffered
a fractured skull and knee injuries when he was attacked in a public street. Two defendants were convicted
and the motive was said to have been robbery, but Demyaniv stated that the two convicted men were
innocent and that he had been attacked in retaliation for critical reporting on local government issues.

84. The Institute of Mass Information, a Kiev-based media monitoring organisation, reported that at least
25 physical assaults took place against journalists because of their work during the period from 2010 to
2011. The IMI disputes a claim by the Interior Minister that the great majority of those attacks against
journalists are unrelated to their work. The IMI says that in at least ten cases the perpetrators were law
enforcement agents or other public officials.

85. In Ukraine, the presidential election of January and February 2010 was marred by blatantly partisan
coverage by various media favouring one or other of the two main rival candidates, Viktor Yanukovich and
Yulia Tymoshenko. TV channels allowed candidates to pay to appear and to place pre-recoded material on
news and current affairs programmes, undermining the principle of media independence and objectivity. The
ODIHR election observation mission noted that regional media consistently showed a bias in favour of the
regional party or parties in power in each case. ODIHR recommended that rules on coverage of government
ministers or others holding public office should forbid broadcasters from giving them privileged treatment in
coverage during campaign periods. It also called for the state National Television Company of Ukraine to be
transformed into a public service broadcaster. The government has initiated moves to do so and every effort
should be made to implement the proposal without delay and in line with Council of Europe standards on
impartiality and independence.“

Not much surprising in any of that – other than how little content there actually is relating to Ukraine.

Will any of what was written about Ukraine by the CPJ or PACE change the way media operates in Ukraine despite their encouragement?  Of course not.  What will change the way media operates in Ukraine is the split of the oligarchy from “the family” within the Party of Regions when it comes to media manipulation – at least for the time being.

As the 2015 presidential elections get closer, you have to foresee a situation where “the family” will be forced into the backseat once again in favour of the oligarchy media assets as fas as President Yanukovych is concerned – thus their inclusion back to the inner, inner circle is likely to begin in 2014.

Hopefully by that time, the oligarchy will have been left out in the cold slightly too long and will have  found a horse they prefer to back other than Yanukovych.

Time will tell.

Azerbaijan PACE debate and the consequences for Ukraine

No this blog is not going to change theme and become a Council of Europe/PACE watchers commentary, despite the entries of the past few days.  However with Ukraine holding the Chair of OSCE for 2013, I will obviously be commenting a little more on the occurrences of an international organisation that often seemingly runs in parallel to that currently chaired by Ukraine.

Thus, following along the recent entries relating to the Council of Europe/PACE and Ukraine, 2 days ago in what may have had significant implications for the Ukrainian opposition, civil society and media, PACE debated the situation in Azerbaijan (a situation decidedly worse than currently exists in Ukraine for opposition politicians, NGOs and media alike).

In short there were 2 reports being considered by PACE in relation to Azerbaijan.  The first (Doc 13084) to continue with the status quo of “monitoring” the situation and stress the requirements and obligations to the Council of Europe by Azerbaijan.  This was adopted (196 votes in favour, 13 against and 16 abstentions) and effectively continued the existing arrangements and dialogue without rocking the boat.

The second (Doc 13079 – No official link to unadopted text was found at the time of writing) which in summary related to actually doing something about State pressure and political prisoners within Azerbaijan.  This report was not adopted (70 votes in favour, against 125, abstentions 20) – despite I would add, some vigorous supportive lobbying by some of the Ukrainian opposition party members that are included in the Ukrainian PACE delegation.

MPs Oleksandr Shevchenko (Svoboda) and Pavlo Riabikin (UDAR) voted for the resolution. Batkivshchyna MP Volodymyr Ariev abstained, while other BYuT MPs, Serhiy Sobolev and Lesia Orobets, did not participate in the vote. Representatives of the Party of Regions and the Communist Party voted against the document.

It would be kindly of me to think that the Ukrainian opposition members within the Ukrainian PACE delegation felt they were acting purely in support of others they feel are politically repressed (if not more so) than they feel – and thus there was no ulterior motive for their support and very active lobbying  – but I know personally Ukrainian politicians from most parties including from within the opposition ranks, and thus I am not that generous of thought with regards to their motivation for anything they do regardless of their political affiliations.  Likewise it would kindly of me to think Mr Sobolev simply was unavoidably absent rather than thinking of his personal future prospects with Ms Tymoshenko remaining in jail.  Had the opposition won that last parliamentary elections, it is widely rumoured he would have been Prime Minister.

One can only presume that the opposition members of the Ukrainian delegation that sought to get the second report adopted less so for those affected in Azerbaijan, but in order to set a precedent there, that could then be argued for with regards to other nations and thus be rolled out – those nations including Ukraine – naturally – and ergo serving the interests of the opposition.

The reasons for those amongst the opposition that failed to vote in favour of this report seem only to have personal gain as a motive.

Those that tried to get the report adopted were quite right to try and seize the opportunity presented to them, but fell a very long way short of getting the report adopted.

Thus if PACE will not move on Azerbaijan when deliberating the adoption of reports over issues such as political prisoners, there is not much hope that it will do so in any meaningful way when it comes to Ukraine – other than “monitoring” – as in Azerbaijan.  A situation not helped by the leading opposition figures amongst the Ukrainian delegation!

One suspects that numerous sovereign national interests (and some personal ones) trumped values once again – for the time being at least.

Executing ECHR judgements

Following on from yesterday’s Council of Europe theme, we now have calls from PACE for a significant number of its members to create bodies to insure the execution of ECHR rulings.

Of those nations, 5 are EU nations and the others are not.  They are  Poland, Greece, Italy, Bulgaria, Romania, Russia, Turkey, Moldova and of course, Ukraine.

It appears that PACE is calling upon these nations to create an agency responsible for insuring ECHR rulings are executed, which is fine as far as it goes, however it can hardly be claimed that all ECHR rulings are executed (in a timely fashion or not) within all the other member states that are deemed to have suitable mechanisms to do so.

The last paragraph of the above link could be very interesting.

“The Council of Europe governments are also called on to “increase pressure and take firmer measures” in cases of dilatory and continuous non-compliance with the European Court’s judgments.”

Interesting insofar as “dilatory and continuous non-compliance” may have some rather unexpected offenders - or maybe not that unexpected actually.