It’s all in the timing – Yanukovych and Tymoshenko – Well comedy always is!

Comedy, they say, is all about timing.

So it seems is the farce of Ukrainian politics, although Ukrainian politics can often be used as an example of comedy, albeit it rather dark comedy.

As most people know, Ms Tymoshenko was jailed for abuse of office a few months ago, to serve a period of 7 years.

The EU, with whom Ukraine was about to close a significant political coup (for both sides) was rather miffed at her jailing.  Not because she was innocent, nobody within the EU has claimed she is innocent, but because of the seemingly flawed judicial process that reached the verdict  and a perception that the investigation was started for political reasons rather than purely lawful reasons in the first place.

Ms Tymoshenko vowed to appeal and duly did so.

On 21st December President Yanukovych’s the closing address for the year to the press, delivered only a few days after the EU/Ukrainian AA and DCFTA negotiations were finally agreed.

When talking about Ms Tymoshenko he stated  “I do not mind that Tymoshenko is released under certain conditions stipulated by law. Moreover, I would like this case to be completed as soon as possible. I’m interested as no one else. I want it to happen,” and went on to say  “I became a ‘hostage of this situation’ and when the Europeans came to us – Jose Manuel Barroso and Herman Van Rompuy, I said, if you know what is the way out of this situation, tell me, what is the practice, but the investigation cannot be stopped, legal proceedings cannot be stopped, they will be considered, and no one has the authority to influence them.”

If he has been the driving force behind what has happened to Ms Tymoshenko as she claims and indeed holds such sway over the courts decisions as she claims, then what he said may suggest that Ms Tymoshenko could be released very shortly given that her appeal is currently happening.

You would think that these words with an on-going appeal would be received fairly well by Ms Tymoshenko, or if not her, then her family and her supporters as well as the EU.

However, this news reaching Ms Tymoshenko evoked a response the following day that she was dropping her appeal against her conviction through the Ukrainian courts with immediate effect as she considered them a farce.  She was instead going to appeal to the European Court of Human Rights.

We are now faced with the comic situation where if the Court of Appeal continue to process her appeal despite her statement saying she has withdrawn it, she may be getting thrown out of jail against her will, whereas only a few months ago she was incarcerated against her will claiming persecution.

If the appeal is indeed stopped as per her wishes, one has to question the logic to her strategy.

Firstly, the Ukrainian judicial system has not had the opportunity to correct an alleged wrong which is the whole point of appeals courts in every nation.   Therefore should there be an eventual verdict by the ECHR in her favour, she can hardly condemn the Ukrainian judicial system when it was not given the procedural opportunity to correct an initial verdict.

An empirical glance at ECHR cases shows that most arrive after a failed appeal through a national appeals court system.

As variation from due process is the foundation of much of the EU’s criticism for her fate, she is now abandoning normal due process and kicking to the side the appeal court system that exists.  Is that necessarily wise?

If the ECHR makes comment in the wording of her eventual case, whilst it may well criticise the due process in the initial trial, it is sure to note that the nation of Ukraine was not provided the opportunity to correct that decision through her own actions via the national appeals system.  That can only weaken any accusations she will undoubtedly make regarding the rule of law in Ukraine.

The next issue is that the ECHR has thousands of pending cases and a very large backlog.  Can preferential treatment to her case be fast-tracked in all good conscience over and above those who are already slowly plodding through the ECHR system?

If everyone is equal before the law, then her human rights take no precedence in the waiting list and timeliness of hearings than any other applicant and pending case at the ECHR.  Bumping her up the list simply because she is a political figure seems morally wrong.  Her human rights matter no more and no less than a placard waving protester from Minsk or the enforced family separation of a foreign spouse barred from living in the UK because they don’t speak English.

If she is to be treated equally by the ECHR establishment as far as other cases go, it will be at least a year or two before her case is heard.  During this time she may as well allow the Ukrainian appeals system to go through its motions, farcical or otherwise.

It also leaves the EU in something of a political dilemma.  Now she has abandoned her appeal, how can she be released legally by Ukraine?  The current government cannot be held responsible for her decision and yet she cannot take part in the October 2012 elections as is desired by the EU if she has abandoned the most timely route to release.  The president cannot pardon her as protocol dictates the pardon must be asked for and Ms Tymoshenko would never allow herself to ask for a pardon from her self proclaimed nemesis.

If the political strategy is to try and embarrass the President with an ECHR ruling it is muted somewhat by failing to exhaust appeals system in Ukraine.  If the strategy relating to the elections in October 2012 is to have them ruled less than free by the international community because she did not take part as a result of refusing to continual her appeal that may very well have led to her release (looking at the inference in the words of President Yanukovych and crediting him with the power to influence a court of appeal decision) there is a serious chance of this strategy backfiring.

Politics, farce, comedy? – You decide!

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Update:  At 1400 Ukraine time on 23/12 the Ukrainian Appeal Court upheld the original conviction of Ms Tymoshenko despite her dropping it the day before.  -  So it’s off to the ECHR –  We will not see how equal her human rights are compared to others in the system.  Fast-track, or lengthy delay like everybody else?

Naked naivety or political statement?

Naked naivety?

Now here is the tale of Olexandr Volodarsky, Ukrainian blogger and “political activist”.

Before we wander into the details of the case, which of you dear readers, would deem it acceptable for a man and woman to appear completely naked directly outside the Houses of Parliament, the White House or Capital Hill and then simulate sex acts?

If we were of the mind to carry out such actions, would we reasonably expect to get arrested, charged and appear in court as a result of simulating sex, naked, directly outside the seats of our political establishments or would we expect no action from the law?

Well, naked simulated sexual acts directly outside the RADA in central Kyiv and in broad daylight is exactly what Mr Volodarsky, and a female accomplice,  carried out in a political protest to determine where morals reach the point of criminality in 2009.

Seemingly, Mr Volodarsky did not think prosecutors would charge him as it was a “victim-less crime”.   “I didn’t destroy property, I didn’t hit anyone, I was convicted for committing a victim-less crime, which can’t be considered hooliganism.”

Really?

Whilst it is often folly to compare laws of sovereign nations, there is generally a parity amongst them despite the specific words used.

Now those of us from the UK would fully expect him to have been arrested, to have been charged and to have appeared in court whether the charges were indecent exposure or Section 5 of the Public Order Act, an Act as a whole that deals, generally, with “hooliganism”.

In fact, Section 5 of the UK PoA covers pretty much anything that would alarm, harass or distress anybody witnessing it whether it is carried out in public or can be viewed by somebody in a public place even if the actual act is carried out in/on private property.  A general rule of thumb would be if your granny can see it, and is your granny would find it distasteful in any shape or form, then it is quite likely to be a crime under Section 5 of the PoA.

Would your granny find this acceptable?

The fact that your granny may not witness it is quite irrelevant, the point is she could as it was committed in a public place or could be viewed from a public place.  As such it can be a victim-less crime in the UK as well and still result in arrest, charge and legal recourse.   The victim, as such, can be society in general and the morals and ethics it accepts to be guided by as a majority.

As a result of his misguided idealism and will to test the boundaries, Mr Volodarsky spend over 6 months in jail and is now appealing to the ECHR for wrongful imprisonment and is being backed by NGO’s such as Stop Censorship and Ukrainian journalists who are saying “Whatever the aesthetic value of the performance against the Verkhovna Rada, this is not a matter for deprivation of liberty… this cannot be grounds for criminal prosecution.”

I am quietly confident that the ECHR will not allow his appeal.  I would also suggest that, on the assumption (dangerous ground to make assumptions) that part of the Ukrainian “Hooliganism” laws would move on a sliding scale similar to the UK Public Order Act (and completely discounting the Indecent Exposure and Gross Indecency laws of the UK which he would most certainly have been in breach of) that his actions are nothing but naive to be generous to him.

I would also be quite amazed if there is a nation on the continent of Europe that would not have a law to prevent its citizens copulating, or pretending to do so, naked in a public place (regardless of whether it is directly outside the building housing the nations legislators and politicians).  I feel the NGO “Stop Censorship” is rather demeaning its own position when there are far bigger and better battles to fight in Ukraine.

Whether this naive act justified a 6 month jail term rather than a fine is a matter for a judge in any nation.  Some courts in the UK would take a far dimmer view than others should this matter go before them.  If the ECHR are to rule in his favour in any shape or form (and I doubt they will) it will be over excessive punishment rather than being convicted of a non-existent crime.

That said, again using the UK legislation as a rough guide, the penalties for offences under Section 5 PoA are a fine of GDP 1000, Indecent Exposure can be 2 years imprisonment.  If this incident had occurred in the UK, he would most definitely be guilty of either/or both offences depending on which way the CPS wanted to pursue the matter.

Much will depend on the devil in the detail of the Ukrainian “Hooliganism” legal framework of course, however you cannot see how there is no law preventing such….ahem…active exhibitionism?

Maybe, if he loses his ECHR appeal, he should strip naked and pretend to have sex with a naked woman on the steps of the ECHR court in Strasbourg……and see what happens next.