Archive for November 1st, 2012

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Answering some readers question from the “So now what?” post – Elections and ECfHR

November 1, 2012

If I needed proof that people (bless you all) actually read what I write occasionally , aside from the website statistics and comments made, questions sent by readers is indeed such proof.

Relating to this post written a few days ago, I have been sent several questions, and most aimed at these two paragraphs:

“The next major highlighted date on the calendar where significant change is possible (but not probable) will be the ECfHR ruling over Ms Tymoshenko in which it is almost a nailed on certainty her release will be demanded. The caveat to that being the next major date depends upon whether the PoR/Communist coalition will manage to gather enough splitters from the opposition parties and independents to gain a constitution changing majority between now and 17th December when the new parliament sits for the first time.

If Tymoshenko is released, which may or may not happen, then EU/Ukraine relations may improve. There are definitely some within the PoR oligarchy and government (Khoroshkovskiy and Poroshenko to name but two) that will be happy to see her released to get the DCFTA and AA signed and ratified in return. In fact a number of the PoR oligarchy may look to remove Yanukovych and back others in 2015 if Tymoshenko is not released when the ECfHR ruling arrives.”

To answer the first question over whether the ruling coalition will reach a constitution changing majority in the RADA, then it is highly unlikely.  Although counting still continues at the time of writing this, if the Party of Regions does get 31% of the vote then that would equate to about 77 MPs from the party lists.

Add this to the constituency seats where the Party of Regions concentrated almost all their energy from the very beginning of the campaign, by fair means and foul, then I would anticipate about 115 MPs from their party getting elected via that route.

The guesstimated total thus far being 190, plus or minus a few seats.

Add to that the 13-14% of the vote from the Communist coalition party from the party list and we get to within a few seats plus or minus of a RADA majority – but there will be about 40 independent candidates who win constituency seats, my neighbour of whom is one, and he with many others is far more Party of Regions orientated than towards the  United Opposition – and thus there is a RADA majority for the ruling coalition.

However, in what can be seen as a victory of sorts for the opposition parties, united or otherwise, there will be no constitution changing majority – even if every independent sided with the ruling coalition – which they won’t.

Now to answer the more difficult question about the ECfHR ruling and Ms Tymoshenko’s release when it is eventually so ordered by the said court.

Here I will need to indulge in some “whataboutism” which I am never keen to do, but it does show the limits of the ECfHR and their rulings when it comes to sovereigns carrying out their rulings.  To be frank there are very few sovereign nations that do not have outstanding ECfHR rulings against them that are deliberately being allowed to gather dust, or are simply being met by outright refusal to implement the rulings.  Indeed a version of politically motivated selective justice to which hardly any EU nation has an unblemished record.

I will choose the UK for the “whataboutsim”, simply because that is my home nation.

The most prominent current stand-off between the UK and the ECfHR is that over prisoners voting rights.  (And prisoners voting is something which Ukraine allows and the UK doesn’t).  The ECfHR has ruled UK prisoners should have the right to vote.  The current UK government is refusing to adhere to that ruling.  A very basic democratic right being withheld by the UK despite the ECfHR ruling – rightly or wrongly – and obviously there are two very different robustly held views.

But that is not the only ECfHR ruling the UK is not implementing.  The UK currently has 24 ECfHR rulings that it has not implemented, some of which are quite old.

None of this has anything to do with Ukraine, until of course, the UK calls on Ukraine to implement Ms Tymoshenko’s release when it is eventually ordered by the ECfHR.  At that point we reach the inconsistent position of “Do as I say, not as I do”, and “whataboutism” when Ukraine highlights the failings of the UK in relation to ECfHR rulings.

There are very few nations within the EU that will be able to say “Do as I say because I have always adhered to the ECfHR rulings – and promptly.”

“Whataboutism” will be raised quite predictably by Ukraine if it decides not to release Ms Tymoshenko towards nations who themselves do not comply – despite the fact “whataboutism” is no defence for not carrying out your obligations even if others don’t.

This is an issue that of course does not go unnoticed, not only amongst governments themselves, but also civil society and society itself.

The Open Society organisation has just released a report, imaginatively titled “Perspectives of European Civil Society of the Interlaken Declaration and Action Plan:  Czech Republic, Hungary, Italy, Poland, Republic of Moldova, Russian Federation and Ukraine. – Catchy!

It’s target audience – the ECfHR – relating to its rulings and how and if they are carried out within the listed nations and suggestions about how to improve matters.

With regards to Ukraine, it has this to say:

“Systemic failure to Execute judgments:  Specific examples of Non-Execution

Ukraine. The Government’s record of executing judgments is spotty. For example, the Supreme Court of Ukraine initially failed to execute two decisions about fair trial rights, Shabelnik v Ukraine47 and Yaremenko v Ukraine, 48 and the CoM website on the execution of judgments indicates that it is still awaiting information on measures taken or planned to comply with these judgments.49 However, subsequent practice in the Ukraine relating to fair trial rights have improved significantly, and it appears that both the Supreme and High Courts now quash convictions that the ECHR has found to violate fair trial rights. Nevertheless, because the quashed cases have not been retried, it is difficult to assess the full impact.

State’s Persistent Inability to Remedy Structural Problems through Effective and Timely Execution of Pilot Judgments.

Ukraine. Positively, Ukrainian NGOs report that Ukrainian State agencies, especially the Ministry of Justice, prioritize the execution of pilot judgments. Additionally, Ukraine’s Office of Ombudsman is in the midst of reform intended to incorporate national prevention mechanisms.

Unavailability of Effective National Remedies.

Ukraine. The Constitution allows for any dispute to be brought before Ukrainian courts, which are obliged to adjudicate them. However, many remedies are unavailable or essentially ineffective. For example, prisoners, as a practical matter, are often unable to apply to a court or participate in hearings. Additionally, ECHR decisions have highlighted the ineffectiveness of some domestic Ukrainian remedies. For example, in Kaverzin v Ukraine, the ECHR identified significant shortcomings regarding prosecutors’ investigations into allegations of custodial torture by police in violation of Article 3.77 Thus, even if cases get to the courts, they yield flawed results.

Failure to Take Into Account ECHR Case Law

Ukraine. The official Government report indicates that ECHR judgments have become the basis of legislative amendments to the Code of Criminal Procedure, as well as other procedural codes and current legislation. However, NGOs note official inconsistency in ensuring legislative compliance with ECHR decisions, and complain that ECHR standards are frequently sacrificed for political expediency.

The “Law on Enforcement of Judgments and Application of the European Court of Human Rights Case-law” requires domestic courts to apply the Convention and ECHR case law when considering a case.81 The law also mandates the high courts of Ukraine to prepare summaries of ECHR case law for the lower courts. While the State report notes that “the Government Agent shall conduct an analysis of the Court’s case law,” NGOs want more, arguing that examples of domestic courts referring to ECHR judgments concerning other States are increasingly rare.

Failure to Establish Specific Domestic Structures or to Consult with Civil Societyto Implement the Interlaken Declaration.

Existing structures are, in many cases, ill-equipped to handle the continuous flow of ECHR-related tasks. Notwithstanding some improvements in Poland and Ukraine, overall the governmental entities that delegate the execution of judgments and implementation of standards to other existing bodies are too weak to properly supervise them. Furthermore, governments often omit Parliaments as key actors in implementation.

As crucial agents in national implementation of the Convention and of ECHR judgments,85 national parliaments should be involved in supervision of Interlaken implementation. Nonetheless, parliaments in the Czech Republic, Hungary, Italy, Russia and Ukraine have played, at best, a very limited role in national implementation.

Few of the States considered in this report have engaged actively with civil society as they implement Convention standards and ECHR judgments. Only one of the States addressed in this report, Ukraine, even responded to question 4 of the questionnaire about whether national authorities have held, or plan to hold, consultations with civil society on how to implement Interlaken effectively. Civil society affirms this exclusion. According to civil society reports, only two States, the Czech Republic and Poland, have consulted with NGOs about implementation. In Hungary, NGOs’ efforts to engage the Hungarian Ministry of Foreign Affairs by submitting a joint civil society declaration before the 2012 Brighton Conference were ignored.87 In Italy and Ukraine, the Governments have not engaged with civil society on Interlaken implementation.”

Now whilst all those statement stand alone quite robustly in and of themselves, I would suggest reading the report in its entirety for a wider perspective of how Ukraine fairs with neighbours East and West,  It is quite interesting.

Anyway, the question of whether Ms Tymoshenko will be released given Ukraine’s historical dealings of past judgments remains a mixed picture – and why I wrote that her release is far from guaranteed, but neither is her continued incarceration an absolute certainty either, even if more likely.

Neither does it take into account external and internal pressures, both direct from certain PoR oligarchs as well as opposition, plus the international community – and indirect through international agencies that are non-governmental but have distinct political elements to them with which Ukraine must interact.

So we will see what happens in a few months when the ECfHR eventually rules on Ms Tymoshenko just how Ukraine will respond.  Hopefully, it will fulfill its obligations – despite the failings of others.

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