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Corruption, jurisdiction, and stopgap roles to European public figures

September 19, 2016

With the cleaners still clearing up after the YES Conference in Kyiv, and the Davos Conference in Kyiv on-going, a reader may be forgiven for missing the fact that Denmark has been appointed “point man” for the EU with regard to implementing a 3 year anti-corruption programme worth €16 million.

The Danish Foreign Minister Kristian Jensen, and the Danish Ambassador to Ukraine will have a difficult task when it comes to achieving any benchmarks (whatever the benchmarks are) relating to this programme and accounting for any successes or failures.

Indeed the Danish FM is on record sharing a very dim view regarding the retarded attempts by the Ukrainian political class to neuter the legislation it passed regarding e-declarations – “We fully share the view of the anti-corruption committee – there should be no changes made to the law.  Commissioner Hahn and I raised that in our meetings with Prime Minister Volodomyr Groisman.  Delays have already left a bad impression. No-one should forget that the EU is watching carefully as the final decisions are taken on visa liberalisation.

Anti-corruption activists however, perhaps naturally, expect more than robust rhetoric and diplomatic pressure and are advocating joint prosecutor teams for joint jurisdiction cases.

It has to be said that in the diplomatic and political circles there is indeed discussion over some European judges taking a role in any specialised anti-corruption court if and when one appears in Ukraine.  Quite how that will sit within existing Ukrainian legislation is unclear, or indeed how it would sit constitutionally too.

There are also issues over joint jurisdiction, what it actually means, and how it would fit within any Ukrainian legislation and/or the Constitution.  Lest it be forgotten the ratification of the Rome Statute – an instrument relating to the ICC – was long delayed (and was this year postponed for 3 years when it should therefore enter into effect in accordance with Ukraine’s EU Association Agreement obligations after Constitution changes).

It should be noted that the ICC jurisdiction is complimentary to national courts –  and even that complimentary status was a constitution hurdle – yet there are far less political (and perhaps socially) prickly issues than that of joint jurisdiction that is concurrent .  An issue perhaps irritated further by whether a State adopts a monoist or dualist approach to regional or international law.

None of that should prevent prosecutors and investigators working together of course, the issue will be at which court due process occurs and arguments over where any criminal act was actually committed.  Neither do such jurisdictional issues prevent any EU nation from enforcing its own laws (which they all seem to do with the Ukrainian elite far, far more often than not) regardless of Ukraine failing to enforce its own .

Whatever the case and the issues of joint jurisdiction, or indeed any agreed (or not) definition of corruption aside, as EU “point man” Denmark will be implementing a pilot anti-corruption programme in 2 regions of Ukraine – it is to be hoped that some irreversible headway is made.

Perhaps nailing and jailing the regional elites will be far more efficient than the attempts to do the same with the national elites which clearly remains a major problem.  “Family Yanukovych” may not longer be on a corruption, coercive, corporate raiding blitzkrieg, carpet bombing and plundering the nation of any State and/or private asset that took their eye, but a slightly more subtle “sniper-fire” of more targeted plundering and raiding still actively continues.

Only today was the blog approached asking if there were any names of European public figures it was in contact with that could sit as executive or non-executive directors on corporate boards where their presence may then keep “Mr Kononenko and Co” (their phrase) from acquiring them against their will (now or in the future).

board-member-vacancy-graphic

So, for the likes of Carl Bild, Lady Ashton, Stefan Fule, John Herbst et al., there is still a job they can do for Ukraine by actively assisting in the fight against corruption/coercive corporate raiding.

There are Ukrainian firms that would appreciate such personalities accepting positions on their boards for no other reason than in the hope that such public profiles can be sufficient to dissuade the current wolves.  Executive and non-executive roles are waiting for such specific personal qualities only such a cadre can offer.  There is clearly a demand and there is a very practical role that can be played which will not interfere with the richly deserved lecture circuit/punditry/think-tank leadership/consultancies and the rewards they give.  It is not the “offensive” (ability to open doors, insightful comment, strategic awareness etc) perceptions that come with such names, but the “defensive/preventative” capabilities that come with them name that are sought.

It is of course a stopgap solution being sought by some in Ukraine to the continuing failure of the current elite to get a firm grasp on the rule of law.  Hopefully The Kingdom of Denmark will implement a trail-blazing anti-corruption programme that is spectacularly successful and swiftly repeated throughout all regions, but as  innumerable European diplomats and bureaucrats have said ad infinitum, when it comes to removing corrupt leaders in Ukraine, then “Ukraine has to own the process” (read “do it”).  As that is not going to happen at the very top, in the meantime a few emails to a few “European public figures” have to be written.

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