Archive for July, 2018

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An SBI update (keep your expectations low)

July 18, 2018

Throughout the autumn of 2017, the blog plotted the predictable and deliberately slow progress relating to the creation of the creation of the State Bureau of Investigations – a process timed to insure that it would not be fully functional and productive before the elections of 2019.

18th July 2018 witnessed that latest progress (as glacial as it may be) toward establishing the leadership of the SBI under the guidance of the Director, Roman Tryb.  For all intent and purpose, Mr Tryb since his appointment has been an Emperor without Empire or legion.

A list of 27 potential SBI leaders/senior managers was announced, of which, to employ a system of traffic lights, has some fairly wholesome “green light” names, a few “amber” questionable/dubious names, and naturally several unquestionably “red” entirely unsuitable and unsavory names.

Something expected of course as any independent appointment process in Ukraine remains subject to a degree of manipulation and disfiguring via vested interests.

Obviously public interest and ire will be vented toward even the possibility of the “red light” names – such as Messrs Dmitry Rudenko and Yehven Ablov, regardless of the number of “green light” names.

As far as Odessa related nominees is concerned, it is fair to say the light is perhaps “Amber”, for Oleh Denga who has made the cut.  Mr Denga is widely perceived to be uncomfortably close to (read a creature of) Olexandr Granovsky, President Poroshenko’s curator and puppeteer of judges, prosecutors and “outcomes”.

That said, when it comes to Odessa and those related, some who were on the selection committee were perhaps of equally questionable integrity – or worse (Eugene Dade).

What matters of course is whether there is (perhaps even the slightest) confidence of the Ukrainian constituency in the SBI going forward.

The Ukrainian constituency is by nurture (if not nature) exceptionally cynical and skeptical.  This skepticism and cynicism naturally increased when the political timetable was clearly setting the speed at which the SBI would become fully functional and effective.  (More or less impotent until elections are over).

Further magnification of that skepticism and cynicism will occur when looking at the “amber” and “red light” names that have managed to defy supposed checks and disqualification thresholds.

That distrust will still further intensify should those names be appointed.

The appointment of Mr Tryb as head of the SBI agency (whether spurious or otherwise) when it was announced was widely perceived to be a compromise, and thus compromised, appointment.  That certain names remain in the running now, is not likely to do anything but harm to the SBI before it even goes in to bat by way of societal perception.

It would appear that an uphill struggle with public perception (as (almost) all Ukrainian institutions have) could very well be a mountain that will not be overcome in the short or perhaps medium term.  The SBI will be a “results judged” institution – meaning successful convictions rather than arrests, investigations or charges raised.

In the immediate future however, all eyes will be on the appointments soon to be made and who gets what – or not (and why not).

Ultimately however, it will be down to the SBI to display an integrity that will confound public expectations and actually deliver a step forward – albeit that already appears to be about as realistic as the farce that became known as “judicial reform” meant to deliver an “independent judiciary”.

As always, a wise reader will keep their expectations low – and hope to be surprised.

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Not such a Turkish Delight in Odessa

July 17, 2018

It is no secret that foreign agencies work in Odessa Oblast.

The most obvious that would come to mind is that of the Russian Federation, but as a reader moves closer to Europe then the Romanian SIE is active, as is Mossad, and of course Turkey across the Black Sea also has a great interest in Odessa too.

To be fair there are numerous agencies active in Odessa as a reader would expect from a city that is a transport hub on internationally recognised trading routes (as well as internationally recognised smuggling routes – be it people, guns, drugs and counterfeit).

Odessa is a destination, it is a hub and it is a source of legitimate and criminal trade.  It is cosmopolitan and it is mercantile.

What self-respecting foreign agency with particular regional interests wouldn’t be active in Odessa?

Most go about their work quietly – albeit perhaps not as invisibly as they might think.

However, it appears that Turkey recently made some rather obvious and perhaps illicit renditions of two of its citizens.

If true this would not be the first time Turkey (or other agencies – Mossad allegedly spirited away a Turk with Islamic links from Odessa train station some years ago) has tried and/or succeeded in renditioning their citizens from Odessa back to Turkey.

In 2008 several Kurds were either successfully renditioned or attempts were made by Turkey to “reclaim them” against their will.

The latest incidents allegedly occurred on 12th and 15th July 2018 – the first in Odessa and the second in Mykolaiv.

It is claimed that both individuals were FETO supporters (Gullist).   That may or may not be the case, for rumours are rumours and who starts them and for what reason requires some thought.

Either way extrajudicial renditions are just that regardless.

On 12th July it is claimed that the Turkish Milli İstihbarat Teşkilatı (MIT) abducted Turkish businessman Salikh Zeki Yigit from his restaurant in Odessa city centre, held him at the Turkish Consulate in Odessa overnight, and the following day spirited him back to Turkey (by plane to Istanbul and then on to Mersin).

The second individual was a Turkish blogger (married to, and father of Ukrainians) Yusuf Inan in Mykolaiv.   Mr Inan was apparently subject to extradition proceedings, but it appears that the MIT could not wait.

Both men had residency status in Ukraine.  Both were renditioned to Turkey during the last week if some very solid rumour be believed.

Whether a tacit blind eye was turned or whether the matter will be raised privately having drawn Ukrainian ire is speculative – particularly in light of recent Turkish statements thanking Ukraine for its “cooperation” regarding the return of “refugees”.

What is not speculative at the time of writing is that there has thus far been no public statement from any Ukrainian institution or ministry – either to confirm or deny either incident.

Would a reader therefore draw inference that if these illegal renditions took place (and it appears that they have), in the absence of any official comment whatsoever, that Kyiv was aware?

The answer has to be – probably.

If so, and of course there is plausible deniability, it will be something of a human rights image problem at the very least in numerous private diplomatic conversations – albeit insufficient to cause any significant policy changes toward Ukraine (or Turkey).  No doubt the Human Rights NGOs that read the blog (and there are certainly some in Brussels that do) will take note.

Whether there are any more Turks in Ukraine on the MIT rendition list – time will perhaps tell, and perhaps fairly soon.

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Bastille Day – Ukraine buys 55 Airbus (French) helicopters

July 14, 2018

As the citizens of France celebrate lopping off the heads of their aristocracy, with no doubt Bastille Day celebrations continuing into Sunday for the World Cup final, the 14th July also witnessed Ukraine sign a contract with France to purchase 55 helicopters for the Ministry of Interior.

The deal was witnessed by Prime Minister Groisman, Interior Minister Avakov and French Ambassador to Ukraine Isabel Dumont, with the contract being signed by Gennady Balla, the Director of Horev Avia (a State owned enterprise) and Bruno Even, the General Manager of Airbus Helicopters.

We sign the agreement on the Day of the National Holiday of France and I am convinced that our relations will have even brighter prospects, and today we are finalizing the enormous work that the leaders of the Ministry of Internal Affairs, first of all Minister Arsen Avakov and French partners, conducted. This contract makes it possible to use 55 helicopters to ensure the safety of our citizens, an unprecedented volume, and it opens up new opportunities for cooperation.” stated Prime Minister Groisman – with a quip (that was intended to be anything but) that perhaps Airbus Helicopters should consider opening a regional maintenance hub in Ukraine, and that Ukraine should be considered for the French aviation supply chain more broadly

While the exact contractual details wherein lies the devil are not yet fully in the public realm, the cost of the contract is Euro 555 million.  The helicopters to be supplied are 21 x H225a, 10 x H145s and 24 x H125s.  The purchase price includes the helicopters, pilot training, maintenance training, and tech support.  Further the deal would appear to be financed to a large degree by a combination of French banks and French State medium term loans.

The first 4 H225s are expected to be delivered before year end 2018.

What is not clear is what on-board tech will also be transferred as part of the price – and the helicopters will have different uses dependent upon their role within the MIA – Borders, civil defence missions, policing etc – all may have slightly different tech fit-out requirements.

Nevertheless the deal is done.  Presumably thereafter, everybody went off to the French embassy to celebrate Bastille Day – although perhaps not to eat cake all things considered.

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More haste, less speed – Draft Law 6688 update

July 10, 2018

A few days ago an entry appeared expressing concern regarding some very woolly draft legislative text relating to the ability of the SBU,prosecutors or investigators to block/shut down/ban websites for 48 hours without any judicial involvement, and that therefore appeared prime for abuse – “aimed at infringing public safety; intimidating the population;  provoking military conflict, international difficulties; influencing decision-making, the carrying out of actions or inaction of public authorities or local self-government bodies by officials of those bodies, civic associations, legal entities to attract public attention to the specific political, religious or other views of the perpetrator

As the entry linked above stated, not only might this draft prose rub uncomfortably against the fundamental right to freedom of expression granted by the Constitution of Ukraine, it could also very easily have a fractious relationship with Ukraine’s international obligations per Article 10 of the European Human Rights Act.

Potential problems in giving SBU officers, prosecutors and investigators the ability to ban websites for 48 hours without a judicial input are surely more easily resolved by having a 24/7 “on call” system for judges whereby there is always one on call and available if the closing/banning/blocking of a website is so desperately urgent.

No doubt Vice Prime Minister for European Integration Ivanna Klympush-Tsintsadze is tired of reiterating to Ukrainian legislators, that new legislation should consider European norms when they are written.  The blog knows for a fact it is a drum she repeatedly beats – and it is a drum that often goes unheard.

One of the major questions posed in the previous related entry was why all of a suddenly a draft law submitted a year ago has suddenly found great momentum – particularly when there are such obvious areas that require some attention.

Whatever the haste, there now appears to be less speed – and rightly so.

One of the authors of Draft Law 6688 has stated that the text relating to the ability to ban websites for 48 hours without any judicial input will be removed.

Further, and no doubt Ms Klympush-Tsintsadze will be pleased, the authors have decided to seek and involve experts in matters cyber from the OSCE, EU and NATO – for clearly a number of cyber matters are a national security issue.  It must be hoped that some very woolly prose with a clear ability to be misued will also be revisited.

It still remains unclear as to the mens rea behind forcing this draft law to the top of the Verkhovna Rada agenda after a year sat gathering dust since it was submitted.  Nevertheless, this move toward more haste and less speed is a wiser course of action.

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A disagreeable entry – Ukraine and the Trump-Putin tete a tete

July 9, 2018

Having had a few emails asking about thoughts and outcomes of the Trump-Putin meeting and the implications for Ukraine, the blog despite better judgment will surrender and write a few lines – as disagreeable as writing those few lines actually is.

Disagreeable why?  Because there is no foreseeing what oratory will spew forth post-meeting other than an expectancy of headline grabbing no matter how hollow or ill-judged that oratory (and accompanying tweets) will be.

Further there is no foretelling what will be said between the two men privately.

What can be foretold is that President Putin will be far more prepared, far more disciplined and far more devious/manipulative than his US counterpart.

It therefore follows that the question will be what outcomes The Kremlin desires and how it will go about getting them from President Trump.

In among all of that, what of Ukraine?

It is very difficult to see many deliverables from the meeting for either president – but it is unlikely President Putin is expecting any meaningful deliverables to be announced.  Such things are usually thrashed out and prepared in advance – and that is probably quite difficult with two president’s that think in zero sum, winner and losers, terms.

Perhaps a publicly shared concern (that may or may not come to fruition) over arms races, nuclear proliferation, a commitment to beginning negotiations on missile treaties, international terrorism etc.  Rhetorical froth that can be lost as time passes and new headlines are created.

There are unlikely to be any genuine expectations among the wiser heads within The Kremlin that immediate sanctions relief, the recognition of Crimea as part of the Russian Federation or similar will be forthcoming, as those wiser heads within The Kremlin would ponder whether it could be delivered by President Trump when there is Congress and The Senate to contend with.  Are there any gains to be had in putting President Trump, or allowing President Trump to put himself, in a position where he is seen not to be able to deliver?

How would it make President Putin appear to be seen to have put trust in somebody that could not deliver?  Is it worth going there, and even if it is, is the right time to do so now?

Therefore on balance, President Putin is probably unlikely to manipulate President Trump into committing to things he knows he can’t deliver.  That time is probably not yet ripe when other opportunities can be engineered to do so with more tempting “dangles”.

Although there are always deals to be done within diplomacy (if they can be identified), President Trump’s tete a tetes with less than democratic leaders have thus far been little more than theatre.  Unfortunately it is the sort of theatre that seems to result in a loss of trust every time the curtain comes down and the actors prepare for the next headline-grabbing Act.

However, there may be something to be gained by The Kremlin in offering up some small symbolic, and generally meaningless concession with a view to continuing a public dialog with the US at the highest levels.  A political “dangle” of the sort that whatever the outcome of the symbolic sacrifice offered by The Kremlin, the aim of that high level political process would be to further the Kremlin designs in aggravating the increasingly obvious schisms between the US President and his European political peers.

In short, a well prepared President Putin will probably use this meeting not to realistically try and gain major concessions to the benefit of Russia, for there is little hope of that from this meeting, but rather to insure that President Trump is manipulated into saying and acting in ways will continue to severely irk the Europeans.  After all he only needs encouragement to follow his existing path and if a few new irritating topics can be added where possible, so much the better from a Kremlin perspective.

Quite what the US, or perhaps simply President Trump expects to gain from this meeting with President Putin remains somewhat unclear – beyond headlines and a twitter storm.  Realistically however, all things considered, the wiser heads in The Kremlin will not be seeking significant relief for Russia, but rather increased pain for Europe.

On that layer of the game, Ukraine is becomes a “means”/Kremlin tool rather than a Kremlin “end”/goal, whereby whatever agency Ukraine has (and Ukraine certainly has agency) when it is used and a “means” and not seen as an “end”, that agency becomes far more constrained.

Make no mistake, Ukraine remains a Kremlin goal – perhaps the most important of goals – but it is also a means (one of several to be fair) of generating further strife between President Trump and his European peers – if President Putin gets it right a few days from today.

A most disagreeable entry to write – as it is almost entirely pure speculation.  In fact it may prove to be the biggest serving of flapdoodle ever served up in the decade this blog has been in existence.  Or it may not.

Whatever the case, the sky will not fall in due to this meeting – but the storm clouds many very well darken considerably.

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What’s going on at Naftogaz? Is that the smell of gas or politics?

July 8, 2018

Just over a year ago an entry appeared regarding political weight gains and political weight losses – both actual and future.

Among those deemed by the blog to have gained political weight was Andrei Kobolev, head of Naftogaz Ukraine – “Most recently if there are now three individuals that have definitely gained political weight over the past year, should Andrei Kobolev’s apparent victories over Gazprom in Stockholm can be turned into sustainable political capital he would be the third.  To be blunt there is no reason why that newly found political weight cannot be sustained.  Long associated with Arseny Yatseniuk and a protégé of Didenko and Vitrenko he is hardly new to the game despite his recently highlighted profile.”

Since then, Naftogaz has become profitable and has also won lawsuits against Gazprom at the Stockholm Arbitration Courts under Mr Kobolev’s leadership.  Further he has made occasional and well timed public noises regarding issues that are preventing Naftogaz Ukraine from meeting the requirements of the EU Third Energy package – statements that did him little harm in European quarters to be sure.

Mr Kobolev has taken care to insure that he portrays an image that he is “nobody’s man” – an independent trying to do what he has been tasked to do, if only the politicians would allow him to do so.  He has done it fairly well too.

However, for reasons that are unclear, it would appear that Mr Kobolev is now getting in the way of presidential political will – and prima facie, unless Mr Kobolev has good (if somewhat unclear) cause, President Poroshenko is in the right and Mr Kobolev/Naftogaz Ukraine is in the wrong.

The issue at hand is the Ukrainian gas market and domestic a decision to abandon the system of monthly gas purchases and introduce a “daily balancing” system as long employed across Europe.  In very simplified terms, the system of buying gas for a month from one supplier is replaced by buying gas on a daily basis – thus providing for market forces and diversification every day.  Theoretically such daily competition among numerous potential suppliers will influence the purchase pricing – downwards (market trends allowing).

The rules for the “daily balancing” system were adopted by the National Commission for Energy Regulation and Utilities (NKERU) in the Spring of 2015, following the adoption of the “Natural Gas Market” law.

Ukrtransgaz, a subsidiary of Naftogaz has for 3 years delayed the move from monthly purchases to daily balancing – for obviously Ukrtransgaz benefits from the old system and “understandings”.

Meanwhile the President (and thus his party) is now pushing for the adoption of the “daily balancing” system to begin henceforth.

Now President Poroshenko is no political fool, he picks his fights carefully if it is he that starts them.  He also chooses the method of message delivery – be the blunt, direct, subtle or deniable – with equal care.  Therefore going head to head with Mr Kobolev now, when Mr Kobolev is seen as the slayer of Ms Tymoshenko’s truly disastrous 2009 gas deal with Mr Putin, is perhaps a curious decision.

Indeed the recent political salvo fired at Mr Kobolev and Naftogaz has seen the trigger pulled by Oksana Krivenko, the new head of the NKERU – who is widely understood to be a creature of President Poroshenko.

Ms Krivenko stated recently – “The answer to the question of when the information platform for day to day balancing will work, Ukrtransgaz should provide.  We are concerned about this question but have not received an adequate reply from Ukrtransgaz.

Further Ukrtranzgas has blocked access to the system for all customers of the services, and has blocked the work on the implementation of the system.  Employees of Ukrtransgaz are actually looking for far-fetched reasons for blocking the work of the IT system, and in our opinion as a consequence, are blocking the introduction of daily balancing.”

Ms Krivenko went on to insist that the system be operating by 1st August – and to be fair, it’s been more than two years since this law was passed and the IT issues have certainly been solved for decades in Europe where the system of daily balancing has been working that long.  Thus it is not a cutting edge technology/algorithm problem.

Indeed the fairly influential European Business Association in Ukraine has long since appealed to Prime Minister Groisman to deal with the delayed implementation/Ukrtransgaz stalling.

Yet another appeal to him is currently being penned by the EBA (some of whose members either directly or indirectly benefit from an immediate move to daily balancing).

President Poroshenko may wish to keep the EBA happy – but the EBA as an association does not get to vote for the president (even if many employees do), and there are surely far more subtle and less publicly barbed methods of message delivery to Mr Kobolev if wanting to keep him on side to repeatedly torpedo Ms Tymoshenko over gas on prime time TV during electioneering.

The standard question of “who benefits?” need be asked.

Does President Poroshenko see a need to put Mr Kobolev on a political weight-loss programme and quell any political desires he may have?

If so, is that so important that it trumps any desire to wheel Mr Kobolev out before the Ukrainian constituency and have him remind all voters just what a catastrophe the Tymoshenko gas deal was?

Has Mr Kobolev refused, or intimated he won’t play that game?

Is Mr Kobolev playing his own game – and one that will further damage a presidential reelection bid by Petro Poroshenko?

Are those within, or close to Ukrtranzgas who benefit from the old monthly purchase arrangement and/or “understandings”, financing political opposition to the current presidential incumbent (read Dmitry Firtash) – and if so has Mr Kobolev naively been caught in a political game, or is he tacitly supporting the opposition?

Mr Kobolev hardly gives the impression of being naive, but whatever the political mens rea of President Poroshenko in picking this fight publicly, he is on the right side of the argument – both legally and by way of market reform.

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A suspicious haste? Draft Law 6688 (and the Ukrainian Internet)

July 5, 2018

Almost exactly one year ago, Draft Bill 6688 was submitted to the Verkhovna Rada.

It gained the immediate ire of media, sections of civil society, and perhaps most notably the then Ombudsman for Human Rights in Ukraine, Valerie Lutskovska (who was a pretty good HR Ombudsman).

Recently another attempt to get this Draft Law onto the Verkhovna Rada agenda occurred – and failed, gathering insufficient votes.

However, there appears to be a sudden sense of urgency from somewhere on high to get this Bill from Draft to statute book.

Yet another vote managed to garner sufficient votes to have the Draft Bill placed on the current Verkhovna Rada legislative agenda, and prompted the Verkhovna Rada National Security and Defence Committee (headed by the truly odious Sergei Pashinsky) to forward it to the Verkhovna Rada chamber for a vote without any discussion within the Committee.

So what is Draft Bill 6688 about?  It is named “On Amendments to Certain Legislative Acts of Ukraine on Addressing National Security Threats in the Information Sphere.”

Thus it seeks to amend numerous existing laws (including some that will no longer exist and are repealed by the “On National Security” Law signed by President Poroshenko on 5th July).  The Draft Bill, when roughly translated into English by the blog, is 15 pages long.  (Depending upon font size of course.)

In short, Internet censorship – or less provocatively framed, the ability of the State, via the SBU, prosecutors, investigators and judiciary to temporarily (or “temporarily”) close down/ban access to websites.

Much of the legislative amendments are mundane, adding “cyber”, or “cyber security”, or cyber crime”, or “cyber threat”, or “cyber attacks” to existing statute – and rightly so.

Skipping past proposed amendments to the Law on the SBU, which will be rewritten over the next six months anyway, there is also draft text that adds, or expands, in some cases in very elastic terms, the abilities for blocking of websites, in some cases without judicial process.  The “Law on Telecommunications” sees some serious additions to existing text.  The Criminal Code of Ukraine too – and by extension the Criminal Procedures Code.

There are other existing legislative acts mentioned, but this is a blog entry that paints in broad brushstrokes.

The Draft Bill is broadly aimed at cyber crime and cyber terrorism – and the State has a duty in this regard.

However some of the text appears somewhat too elastic to be comfortable with – for example “aimed at infringing public safety; intimidating the population;  provoking military conflict, international difficulties; influencing decision-making, the carrying out of actions or inaction of public authorities or local self-government bodies by officials of those bodies, civic associations, legal entities to attract public attention to the specific political, religious or other views of the perpetrator” leaps at a reader of the Draft Bill.

Ukraine has obligations under the European Human Rights Act – Article 10 states “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

As such particular care would have to be taken when enacting these amendments (should they become law – and somebody is pushing it to the top of the Verkhovna Rada agenda) on the one hand, and adhering to, and being able to justify any decisions made there under, before an ECHR court should appeals be made relating to freedom of expression.  This notwithstanding Ukrainian constitutional rights to freedom of expression.

Who would want to be a Ukrainian judge (anyway) that makes a decision under these new amendments that is subsequently overturned by the ECHR – when falling foul of the ECHR is a mark of notoriety with civil activists monitoring the judiciary?

Further, dependent upon how a reader interprets the draft text, it doesn’t have to be a judge that makes the initial decision.  An investigator or a prosecutor can seemingly order a website taken down/blocked for 48 hours while “inquiries” are made.  Thereafter a judge can extend (or not if they are prepared to state why they will not) the blocking of a website, without limitation on duration.

A reader may foresee potential problems with such initial arbitrary decisions by enforcement agencies and prosecutors vis a vis Article 10 without any judicial input whatsoever.

Naturally there are fines within the draft amendments for service providers who do not comply.  Quite how enforceable they would be if a website is hosted on a foreign server, and with a foreign server that may claim they are upholding a customer’s Article 10 ECHR rights over domestic Ukrainian statute is also a case yet to be heard.

In principle there is no argument that the Ukrainian State should have the legislative means to deal with the cyber issues of criminality and terrorism.  Further no law is perfect.  Clearly in this case there are also some justified concerns that the amendments to laws are far from perfect too.

Some definitions within the draft amendments are quite sensible – others are far too woolly and require their scope narrowing somewhat (or dramatically).  That could be done by numerous amendments to the Draft Amendments between first and second Verkhovna Rada readings of course, but to do so may unnecessarily inflame civil society and the media now electioneering has begun (a wearisome 9 months from elections).

Perhaps the most intriguing question however is why (and no doubt a reader will have their own opinions as to why), the sudden momentum behind this Draft Law which is clearly not quite what it should be or could be?

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