Archive for the ‘Ukraine’ Category

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Prisoner exchanges may yet save the face of a flawed investigation – Odessa

December 15, 2017

The 2nd May 2014 tragedy in Odessa was witnessed by the blog from beginning to end.

The crime scenes were compromised from the start.

The police investigation and leading prosecutors went from Odessa to Kyiv and back again over the years since.

No doubt the integrity of the evidence chain will have been compromised too in relation to certain exhibits – many of which will have been compromised before they were collected anyway.

In short, if a lesson was to be given to police recruits, crime scene investigators, detectives, and Senior Investigating Officers (SIOs) in how not to carry out an investigation, then the Odessa 2nd May investigation would be high upon a list of examples.

Nevertheless, arrests were made and suspects have remained in custody since that time while court cases progressed – and subsequently collapsed in the majority of cases.

However, there are some suspects still in custody who have cases yet to collapse.

It appears that some of these cases will be saved such a public spectacle, as several of those involved are to be subject to prisoner swaps for Ukrainians captured in the occupied Donbas.

Of the two most prominent Russian citizens, Sergei Dolzhenkov has either refused to partake in the prisoner swap or has inexplicably been omitted from the list, but Evgeni Mefedov appears set to return to Russia.

A further 4 Afghan veterans who attempted to create the “People’s Republic of Odessa”, as well as  Igor Makhinenko and former City Councillor Alexander Lutsenko also appear to be heading to Russia or the occupied Donbas in exchange for Ukrainian prisoners in the captured in the East.

Adding to that list heading to East is Vladimir Dorogokupets, Semen Boitsov and Maxim Genko (although not Miroslav Melnyk who appears not to be on the list for exchange).  Finally Alexei and Elena Vlasenko will also leave (government controlled) Ukraine too.

The exchange will mean that numerous cases (but not quite all) relating to 2nd May 2014 will effectively close.  Also cases of espionage, terrorist recruitment, conspiracy to murder (in fact a conspiracy to commit a political assassination), and a car bombing among others effectively shut too.

A reader may suspect that the PGO and courts in Odessa would be pleased to see all remaining defendants with open cases specifically relating to 2nd May swapped for Ukrainians – for behind the rightful humanitarian and patriotic desire to get Ukrainian patriots back, it would save an awful lot of public embarrassment over ever collapsing cases.

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Back to gas

December 13, 2017

Although it would be easy to continue to cover the Saakashvili circus or the fractious NABU environment, it is perhaps time to return to the dull drudgery of building a nation that looks something like the international obligations Ukraine has entered into, and by extension eventually arrive at the outcomes much of the national constituency expect.

After all, as difficult and seemingly unrewarding as those efforts may currently appear to many, this is why this generation of Ukrainians are attempting to plant the acorns from which mighty oaks will hopefully grow, and under which their children and grandchildren will sit – indebted to those that currently toil.

Ukraine knows where it doesn’t want to be, and it knows where it is (albeit glacially) heading – even if at core, it is yet somewhat unclear just what its constituents want or expect it to become in and of itself.

There is a bitter wind blowing in from Ukraine’s northern neighbour that can be used (justifiably or otherwise) to mitigate for failing to meet agreed EU timetables – though to be blunt, only in rare cases can a reasonable argument be made for that to be the case.  That bitter wind from the northern neighbour will continue to blow long into the future.  However, only the most naive or retarded reader would be unaware that many legislative and/or implementation failures are unquestionably simply due to “vested interests” insuring untimely progress for their own continued benefit.

The latest EU Association Implementation Report is not one that suggests all such efforts have met with failure.  It does however note that there are large barren gaps across the landscape where seeds, as formally agreed, should have been planted already but haven’t been – largely due to a political class that is errant in sowing the seeds and tending to some of the saplings that have appeared, despite commitments to do so.

Such are the vulnerabilities of the changes taking root, there is no guarantee that any will consolidate.  Vigilance and care is required to insure some (if not all) policy changes manage to become robust and modernising legislation free from sabotage.

One of the more notable policy changes has been within the energy sector – previously an ever-giving and overflowing font of scams and schemes for oligarchy enrichment.

After a stumble over the past few months, the 13th December would appear to see Naftogaz set itself to get back on the right track and progress toward the 3rd Energy Package commitments (separating gas extraction, transit, storage and end delivery).

To be blunt, 3rd Energy Package or not, Ukraine simply has to deal with its energy sector for reasons of oligarchy State capture in this economic sphere (and all the ills that come with State capture).

After several international and a domestic resignations from the supervisory entity – all unsurprisingly due to claims of lack of political support – those vacancies have now been filled with both international and domestic personnel, and the National Assembly that oversees Naftogaz is once more viable.

That has prompted the Cabinet of Ministers to create a working group under Vice-Prime Minister Vladimir Kistion to go out and seek foreign partnership interest for the gas transport system (GTS).  Naturally an eye remains upon Nord Stream II for any potential partner.

The working group comprises of the Minister of Energy, the State Secretary of the Ministry of Economic Development, a member of the Supervisory Board of Naftogaz of Ukraine,, the Chairman of the Verkhovna Rada Committee on Fuel and Energy Issues, a member of the NCRECU (the energy Regulator – and yes there are on-going issues with the personnel composition within the Regulator), representatives of the European Commission, the Energy Community Secretariat, the US Embassy in Ukraine, and a few others.

Who among potential foreign partners, and how many will be attracted remains to be seen.  Historically the Italian Snam, Dutch Gasunie, and French GRTgaz have shown interest.

Hopefully one or more, (even if it requires a European/national “State insurance scheme” to protect their investment – similar to the EU system used for companies entering African business environments) will get involved.  The way to defeat the oligarchy is to dilute the economic spheres they have captured.  A lesser market share equates to less economic influence.  That in turn may force the oligarchy to concentrate their efforts more on commerce and less on co-opting political parties and “renting” parliamentarians in an effort to prevent market dilution as is currently the case.

All very basic stuff of course – and over the long term it is a policy with a reasonable chance of achieving such aims if sufficient foreign partners and market entrants can be found across the oligarchy captured spheres of the economy.  Certainly diluting the economy, and thus lessening the oligarchy control of it, seems more realistic than fanciful notions that expect them to be jailed or otherwise release their grip on economic monopolies and/or cartels.

Let’s see what happens with Naftogaz in the New Year – progress on unbundling would be a positive.

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Saakashvili granted unconditional bail

December 11, 2017

As predicted a few days ago Misha Saakashvili has been released from custody while the criminal case against him continues.

The reasons why his release was so predictable?

“No doubt he will not be incarcerated for long.

Conditional bail would seem a probable outcome – house arrest, or a large financial commitment, or an electronic tag, or a combination thereof.  Perhaps even unconditional bail.  Whatever the outcome, it will not be time in jail.  The appearance of proportionality, despite the intensity of dislike for Mr Saakashvili by the President, will have to be observed if the international community are to remain mute over the matter.”

The court, via Judge Larisa Tsokol, released Mr Saakashvili on unconditional bail.

In short there are no restrictions upon his liberty other than that of surrendering himself to the court at the next scheduled hearing.

The application by the prosecution for house arrest was denied.

The general guideline for when a court grants bail is that it is by default unconditional.

Conditions are generally only applied if there is a continuing risk of further offending, or of absconding, or of harm to any victim(s) or to the public.  Naturally if the risks are deemed too great for any conditions to be reasonably enforceable, then remand is the solution rather than bail.

So, was the prosecutor’s request for 24 hour house arrest proportional?  Would it have been preventative?

Thus far it appears Mr Saakashvili is being investigated for being part of an organised crime network – the only evidence in the public realm purporting to involve Mr Saakashvili personally being SIGINT – telephone interceptions.  Of course there may be more that is not (yet) in the public realm.

Would 24 hour house arrest prevent MR Saakashvili using the telephone to continue to allegedly conspire with a wanted man currently hiding within Russia?  Clearly not, so the risk of his further offending is diminished how by 24/7 house arrest?

A reader would naturally question the risk of his absconding.  Mr Saakshvilli illegally entered Ukraine to further his agenda within.  With an ego such as his, and an agenda that he will attempt to advance, there seems little reason to anticipate his absconding – particularly when he claims the allegations are bunkum.  If his is certain that is the case, then every court appearance he makes is simply another PR opportunity for him.

The alleged victim in this case is The State.  Now there will be many that will argue Mr Saakshvili has and may continue to harm The State through his actions – and there will be just as many that will adamantly disagree.  Whatever the case, it is difficult to see how 24/7 house arrest would prevent his ability to further his agenda – whether that harms The State or not.  It would prevent only his physical participation at events – not the organising, promotion, or any virtual attendance at them.

The rationale behind the prosecution’s conditional bail request is therefore open to the question.

However, in a case that has, and will continue to retain a certain amount of international media attention – notwithstanding a watchful diplomatic eye – with the Ukrainian leadership making claims of judicial reform and progress in the application of rule of law, there is perhaps more to be lost in “generously viewing” and thus granting the prosecutor’s request, than there is to be gained by refusing the prosecutor’s requests and sticking with the general guidelines relating to bail.

There are matters of perception in such a high visibility case.  After all, the case continues and an impeccable due process must be seen to be done.

Lady Justice of Ukraine is upon the international stage once more.  That she may peep from behind her blindfold and glance at her appearance as others gaze upon her is perhaps not that unexpected.  Every lady likes to look er best.

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Kyiv protests – What are the demands?

December 10, 2017

Sunday 10th December witnessed several thousand people protest in Kyiv.  The estimates seen by the blog vary as to the number, anywhere from 2,500 to 7,000.

To be blunt there is no surprise at the wide range of “guesstimate”.

There are several methods commonly used to estimate crowd sizes none of which are ever going to be exact, and some estimators will be more accurate than others depending upon their assessment of crowd density over a certain area and whether it is done by eye or by electronic means.  This before any massaging for political effect in certain cases.

Whatever the case, it is fair to say there were several thousand people in attendance.

The protest was called by the currently incarcerated (though probably not for long as the previous entry outlined) Misha Saakashvili.

Whether or not all were present to support Mr Saakashvili, or whether some were there to support the raisons d’être rather than Mr Saakashvili himself is a question only those attending could answer.

So what were the raisons d’être proclaimed for the holding of the protest?  If a reader does not support Mr Saakashvili, would they still have attended to support the stated causes?

The demands of the demonstration, insofar as officially given by the organisers, were the passing of an impeachment law, the introduction of legislation to create specialised and independent anti-corruption courts, to insure the second reading of (and pass) the new Electoral Code statute, and the last requirement was the resignation of Prosecutor Yuri Lutsenko.

So, to address these requirements in the order above, what are the chances of the final plenary session of the year, 19th – 22nd December, accommodating them – particularly with the Bills already slated for that period?

There will be other issues upon the agenda already.

Such are the competing power dynamics and issues of constitutional accountability, any impeachment law would stand far more chance of passing through the Verkhovna Rada if The Bankova saw such legislation accompanied by legislation removing the current (almost absolute) parliamentary immunity enjoyed and abused by the nation’s parliamentarians.

In short a mutual weakening in immunity.

The majority of parliamentarians are in no rush to remove such immunity – whatever rhetoric they may employ to the contrary.  It seems probable that even if they voted to remove their own immunity now, it would be so written that it came into effect only after the Verkhovna Rada elections of October 2019.  That being so, any presidential impeachment law would probably also have an “effective date” of after the March 2019 presidential elections, if not exactly the same date as changes to parliamentary immunity.  Quid pro quo.

That said, even with an impeachment law, the bar is necessarily set high before an impeachment can occur – and that does not necessarily mean a president is removed.  For example both US Presidents Andrew Johnson and Bill Clinton were impeached, but neither removed from office.  Richard Nixon was never impeached, but resigned.

That parliamentarians should have limits placed on their immunity, and that there should be an impeachment law relating to a president is certainly reasonable considering historical abuses, any current shenanigans, and future temptations.

In order to frame the impeachment law to generate far greater, indeed almost unjiversal public traction, its submission with the legislation to severely curtail parliamentary immunity is perhaps wiser.

The introduction of legislation relating to the creation of independent anti-corruption courts perhaps should be expected during the final plenary week of the year following the blunt diplomacy on the evening of 6th December as previously stated.  Nevertheless, The Bankova plan will be to slow the process sufficiently that any new anti-corruption court will not be fully functional prior to the 2019 elections.  That “glacial plan” will not be short of support within the Verkhovna Rada.

It was something of a surprise that the first reading of the new Electoral Code passed.  It found the exact minimum required 226 votes.

Perhaps its passing was the result of one of those miscalculations by certain party leaders who will witness their power subsequently diminish should these legislative changes be made.  Nevertheless there is no real reason the second reading should not occur – the important caveat is whether 226 votes can be found a second time?

No doubt there are a few powerful party people that would like to see serious sabotage by way of amendment prior to a second reading, or alternatively simply delay a second vote long enough to make its implementation prior to the 2019 elections simply impractical if it is passed.

Ergo those seeking to have the law passed at its second reading during the last plenary session of the year will have to be absolutely sure that the required votes are there – both theoretically and physically when the time comes.  Can that be assured for the plenary week beginning 19th December?

It is one thing to force the matter onto the plenary agenda, but perhaps quite another to be certain of 226 assenting votes being in the session hall.

The last demand for the resignation of Yuri Lutsenko will not find the required parliamentary traction before the year end.

The Bankova will have to feel far more uncomfortable than it does now to sacrifice Mr Lutsenko considering the immense effort it took to appoint him in the role in the first place.

Regarding the issue of his resignation, the opinion of the blog is already on record before the latest Saakashvili related incidents.

Further, even if Mr Lutsenko resigned willingly, it is not necessarily the case that his resignation would be accepted.  This is perhaps a little theatre for the future, but possibly not in time for the Christmas pantomime season.

Thus, one of the demands of the protesters will probably be met – and probably would have been met regardless of the protest occurring – that of anti-corruption court legislation being submitted.  A fully functioning court however, is perhaps unlikely before 2020 due to political expediency.

The second reading of the Electoral Law perhaps should not really occur until and unless those that support it can be absolutely certain that they have the minimum 226 votes in the same place and at the same time to get it through.  A self-inflicted failure is to be avoided if at all possible.  It is a question both they and the demonstrators will have to consider before forcing the matter onto the agenda – if they can force it onto the agenda between 19 – 22 December.

To be entirely objective with due consideration to the balance of powers, it is very unlikely that any impeachment law will pass without simultaneous attention to the severe curtailing of parliamentary immunity (and current impunity).  If and when that occurs, expect an “effective date” to be after any elections in 2019.

The forcible removal/resignation of Mr Lutsenko is not likely to occur particularly quickly.

Nevertheless, it is no bad thing that there are still thousands willing to be seen to protest.  It pays to have the political class keep a wary eye upon the electorate.

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Saakashvili arrested – Impeccable due process required

December 9, 2017

In between recent NABU related commentary, an entry was published relating to how The Bankova had managed to frame the most recent accusations surrounding MIsha Saakashvili in the most counterproductive way appeared.

There is no doubt that President Poroshenko is a vengeful man.  So is Mr Saakashvili.  There is no doubt that both men feel betrayed by the other.  They are from the same school whereby treachery requires a very public smiting.  Neither are probably as smart as they think they are, yet both consider themselves to be a more wily politician than the other.  In playing out their personal differences upon the public stage of Ukraine, both are damaging the image of Ukraine, and both are probably aware of that.  They just appear incapable of taking their personal fight away from the public realm and back behind the curtain.

The entire operation against Misha Saakashvili has been bungled from the start, leading to successive public, yet unnecessary humiliations for President Poroshenko and The Bankova.  That bungling has almost gone beyond the extremes of incompetence.

Misha Saakshvili’s response has been equally erratic and inconsistent to the point where belligerence for the sake of belligerence has often appeared to be the only mens rea – no doubt to the joy of Ms Tymoshenko who appears an almost “sensible” populist in comparison.  Maybe that is indeed the plan concocted between the two.

With every bungled step, and every spontaneous but less than creative reaction, both seem intent upon being recorded in history as mere squabbling politicians.  The epitaph of “Statesman” will not easily be applied to either as they continue to swap (unless proven) spurious allegations while simultaneously projecting a perception of Ukraine as something akin to a political Banana Republic, otherwise held together by a far wiser population.

So be it.  History is generally kind to a “Statesman”, for a “Statesman” through deliberate, or brave, or enlightened deeds, has a habit of writing history for themselves.  Politicians of limited action and less vision become mere historical footnotes – in recognition of their folly and failures for the most part.  The trajectory of these two men and the incredible amount of wasted energy they are spending attacking each other to the detriment of Ukraine points only toward becoming a Ukrainian historical footnote.

Whatever – the wise readers of the blog are drawn toward policy and not political personality anyway.

The above linked entry concentrated upon the framing of the latest accusations.

Until now, the trading in spurious allegations has been based upon anecdotal evidence at best – as bitter personal relations often are – with the exception of the “Lviv crossing” whereby Mr Saakashvili illegally entered Ukraine and subsequently paid the administrative fine for doing so.

The latest allegations of involvement in a criminal organisation – namely the alleged collusion of Mr Saakashvili with Sergei Kurchenko, a notorious member of the “Yanukovych Family” regime, for once rely upon more than bitter, spurious public comment.

Mr Saakashvili was finally been successfully arrested relating to these allegations on the evening of 8th December.

No doubt he will not be incarcerated for long.

Conditional bail would seem a probable outcome – house arrest, or a large financial commitment, or an electronic tag, or a combination thereof.  Perhaps even unconditional bail.  Whatever the outcome, it will not be time in jail.  The appearance of proportionality, despite the intensity of dislike for Mr Saakashvili by the President, will have to be observed if the international community are to remain mute over the matter.”

Indeed it should be expected that the international community will remain silent for as long as proportionality is observed in any bail arrangements, and for as long as due process remains strictly in adherence with Ukrainian law.  For as long as that remains the case, it will be considered an internal matter for Ukraine – and a mess otherwise best avoided.

In the on-going feud between the these two men however, now evidence is offered by way of SIGINT telephone conversations allegedly between the Messrs Saakashvili and Kurchenko, and an alleged cash for political favour agreement over Mr Kurchenko’s remaining or seized Ukrainian assets, the game has changed.

There are questions to be asked and answered based upon any produced evidence intended for criminal proceedings – and not simply barbed soundbites for public consumption.

Mr Kurchenko is rightly wanted in Ukraine and thus self-exiled to Russia, but it is unclear how he would believe Misha Saakashvili would be able to deliver either the protection of, let alone return of his assets in Ukraine.  Is he anticipating a President Tymoshenko and with that her appointment of Misha Saakashvili to a Cabinet position, or expecting Mr Saakashvili to at least create an “understanding” regarding the deal with Ms Tymoshenko?

Who carried out the SIGINT?

The only authorised body for wiretapping in Ukraine is (unfortunately) the SBU.  Yet it may perhaps be erroneous to jump to the conclusion that it was the SBU.  Perhaps this SIGINT arrived via a different source.  Assuredly it is not only the SBU that monitors Mr Saakashvili’s telephone.  If that source was not the SBU, then who?  And why?

Crucially however when that SIGINT was received whatever the source, did the Prosecutor General have the authenticity verified prior to making it public?

Having presented that evidence in public, the court of public opinion requires a settlement regarding the authenticity of the SIGINT – as will a court of law.  Yet before considering whether the SIGINT is sufficient to convict Mr Saakashvili, it is important to stress the high political stakes this public presentation of the SIGINT has now caused.

It is either genuine, and whether it is sufficient to prove any criminal guilt or not, that Mr Saakashvili simply entertained Mr Kurchenko at all is likely the end of his political efforts in Ukraine – or it is fake, in which case Prosecutor General Lutsenko is finished, and depending upon the speed at which the SIGINT is proven authentic or otherwise, it may well bring about the swift unraveling of the Poroshenko presidency and any reelection prospects – or indeed a second term Poroshenko administration if matters drag on.

No doubt the defence, once it receives the SIGINT, will send it to external experts – if it is sure of its client’s innocence.  Indeed if it is certain of Mr Saakashvili’s innocence, more than one external expert assessment will probably be sought to insure the politically burying, and end of Prosecutor General Lutsenko, and as a result irreparably damaging (a first or second term) President Poroshenko.

There is also the question, for whichever party is lying, of who else may have such SIGINT.  As stated not only the SBU will be listening in to Mr Saakashvili’s telephone.

Inevitably, the timeliness – or not – of any due process and verdict will be called into question.

Who is seen to be delaying matters and why?

A Sword of Damocles meant to hang over Mr Saakshvili and curtail his “unhelpful” actions during electioneering (akin to a similar sword that for years has now hung over Mayor Kernes in Kharkiv), or will it be inferred that any stalling by either defence or prosecution is a de facto admission upon the SIGINT authenticity?

The court of public opinion is a fickle and excitable one, not prone to objectivity.

More broadly, while a court of law will examine any SIGINT in and of itself, the court of public opinion is less stringent in such matters.  If this SIGINT was proven to be fake, then the court of public opinion will question what other publicly released SIGINT is also fake – and there will naturally be certain parties very keen to encourage that line of thinking and take advantage of it.

In short, extreme care will have to be taken to fully follow the evidence and due process rules – as no doubt an international media will be following the trial if and when it comes.  Conviction or otherwise however, the authenticity (or not) of the SIGINT evidence will have repercussions.

The blog however, is far more inclined to follow the Nasirov trial which already appears to be set upon the path of nefarious irregularity via the appointment procedure of a judge with a litany of very dubious historical rulings.  Every effort will be made to insure that case results in Mr Nasirov’s acquittal – so the UK had better be prepared to follow through with its claim on Mr Nasirov as a UK citizen under The Bribery Act.

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The President on anti-corruption (NABU fallout)

December 8, 2017

This week, perhaps rightly given the gravity of events, the blog has concentrated upon the events surrounding NABU and more broadly the anti-corruption institutions current and future.

It is appreciated that for some readers this is something of a bore, and indeed to focus on what is a policy of sabotage and/or vengeful targeting of the NABU Chief in the battles that lay ahead – for they are certainly not over – is not why all readers spend their time pursuing the blog during a coffee break.

Further, while the author has a history in CT and organised crime, and thus finds policy and operational matters surrounding these arenas both interesting and often questionable, the blog was never intended to focus on such matters to the exclusion of all else – and it hasn’t.

An eclectic commentary upon issues that do not grab the headlines was the goal.

Indeed this week while NABU related issues could not be ignored, the blog has failed to mention the deals struck with China by Prime Minister Groisman to the tune of $7 billion, and the declaration that 2019 will be “The Year of China” in Ukraine – however that will manifest.

It has also failed to mention the passing of a law that prima facie not only runs directly against the obligations of Ukraine regarding the EU Association Agreement, but also, by interfering with the Prozorro public procurement system, has particular implications for continued corruption and lack of transparency.  While this law will seemingly have to be vetoed or seriously amended to comply with the AA and providing anything like transparency, the more interesting questions would be why those who voted the law through did so, and who lobbied them to do so if anybody?  The major beneficiaries are probably to be found in the provinces due to decentralisation after all.

Both of these occurrences (and others such as tax law changes and the 2018 budget adoption) are all worthy of scrutiny and posing questions this week – but this is not a news outlet and your author is not a journalist.  One entry per day, for the sake of a hobby, is all you get.

Following on from the previous NABU related entry of yesterday and the ousting, or sacrifice, of Mr Sobolev within the “Positions-Interests-Needs negotiation model, (depending upon how a reader may view the discussions held the night previous to his removal from his position), the 8th December witnessed a NABU related statement by President Poroshenko while hosting the fearless (and thus respected) Lithuanian President Dalia Grybauskaitė.

There are certainly things to note from the President’s oratory.

The President stated “I declare that I will not tolerate any dangers regarding political interference with the activities of the anti-corruption institution.”  Quite right.

The Europeans, US and Canada also made it perfectly clear that they too will not tolerate such political dangers either, after the parliamentary leaders of the Presidential faction and its coalition partner People’s Front, jointly authored a draft Bill that would have actively facilitated “political oversight” – a euphemism for political subordination in Ukrainian parlance – over NABU.

The President went on to say “over two and a half years of anti-corruption activities, all, including the leaders of these bodies, claim that there was never any interference with the activities of these bodies on the part of the president.”

A reader is therefore expected to infer from the presidential comment above that President Poroshenko and The Bankova disassociate themselves from the draft Bill that the two leaders of political parties that form the coalition had submitted that was intended to sabotage the independence of NABU.  Further the actions of an undeniably politically subservient Prosecutor General and SBU in the NABU environment occur without, at the very least, tacit approval/awareness.

It is customary that such legislative sabotage is generally submitted via draft legislation by little known deputies who, should a draft Bill bring a particularly volatile reaction, can simply withdraw it under the instruction of fatherly Bankova advice for the sake of deniability.  There is no deniability or claims of ignorance to be found when the parliamentary leaders of the two coalition parties submit a joint Bill that is so obviously a blunt assault upon an institution’s independence.  It simply would not happen without the knowledge of those at the very top the political elite – The Bankova and the President.

Hence the international community threatened severe consequences via some very hefty policy sticks that led to the Bill not being put to the vote.  Only a fool would believe that those within The Bankova, and President Poroshenko himself, were not aware of the draft Bill, or the substance of the foreign reaction.  Micromanagement is the political signature of this Bankova after all.

It is perhaps worthy of note that The Bankova and President Poroshenko are not exactly the same thing and therefore necessarily interchangeable labels.  Indeed, arguably The Bankova does not necessarily consist only of those that work within it.  It is perhaps better defined as a collection of interests – sometimes competing, sometimes aligned, but all joined by situational needs, headed by President Poroshenko.

At the press conference The President further stated “On the contrary, I believe that it is necessary to accelerate the appointment of the audit, it is necessary to provide effective protection against any political interference of politicians in the work of the NABU and politicization of the work of any law enforcement agencies and the desire to influence their work.”  Again, quite right.  Upon such principles are nations built.

Here we come to the crux of Positions-Interests-Needs negotiation and the hefty stick diplomacy of 6th December – and whether Mr Sobolev was sacrificed – or not.

How do such “discussions” take place?  If a reader were involved, how to go about them?

The international position is clear and robust.  After having invested so much into NABU, this institution will not be allowed to fall under political control without severe consequences.  The Bankova position is that without political control it cannot be sure of gathering and consolidating the interests and assets behind it to insure election victory.  It can offer no guarantees to those it has to get on board that their personal support will equate to personal benefit.  It is not only a matter of facilitating corruption among the elite by taking control, but political survival too.

The question put before the international community then – which is the priority if (and only if) President Poroshenko is perceived as the least worst option in 2019?

The answer, perhaps to the dismay of President Poroshenko, is invariably it is the support of institutions rather than individuals that take priority.   Typically institutions last longer than politicians in a democracy after all.  Thus whomever may become president will face the same hefty sticks from the same foreign capitals when it comes to attempts to sabotage anti-corruption institutions that have so much foreign energy already (and continuously) spent on them.

If that position was not clear to The Bankova and President Poroshenko before the evening of 6th December, then it should be now.  Who wants to be the Ukrainian President or “Bankova member” responsible for the reversal of Visa-free, or for putting an end to defensive weapons debates?  Personal sanctions perhaps?  A visible political shunning beyond territorial integrity issues?  Not exactly an election winning and/or vested interest saving position to be in.  Big affronts to the democratic sensibilities Ukraine claims to share, result in the waving (and potential use) of big sticks in response.

That position now (hopefully) unambiguously clear, it is an opportunity, while brandishing hefty policy sticks and in prickly diplomatic mood, to remind those negotiating on behalf of The Bankova and the coalition political parties, that genuinely independent anti-corruption courts are required to complete the independent anti-corruption investigative and prosecutor architecture.

The presidential comment of 8th December – “I asked the Parliament to create a working group for the preparation of the project, taking into account the positions of the Venice Commission and people’s deputies, and I stated that if the parliament is dragged on with the creation of such a working group, I will shortly introduce a bill that will be developed by me and will take into account all comments, which were voiced by the Venice Commission.”

The President made very similar comments more than two weeks ago that did not bring forth his own Bill in the absence of Verkhovna Rada activity – but that was before the “discussion” on the evening of 6th December, and the parade of hefty policy sticks that would end any thought of reelection if wielded.  Perhaps this time, before the year end, there will be legislation submitted.  There is one more plenary week to go beginning 19th December.

The Bankova “Position” fully surrendered, it now moves to its “Interests”.  There is coercive opportunity to perhaps be found in the selection of the NABU Auditor and the ability for exceptionally slow anti-corruption court creation.

The foreign “position” now secured over such blunt attempts at political interference on NABU (for the time being at least), it is also their position to have a NABU Auditor appointed – for it is they that had a significant hand in pooh-poohing horizontal and vertical accountability methods, instead insisting upon independent external accountability via an independent external auditor – precisely to avoid political subordination in any way.

The mens rea of the elite Ukrainian political class remains unchanged – control of NABU.  The foreigners are no fools.  Having beaten back the odious draft Bill, and with hefty sticks still in hand, it is an appropriate time to keep the momentum and discuss NABU Auditor candidates – for which there are several very competent foreign candidates.

If rumour be in any way accurate, The People’s Front have now agreed to back Robert Stroch (former FBI auditor) following what was clearly very prickly diplomacy indeed.  It remains to be seen whether others have been equally “convinced” to align behind a particular candidate (or not) having so irked foreign capitals with the proposed draft Bill to kill NABU.

However, movement on this issue can probably be expected and has been subsequently acknowledged in the Presidential comment above.  The chances of now getting a NABU Auditor that will succumb to domestic political influence are clearly less than good odds for those requiring a deliberately poor audit to oust the NABU Chief.

NABU certainly requires auditing – not only to meet legal requirements, but as a fledgling institution there will be audit findings that need fixing.  There is no way the internal workings can be perfect.  No institution is perfect.

This brings a reader to Mr Sobolev, who had used his position to prevent the appointment of a NABU Auditor for the past 15 months – doing so in the belief that the appointed would be politically amenable to the Bankova whim.  Naturally, if the stick wielding of the evening of 6th December has brought about consensus, the blocking actions of Mr Sobolev must be overcome.

Thus far, the international community have not moved from their “position” whatsoever.  All concessions have come from the Ukrainian political coalition elite.  Its position could not be saved, its nefarious interests surrounding the Auditor having been recognised, and if rumour be true neutralised (even if temporarily), it is left with a need to be seen to emerge with something (even if playing with the context of “needs” here within position-interest-needs).

It is no secret that Mr Sobolev is more than unpopular within The Bankova (or with some within the Verkhovna Rada.)  NABU Auditor aside, he has stood his anti-corruption ground where others would have crumbled – which is not a way to endear yourself to the Ukrainian elite.

His removal can therefore be perceived as a “win” for The Bankova, in an effort to mitigate the obvious defeat of the draft Bill, predicted shenanigans around a malleable Auditor, and deliberate glacial progress on an anti-corruption court (that preferably will not be functional before the elections from a domestic leadership perspective – hence the glacial movement).

The foreign capitals also recognise that simply crushing The Bankova is not necessarily good policy – for it may yet remain the “least worst option” come the elections and therefore a longer term view is required for a working relationship.  Plus, one way or another, Mr Sobolev will have to change his position in preventing the NABU Auditor appointment.

Are the diplomatic corps entirely certain that he will now allow a NABU Auditor to be appoiinted, or of what is really driving his position?  For all that he has done that is recognised as furthering the anti-corruption cause in other areas, having finally been forced to reach for the hefty sticks, and having seemingly reached agreement with the “powerful and influential” during the “discussions” surrounding NABU, Auditors and anti-corruption courts, is he not a variable that could derail the outcomes of these “discussions”?

Politics and diplomacy is no place for the fainthearted.  The defence of anti-corruption institutions clearly matter more than any particular individual.  While the removal of Mr Sobolev from his post may not be a desired outcome, it is not enough to derail all else accomplished during the “discussion” – unfortunately for Mr Sobolev.  An endured but unwelcome sacrifice in pursuit a greater cause?  Perhaps.  An act of vengeance following an understanding of a muted response?  Maybe.

Whatever the case, room has been left for The Bankova and President Poroshenko to now state that the obstructions to appointing a NABU Auditor have been removed and continue the pretense of having no involvement in the draft Bill (despite the authors of it) that brought matters to a very bruising political head.

It is, unfortunately not an end to the matter.  The subordination of NABU will continue to be an objective for some, and the removal of its Chief a priority, if for no other reason than despite numerous attempts to remove him he still remains.

A court case involving the NABU Chief questioning the circumstances of his initial appointment continues in Kyiv.  Those that brought the case remain unknown, and it appears to centre around his personal declaration submitted at the end of March 2015, his appointment in the middle of April 2015, and his declaration being deemed accurate and lawful in early May 2015.  The inference being he was unlawfully appointed prior to the official conformation that his declaration was lawful and correct, that the SFS and Finance Ministry should have prevented his appointment until checks upon the declarations were completed, and that therefore he was unlawfully appointed.

The NAPC, subject to allegations of Bankova control after whistle blowing, has restricted NABU access to e-declarations.  Somewhat necessary for the role of NABU.

And NABU operations continue to irk – this time the Ministry of Justice.

For now however, the memory of those hefty foreign sticks will remain when it comes to the anti-corruption institutions.  Hopefully those sticks will not ever have need to be used, for a reader can never be sure whether such a beating would drive out the worst of intentions – or beat them further in.

 

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Sobolev ousted – What now?

December 7, 2017

Following along seamlessly, and fortunately exactly as scripted within the previous entry from the perspective of prophecy, the Verkhovna Rada did not deliberate the suicidal draft law that would have placed NABU under “parliamentary oversight”.

“Parliamentary oversight” in the Ukrainian context unambiguously means “political subordination”.

Naturally political subordination for an anti-corruption entity tasked with dealing with corruption among parliamentarians meant the death of NABU.  As an institution it would have continued – but de-fanged and de-clawed and otherwise a political tool for whomever held the parliamentary majority.

It is no coincidence that both horizontal and vertical accountability were shunned by NABU creators in favour of external independent audit.

The passing of the ill-fated draft law would have brought severe consequences from those foreign capitals that have invested enormous amounts of political and diplomatic energy – not to mention funding – into NABU.

Clearly Ukrainian civil society was immediately manning the gates to rebuff such crude yet potentially disastrous political maneuvers – as the emails, DMs and various messengers of this blog are testament to throughout most of the night.

Undoubtedly the diplomatic corps was inundated too, not that it required a reason to swiftly step into the front lines and defend what it has created and supported.

Lenin is once said to have stated something similar to “Probe with a bayonet: if you meet steel, stop. If you meet mush, then push.”  There was a need for this political assault upon the independence of NABU to be met by diplomatic and societal steel.  That need was met – this time.

Some very hefty sticks must have been waved behind the curtain for The Bankova to retreat from such an unabashed and easily attributable assault.

As the previous entry linked above made clear however, the blog did not consider this an attack that would fail to be repelled.

The more subtle method would be to remove Yeger Sobolev from his position as Chairman of the Verkhovna Rada Committee on the Prevention of Corruption and replace him with a less belligerent option when it comes to accommodating Bankova desires – Mr Sobolev has repeatedly blocked what he considers politically influenced candidates for NABU Auditors despite the legal requirement for NABU to be externally audited.

Obviously Bankova desire is the appointment of a politically influenced NABU Auditor that will be assured to provide the “right audit outcome” in order to remove the current Head of NABU, and thus replace him with a more accommodating and politically compliant individual.

Subordinating NABU is the desired outcome.

On 7th December the removal of Mr Sobolev as Chairman of the Verkhovna Rada Committee on the Prevention of Corruption was successful.  The Verkhovna Rada removed him from that position with 256 votes in favour – 108 MPs from the BPP, 65 from the People’s Front, 32 from the Opposition Bloc, 15 from the Radical Party, 17 from Renaissance and 13 from Will of the People.

Whether there will be a prickly response to the removal of Mr Sobolev by foreign capitals and international institutions remains to be seen.  Foreign capitals and international institutions are less keen to be seen to support individuals, but rather support institutions more often than not.  Thus it may or may not be their powder will be kept dry until a replacement is appointed.

At the time of writing it is unclear who will replace him.  The People’s Front Yuriy Savchuk to replace him perhaps?  An individual that is not of the presidential party (and thus deniable) but otherwise direct-able would make (nefarious) sense.  Whomever is appointed can surely anticipate every Committee outcome to be put under the microscope domestically and abroad.  All are very aware of the Bankova desired outcomes and that this is part of a plan to realise them.

However, there is perhaps also the question of what, if anything, this VR Anti-Corruption Committee will produce at all.  How will Mr Sobolev’s removal affect the quality and quantity of any work for better or for ill?  Prima facie it is hardly a Committee that appears to be replete with critical thinkers or overflowing with motivation, but perhaps more inclined to acquiescence and doing the minimum.

Thus the absolute impartiality of the NABU Auditor becomes critical.  Whatever hefty sticks were waved to force The Bankova to so completely and publicly retreat over the proposed draft law had better not be put away just yet.

Indeed while the hefty sticks are out on the anti-corruption legislative playing field, while there is a momentum of The Bankova somewhat in retreat (not withstanding VR Committee shenanigans), then perhaps an attempt to motivate the deliberately glacial Anti-Corruption Court legislation before the year end could be the goal.  There is another plenary session in late December.

Naturally The Bankova does not want a functioning Anti-Corruption Court prior to the 2019 elections any more than it wants an independent NABU – electioneering surprises are not welcome when trying to balance and consolidate the majority of vested interests behind the incumbent – but having waved the hefty sticks to prevent the political subordination via the bluntest of Bankova legislative assaults, then those same sticks whilst being wafted around may have influence on the lack of anti-corruption court progress too.

That indeed may have been the case, for following the Bankova legislative retreat, President Poroshenko engaged in public theatrics (for whose benefit it is unclear) threatening his direct action if the Verkhovna Rada doesn’t get on with the legislation for the Anti-Corruption Court – no differently to what he said a month ago and unsurprisingly failed to act upon.

Whatever the case, the anti-corruption game is very much afoot – until it stalls again.

 

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