Posts Tagged ‘ECfHR’

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A Rada week that will be one legislative step backwards?

October 3, 2016

This week the Verhovna Rada will see the following draft laws presented for voting:

Draft Law 3665 – A draft law on mediation creating legitimate mediation institutions in an effort to reduce pressure upon the judicial system.

Draft Law 2297 – A draft law relating to the creation of a far more favourable tax environment for charity donations made via telecom company operating systems (donations via text/SMS etc).

Draft Law 3491D – Relates to framework education, outlining obligations and accountability throughout the administrative structures.

Draft Law 4549 – Which seeks to meet Ukrainian obligations under EU Directive 2012/27/EU within the energy market.

Draft Law 3603 – Proposes to align Ukrainian water management practices with the EU Water Framework Directive.

Draft Law 3259 – Aimed at the State and its strategic environmental assessment mechanisms.

Draft Law 2009a -D – Would bring Ukraine within the requirements of Directives 2003/4/EC and 2011/92/EU (not withstanding the several other conventions to which it is a party).

None of the draft laws are perfect.  Some are good, and some not so good.  Most, indeed probably all will require amendment – as there are few Ukrainian laws that are written so well that they subsequently escape amendment almost before the ink is dry on any presidential signature signing them into law.

Long has the blog bemoaned the standard of crafting and drafting of legislation in Ukraine – and that will undoubtedly continue far into the future.

This brings about a number of suggested amendments also before the Verkhovna Rada in the coming week that simply fall into the counterproductive and/or woeful categories.

Draft Law 4370-1 – A law that seeks to amend the procedure for appointing the heads of local state administrations.  Not only is it clearly unconstitutional, it presents the holder of the office of President with the opportunity if not usurp power, then to grasp power tightly at the very root of local democracy.

Draft Laws 5097 and 5177 – “The Lutsenko Drafts” seek to remove the exclusivity of NABU in investigating corruption among the elite as described in a previous entry.  This will simply not sit well with the national constituency, nor the “external friends” of Ukraine that have spent a lot of political and diplomatic energy, not to mention financial assistance and training for NABU.

Draft Laws 1592 and 5079 – The much anticipated attempts to weaken the e-declaration legislation by removing criminal responsibility for submitting deliberately false information within their declarations, and also to curtail access to e-declarations.

To be clear the e-declaration law is not perfect.  It does unquestionably require amendment.

However the removal of criminal responsibility for false declarations is not where fault lies within the current legal text.  To be sure without criminal responsibility few would expect the feckless and in many cases distinctly criminal within the political class to pay much heed to the accurate completion of their e-declaration.

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The issue of public access to e-declarations is perhaps a far more sensitive matter.

There are 7 nations that have committed to (but not yet delivered) public registries very similar to that of the Ukrainian e-declaration.

31 nations are considering making their registers/declarations public.

Only 2 countries have actually created a public register of declarations – The UK was the first and Ukraine is now the second.  For once Ukraine is leading the way in the transparency arena.

To be a public figure within a democratic legislature or senior civil servant within Ukrainian State institutions demands an advanced level transparency – particularly in a nation like Ukraine where corruption is deeply ingrained within this class of people.

The desire of Ukrainian society to also see included in those e-declarations the assets of parents and children of public figures and/or senior public servants is entirely understandable when they have historically been consistently used to hide the assets of public figures.  This is currently a legal requirement prior to any legislative amendments.

It is justifiable, and it is indeed currently legitimate, for prescribed investigative anti-corruption bodies to have access to all such information on an e-declaration including that of family members who hold no public office, but is it proportionate in respect to individual privacy of non-public figures for the entire nation to have access via a public register?  Is it justifiable for anybody to gain access to information relating to non-public family members simply because the information is stored on Government servers via any Ukrainian equivalent of a Freedom of Information Act?

The fundamental question is whether or not the same freedom of information access to that of public figures should equate to the same level of access relating to non-public family members?  It is where matters may get a little messy and may perhaps darken the door of the ECfHR one day in the future unless due consideration is given.

Emotion dictates that full and absolute transparency is demanded from public figures who have stolen from the Ukrainian people (and therefore this blog) directly and indirectly daily, and for decades.  Morality demands that their nefarious gains should not be allowed to be hidden via their family members, or easily in any other way – perhaps for many, regardless of any rights to privacy.  Proportionality however, specifically with regard to family members, may consider unfettered access to all such information in a public register worthy deliberation should the data demands of the e-declaration remain unchanged.

Sooner or later, this issue will be raised.  In the meantime however, few in Ukraine will have any sympathy for the privacy rights of those involved, one way or another, in raping, pillaging and hording the proceeds of the country over the past 25 years (and more).

Nevertheless, the proposed Draft Laws 1592 and 5079 are far from being the remedies for the issues within the e-declaration legislation.

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Lustration – A slow motion policy car crash?

March 22, 2016

On 5th October 2014, when President Poroshenko signed into law what was clearly a poorly crafted law – despite its rightful intention – an entry was published outlining the fact that such a poorly crafted law was extremely likely to result in something of a policy car crash.

wall

“The perception is though, that it is better than nothing and allowing the existing situation to continue unchallenged and unchanged.  The law is certainly not so woefully poor that it has to be unreservedly thrown out – indeed throwing it out would anger a sizeable part of the Ukrainian constituency immediately prior to the RADA elections in a few weeks time.”

and

“Amendments will surely follow once he Constitutional Court and Venice Commission recommendations are forthcoming, hopefully transforming the “OK” into “good” legislation – but will any amendments be made in a timely way?”

Notwithstanding

“The issue with “OK” legislation for a subject as serious as lustration, is that ultimately European Court of Human Rights appeals may very well result – with rulings granting compensation and strong suggestions of reappointment to follow, thus inflicting Ukraine to needless costs and possibly reinfection a cleansed (or at least cleaner) system with the possible reinstatement of the corrupt it would have already once removed.”

On 20th November 2014 an entry was published outlining the very Constitutional challenges anticipated almost 2 months prior.

“Indeed, as foreseen, subjecting those learned (and corrupt) individuals to a law that was clearly never more than OK, and far from being good, is subject to legal challenge from th learned (and corrupt) judiciary within their own corrupted court system.  27 of 43 Supreme Court Judges have voted to send the Lustration Law to the Constitutional Court.  Those 27 voting in favour of challenging the Lustration Law (informally) headed by the Head of the Supreme Court, Judge Romaniuk – whom perhaps would struggle to justify his wealth if ever subjected to the Lustration Law, as would many of his colleagues.

Under challenge are Part 1 – Clause 6. Part 2 – Clause 2.  Part 2 – paragraph 13.  Part 3 and Article 3.  Thus whilst not striking down the entire Lustration Law, it would certainly seem to hollow it out somewhat.”

No reader will be surprised that there are, even with the most elastic interpretations of the Constitution and Lustration Law, clearly areas where they are simply unable to “rub along”.  Thus eventually the law, or parts there of, will be judged as unconstitutional.

As also predicted, and duly mentioned in an entry of 14th December 2014, the Venice Commission made its discomfort with the law known.

“The Venice Commission has now commented however.  It is suggesting what amounts to a complete revamping of the law and mechanisms surrounding it – unsurprisingly.

Firstly The Venice Commission recommends that body in charge of lustration should be a specially established independent commission – not the Justice Ministry.  It stresses that people’s right to a fair trial -including the right to a lawyer, equal rights of the parties, and the right to be heard in court – should be observed,  and that administrative decisions on lustration should be postponed during the trial until the final sentence is handed out.

Currently the law on lustration fails to contain some provisions dealing with such guarantees of rights.

It also suggests the provisions of the law containing the list of positions subject to lustration should be revised, and that lustration should only apply to those positions that could pose considerable danger to human rights and democracy, and that guilt should be proven in each specific case – it cannot be considered as proven based on an official’s affiliation with a specific category of public establishment alone.

All of which, again, was entirely predictable – so much so it was predicted at the time.

Legislate in haste – repent, repeal and pay reparations at leisure!”

Timeliness is not necessarily something associated with the Ukrainian legislature unless its vested and varied interests are threatened – and due to the prima facie conflict with the constitution, any threats posed by the poorly written Lustration Law for those at the top of the corrupt and nefarious tree may be seen as temporary pending appeals and ultimately successful (including reappointment and reparation) ECfHR rulings as the law currently stands.

With the Constitutional Court reaching its final (and probably unfavourable) conclusions upon the immediate horizon, notwithstanding several pointed comments from the Venice Commission since its “Opinion” has been roundly ignored (the last barbed comment only a few days ago), only now (21st March 2016) have necessary amendments been submitted to the Verkhovna Rada via Bill 2695 that seek to comply with the Venice Commission official Opinion/recommendations .

The submitted draft proposes to quite significantly alter the composition, independence and powers of any lustration body, clearly identify and reduce those positions (and therefore people) able to be subjected to any lustration process.  (This long after many that would now be excluded from the process should the law be amended, having already been lustrated and who are probably now forming an orderly but very long queue at the ECfHR unless they somehow “settle” domestically.)

It is perhaps fortunate – or more than unsatisfactory depending upon a readers point of view – that the lustration process in Ukraine, since the law was passed, like so many policies has not enjoyed systemic and consistent implementation.  Therefore the damage done – or not done – is far from what it was designed to be.  Repercussions have domestically been, and perhaps at the ECfHR will therefore be, somewhat more limited than they should have been/could be.

It remains to be seen just how snugly draft Bill 2695 will meet the “Opinion” of the Venice Commission, (and by default how many unnecessary ECfHR claims will be prevented in the future), or indeed whether the draft Bill will manage to gather the necessary 226 votes to amend all the laws that will require changing – which include the laws “On the cleansing of power” (Lustration Law), “On the recovery of confidence in the judiciary”, “On prevention of corruption”, “On elections of People’s Deputies of Ukraine”, “On elections of President of Ukraine” and “The Code of Administrative Offences.”

At its most fundamental, the conflicting issue is one of “collective justice” which an aggressive lustration would require to “cleanse en masse” post-soviet endemically corrupted institutions swiftly, verses that of “individual justice” that “Europeans” expect from due process – notwithstanding the constitutional issues.

Perhaps the Ukrainian constituency has now replaced the initial (and rightful) rage that demanded more or less unchecked “collective justice” across the swathes of corrupt practitioners within cancerous State institutions in the aftermath of 2014, to that of stoic and unfaltering determination to deal with the problem in a far more “European” way over the long haul.  As Ukraine has clearly still not got to grips with fundamental requirement of upholding the rule of law in a consistent and equitable manner, and until it does there is no solid foundation for any reform or any legislation that emerges from the Verkhovna Rada be it good, bad or counterproductive, a long haul it is certainly going to be.

The question is whether the “Lustration Law” of October 2014 is a policy car crash that has now truly hit the wall with consequences that should have been foreseen but weren’t, or whether those consequences were foreseen with very clear eyes, and the damage caused in the resulting car crash was deemed entirely acceptable in buying sufficient time to partially cleanse the system and partially placate a then raging society?

Whatever the answer, there remains the need for a policy of institutional and political cleansing that meets the expectations of the domestic constituency (first and foremost) and also external supporters of Ukraine – and the current leadership remains far from achieving that.

Nevertheless, the legacy of “Legislate in haste – repent, amend, repeal and pay reparations at leisure”  appears to require facing very soon indeed.

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Ukraine 2016 – The year of international lawfare?

January 10, 2016

2014 was the year that the saw Ukrainian constituency tackle a regime with designs on taking away its right to choose, its dignity, and that had turned a deaf ear to its voice – not to mention a regime that had not only stolen the family silver, but also hocked it for good measure – it was also a year it was then confronted by another external regime that forced the nation to literally fight for its survival.

2015 as stated by the blog at the time, would be a war of governance between Kyiv and Moscow, and Kyiv and the Ukrainian constituency – as well as a continuing war in the nation’s east.

Whilst that battle over governance and the speed of meaningful reform between the political class and the Ukrainian constituency will continue unabated during 2016, as will the war of governance between Moscow and Kyiv, 2016 also heralds the commencement of official economic warefare as The Kremlin decrees what amounts to a trade embargo upon Ukrainian goods not only traditionally destined for the Russian market, but also that which transits through Russia to Kazakhstan and Azerbaijan too.

It has seen Kyiv acting with expected reciprocity for certain Russian goods entering the Ukrainian market, and beginning to use the trade route that will eventually become the Chinese Silk Road/Belt to circumvent Russian territory.

2016 seems also to be the year where lawfare between the two nations will finally be waged – or at the very least lawfare will finally be launched.  As with all matters of law, these things tend to drag on somewhat – so few will expect more than the opening skirmishes to be settled within the same year they are started.

lawfare

Naturally there are already motions in progress to bring the Russian trade ban before the WTO now that the long expected Kremlin reaction to the implementation of the DCFTA with the EU has finally and fully come into effect.

Ukraine has also submitted a formal and official complaint to the European Commission regarding Nord Stream II, which it rightly (prima facie) states fails to meet the requirements of the Third Energy Package (but then neither did the original Nord Stream).  To be clear, there are quite a few Member States that are also very much against Nord Stream II, however it will fall to the European Commission to decide the matter.  At the time of writing, one has to suspect a negative view toward the project.

The Kremlin has also started legal proceedings against Ukraine for failing to pay the $3 billion bond it holds, with Ukraine stating that The Kremlin will be paid if, and only if, it accepts the same debt restructuring as other major credit holders.  Otherwise Ukraine is willing to meet The Kremlin in court.  Ultimately, as such matters are glacial as already stated, Ukraine will probably buy itself another year prior to any payment upon any judgment – somewhat important with a very weak economy and national bank balance – not to mention IMF commitments to meet regarding budget deficits.

On 6th January, Pavlo Petrnko, Ukrainian Justice Minister announced that Ukraine would (finally) launch a large scale action against Russia at the International Court of Justice over the illegal annexation of Crimea and the sponsoring of terrorism in the occupied Donbas.

The claim is likely to be enormous.  There are about 460 State enterprises, 18 oil fields, oil rigs, vineyards and infrastructure – much of which the “Crimean authorities” have claimed to have “nationalised” already.

This notwithstanding, both the state owned Naftogaz Ukraine and Oschadbank are launching their own, separate actions against The Kremlin at the Court of Arbitration in Stockholm.  More separate cases are likely to follow too.

There are also a growing number of individual cases being raised against Russia by over its actions in Crimea and the occupied Donbas that will head to the European Court of Human Rights (albeit Russia has recently passed a domestic law under the guise of “reasserting sovereignty” whereby it may or may not subject itself to ECfHR rulings as is its whim).  To be sure that number of individuals bringing cases heading for the ECfHR will snowball.

It now seems, apparently not wishing to be left out, that the Ukrainian oligarchy are set to follow both the Ukrainian State and thousands of individual Ukrainians in taking The Kremlin to court in 2016.

Ihor Kolomoisky, has commenced legal proceedings at the Permanent Court of Arbitration in The Hague, over Aeroport Belbek LLC, one of his innumerable companies that had the contract to run Sevastopol Airport (until 2020) before Russia illegally annexed the peninsula.  He has listed damages of $15 million.

It will surely be only a matter of time until law suits are raised for the numerous Privat Bank branches lost by Mr Kolomoisky in Crimea too.

How long before, or if, Sergei Taruta and/or Rinat Akhmetov also try to claim for the losses of their Crimean assets, one has to suspect, will probably soon become known.

caveat

Indeed, the current “Prime Minister of Crimea”, Sergey Aksyonov, is attempting to arrange an auction for many of the seized assets of both the Ukrainian State and the oligarchy at the end of January 2016 – A case of caveat emptor for any would-be buyers who would almost certainly find themselves on a sanctions lists somewhere.

Thus, it appears that despite the on-going military warfare in the occupied Donbas, the continuing governance warfare between Kyiv and Mosow, the officially declared start of economic warfare with effect from 1st January 2016, this year will also see the meaningful beginnings of international lawfare – a war that due to the necessities of due process and judicial deliberation, will last well into 2017 (and beyond).

All of course, quite necessary – for if the illegal annexation of Crimea is rightly seen as a challenge and an affront to international law,  then international law will also become a weapon of war in seeking justice.

The big question however, will be which international courts The Kremlin will actually accept as having any jurisdiction?

Will the international courts of arbitration and the International Court of Justice see the same disregard as the ECfHR is likely to see henceforth?  If it becomes necessary to seize Kremlin assets beyond Russian borders, per the Yukos ruling, which States will adhere to the judgements?

The answers will probably begin to become clear in late 2016, and during 2017, when international rulings begin to appear.

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The first of many “wrongful dismissal” verdicts?

May 26, 2015

In October last year, an entry was published questioning the long term consequences that lay await after the “Lustration Law” – “The issue with “OK” legislation for a subject as serious as lustration, is that ultimately European Court of Human Rights appeals may very well result – with rulings granting compensation and strong suggestions of reappointment to follow, thus inflicting Ukraine to needless costs and possibly reinfection of a cleansed (or at least cleaner) system with the possible reinstatement of the corrupt it would have already once removed.”

The following is not a case of “lustration” per se, but nonetheless similar in nature, outcome and quite probably subsequent recourse for many “lustrated” that (whilst quite possibly guilty) where not dealt with correctly nor investigated properly.

This is the summarised case of Interior Ministry, Odessa District Investigator Vitaly Sofiyanik, sacked by the Ministry of Internal Affairs (not prosecuted in any way) for “separatism”.

The evidence employed to justify his sacking, a VKontakte social media account under the name Vitaly S, which displayed an avtar of the St George ribbon, a symbol that since last year has sadly become as associated with “separatists (and Kremlin fighters)” as it has with war veterans and those that sacrificed themselves in the fight against Nazi Germany.  The St George ribbon avtar was annotated with the word “Riot”.  The Vitaly S VKontakte account was also a member of the social groups “Odessa People’s Republic”, “South East Federation” and “Antimaidan”, all of which were anti-Kyiv and/or pro-Kremlin.  All ultimately failed in Odessa due to a severe lack of public interest in their cause(s).  There were also cartoon entries mocking the MIA and a displaying photographs of Sevastopol “2014, Russia”.

The 2007 VKontakte account of “Vitaly S” was exposed as indeed being a VKontakte account of Vitaly Sofiyanik, MIA District Investigator, by local journalist Dmitriy Bakaev, on “Circle TV”, a local television station in Odessa.

So far, so circumstantially condemning – thus the sacking of District Investigator Sofiyanik, by the MIA swiftly followed – creating a vacancy, subsequently filled, at his Suvorov station.

Mr Sofiyanik then appealed to the Odessa courts for wrongful dismissal – claiming in court that as a District Investigator, he had used the VKontakte account to infiltrate the separatist groups in an attempt to obtain intelligence and evidence.

If that be true, then he was certainly not alone in pursuing that line – the SBU, militsia, intelligence personnel attached to embassies and consuls were all trawling the social networks for “persons of interest” and any apparent signs of an “up-lift” in “separatist” sympathies.  No doubt amongst all that trawling a few other SBU and militia run VKontakte accounts also joined these aforementioned social groups for exactly the same intelligence gathering reasons.  Infiltration, infiltration, infiltration (though hopefully not agent provocateur).

Indeed, there are several marketing companies in Odessa that run a stable of fictitious VKontakte accounts across all demographic lines, carefully building each profile a history/legend and joining certain social groups.  These marketing companies then subtly employ these profiles to promote this or that – often having approving conversations over a product amongst the fake profiles for others to read and “take the bait”.

The upshot is that the Odessa District Administrative Court has now found in favour of Mr  Sofiyanik, accepting his version over the VKontakte profile, thus ruling that the MIA unlawfully sacked him and that he is to be reinstated – with UAH 11,800 back pay.  Judge Igor Zavalniuk stated that the MIA Commission’s conclusions “are based on assumptions and are not backed by facts.  The presence of the image of St. George’s ribbon, as well as accommodation in the photo comic material relating to the Minister of Internal Affairs of Ukraine, as well as photos of Sevastopol 2014 – Russia, cannot testify to support the separatist manifestations, or constitute actions which undermine the credibility or discredit the bodies of internal affairs.”

The learned Judge may indeed be quite correct.  What chances of a genuine and thorough internal investigation/discipline hearing within a still very politicised MIA – particularly to is those early, most volatile of days.

Questions therefore arise over the breadth of “discretion”, and the “depth” of confidentiality within which District Investigators work as individuals, and, of course, any oversight and supervision that District Investigators may or may not have, in what remain highly corrupt and Kremlin infiltrated institutional systems.

Perhaps others were aware of Mr Sofiyanik’s well-meaning actions but, as with the poorly crafted “Lustration Law”, when matters were exposed and likely to cause (perhaps violent) public disquiet, the man was sacrificed for the sake of “peace and stability”.  Something had to be seen to be done – and swiftly.

Maybe, in the still unreformed Odessa Courts, this verdict was simply “bought”.  Then again, as the MIA can appeal the decision, perhaps such a practice would be deemed too risky – for surely “lustration” will eventually reach the Odessa judiciary in a far more meaningful way than that which has so far taken place.  A decision reached purely upon the evidence (or lack thereof)?

Will the MIA appeal?

If the MIA do appeal and win, then it’s off to the ECfHR the case will go, adding yet another case originating from Ukraine to an already disproportionately high number – and as stated in the entry linked within the very first line of these ruminations, it will find company amongst numerous procedurally flawed/evidence lacking “lustrations” that will also head to Strasbourg.

If the MIA doesn’t appeal, then either justice for Mr Sofiyanik has been done, or there is a cancerous cell returning to a still  infected/infiltrated institution.

It is not a question of whom to believe, it is a question of the burden of proof and reasonable doubt, ladies and gentlemen of the jury.

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Taking back the judicial space – The Constitutional Court speaks out

April 15, 2015

A long, long time ago, at the beginning of October 2014 to be more precise, an entry appeared here regarding the poorly written “Lustration Law”, foreseeing all sorts of constitutional issues, and ultimately ECfHR cases as a result.

The entry concluded thus – “Is it a good idea to accept the “OK” when the “good” can be achieved – or a sensible thing to introduce the “OK” when the need to tackle the “bad” is absolute and immediate in the minds of the electorate?

President Poroshenko stated “I am confident that the given law is rather more positive than negative and it will make Ukraine better.” – Maybe so, maybe not.”

Indeed, constitutional challenges were made regarding the aforementioned badly crafter law, as was anticipated – “Under challenge are Part 1 – Clause 6. Part 2 – Clause 2. Part 2 – paragraph 13. Part 3 and Article 3. Thus whilst not striking down the entire Lustration Law, it would certainly seem to hollow it out somewhat.”

Now the issues within the legislative text sit before the Constitutional Court of Ukraine, as indeed they should – but not before the Venice Commission made comment upon the “Lustration Law” in December of 2014 – “Firstly The Venice Commission recommends that body in charge of lustration should be a specially established independent commission – not the Justice Ministry. It stresses that people’s right to a fair trial -including the right to a lawyer, equal rights of the parties, and the right to be heard in court – should be observed, and that administrative decisions on lustration should be postponed during the trial until the final sentence is handed out.

Currently the law on lustration fails to contain some provisions dealing with such guarantees of rights.

It also suggests the provisions of the law containing the list of positions subject to lustration should be revised, and that lustration should only apply to those positions that could pose considerable danger to human rights and democracy, and that guilt should be proven in each specific case – it cannot be considered as proven based on an official’s affiliation with a specific category of public establishment alone.

All of which, again, was entirely predictable – so much so it was predicted at the time.

Legislate in haste – repent, repeal and pay reparations at leisure.”

Thus before the Constitutional Court sits a law that will clearly not find much favour within the ECfHR (considering the comments of the Venice Commission) when thousands of cases make their way forward for consideration should the Constitutional Court allow it to stand – or it is a law that it can rule as, in full or in part, is unconstitutional, ergo, requiring recompense and perhaps reinstatement for many.

(We may ponder, indeed, whether there is mileage in the creation of a temporary “Ukraine Division” within the ECfHR, not simply for internal cases that may make their way in large numbers, but also when Ukraine v Russia cases reach the Strasbourg.)

Perhaps the State will offer those already subjected to “lustration” the option to accept the outcome of that act (which meant most quietly kept their ill-gotten gains upon sacking or resignation), or upon reappointment be subject to criminal corruption investigation where ill-gotten gains will possibly be taken by the State.

However, despite knowing just how poorly crafted the “Lustration Law” is, it appears that some MPs, even government ministers, and law enforcement figures have called, via the media, for a public turnout/protests/petition at the Constitutional Court when the “Lustration Law” goes under the constitutional microscope.  Something that the Constitutional Court has not taken kindly to.

The Constitutional Court has taken the view that such acts (together with others mentioned below) are an attempt to intimidate the court.

“9-10 April media distributed by individual MPs, public figures and law enforcement officials. accusing judges of the Constitutional Court, threats of their prosecution and engagement, appeals to citizens to assemble at the walls of the Constitutional Court on the day of the examination of the referred case.

On the eve of the consideration for such a sensitive public affair, around the sole body of constitutional jurisdiction, artificially there is created a situation of tension and mistrust. It is, in fact, to intervene in the activities of the Constitutional Court, namely the obstruction of the court cases on the constitutionality of certain provisions of the law “On cleaning power”.

Attempts by politicians to extend compromising information concerning the professional activities of judges, calls for rallies and demonstrations under the walls of the Constitutional Court are nothing but pressure on the court. Recall that influence judges in any manner prohibited by Article 126 of the Basic Law of Ukraine.

Any pretrial conclusions or assumptions, including by law enforcement authorities or the media is nothing but pressure on the judges sole body of constitutional jurisdiction, which is prohibited by the Constitution of Ukraine.”

Naturally there is a right of assembly, and a right of expression for those that assemble, in answer to any calls made by the legislatively illiterate that crafted the “Lustration Law” – and they may rightly gather in support of the spirit behind the law, but that will not made poorly crafted legislation suddenly well crafted legislation.

The Constitutional Court will fail in its duty if it does little more than raise a learned eyebrow.  There is now a very visible opportunity for the judiciary to take a step in retaking its rightful democratic space – and as the statement from the Constitutional Court above makes clear, keep the oversized political feet off of the manicured judicial lawns.

Should the Constitutional Court find unconstitutional fault with the “Lustration Law” (and it’s hard to see how it won’t), then those gathered would be perhaps wiser to raise their ire toward the retarded legislature that created such an unconstitutional law, rather than the court.

With all “volunteer battalions” now legitimately within the National Guard, and thus The State retaking its place as holding the monopoly on force in society, it is now time that the judiciary take the opportunity to reclaim its democratic space, so often stomped upon, perverted, and abused by the political class historically.

The State must be prepared to lose within its own legal system if its legislators are not capable of crafting clever legislation that remains constitutional, within Ukraine’s internationally ratified obligations, and meets the requirements of society – and to be blunt, most Ukrainian legislators are not capable.

If this law, in part or in full, is deemed unconstitutional, society would be wise to appropriate the cause where is duly lies – with the legislature and not the judiciary.

* * * * * * * * * * *

Post Script:  Blog entries will become somewhat ad hoc/erratic for the next month despite what will undoubtedly be the usual succession of (dramatic) successes and failures within and without Ukraine, for your author is engaged upon something of a mini-tour of Europe which is unfortunately not all play.

There may also be several “guest author” entries that will undoubtedly be far more informative, witty, and well written than your usual read here.

By mid-May, hopefully, the daily, dull, normal service, will have resumed.

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14th January 2015 and the New York Convention 1958

January 10, 2015

Today there is a note in the dairy – It reads “ICA, NYC, $50B, Yukos” – Yes a written diary.  I also like books – printed books.  And quality fountain pens.  And other such antiquities in this modern era.

Anyway, having yesterday mentioned the gargantuan sum of $50 billion proposed by George Soros to throw at Ukraine, its economy and its reforms, today the figure of $50 billion remains relevant for the purposes of this blog, per the diary – but in an entirely different way, and with very little to do with Ukraine directly.

On the 18th July 2014, the International Court of Arbitration at the Hague, in three judgements – here, here and here – awarded damages/compensation from the Russian Federation to those who were formerly involved with the now defunct Yukos, totaling $50 billion.

The Kremlin/Rosneft/Russian Federation – if they can be separated in any meaningful way – naturally had the right to appeal and have all or part of the verdicts set aside.  Despite appeals, as of the time of writing, it has failed to do so and $50 billion remains the total award.

It goes without saying that it is unlikely that the Kremlin will pay the $50 billion, even in part – particularly as acknowledging wrongs done to – and compensating to the tune of $ billions – Mikhail Khodorkovsky will simply not be entertained.  Even more so as Mr Khodorkovsky is busily attempting to build up some institutional competence around him preparation – it appears – to return to Russia and save it when the fall of President Putin eventually arrives.

That Mr Khodorkovsky, just as fellow oppositionist Mr Navalny, are not what Russia needs to replace Mr Putin, for now is not the point.  Suffice to say replacing one personality cult with another is hardly likely to be helpful if a liberal democracy is the desired outcome.  If another Tsar with a slightly different philosophy is the desired outcome, then Messrs Khodorkovsky or Navalny indeed fit the profile.  Regardless, in the absence of any genuine liberal Kremlin opposition, these two men, together with Boris Nemtsov and Sergei Udaltsov are about all there really is.  (What ever happened to Udaltsov? – Very quiet of late.)

Whatever the case, it is extremely unlikely that The Kremlin will pay, which brings us to the “Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958” – or The New York Convention as it is better known.

As a result of its nefarious activities when applying rule by law to acquire and butcher Yukos – and then suffering when international rule of law is then latterly applied – there is also little to no chance of State owned/majority owned assets being seized in lieu of compensation within the Russian Federation – which is where the New York Convention comes into play for the aggrieved parties.

To keep things brief, The New York Convention obliges the 150 nations that are ratified to this international instrument to seize assets to fulfill the rulings of the International Court of Arbitration – less diplomatic missions and military assets.  However, planes, trains, ships, art, NBR assets, antiques etc., owned by the Russian Federation or its State owned enterprises can – and are obliged to be – seized to the total value of $50 billion, as stated by the court, from amongst the 150 ratified nations.

This obligation coming into effect 180 days after the final ruling.  Thus the 18th July Hague ruling comes into effect on 14th January – next Wednesday – on the proviso that all pending appeals have been dismissed.

On 16th December, the European Court for Human Right dismissed the Kremlin appeal – there being no courts of higher ranking in Europe, it would seem that is the end of that.  The only question now being, is the 180 day clock commenced from 18th July, or reset to that of the 16th December when the appeal was dismissed?  If reset, then that delays asset seizure until 14th June 2015 – at which point an already tetchy and irritable Kremlin will start to witness – if the process doesn’t begin on 14th January per original ruling date – its assets to the tune of $50 billion begin to be seized globally – and legally.

None of this has anything to do with Ukraine – unless it is requested to seize assets on behalf of the injured parties, which considering its own pending and continually mounting claims against the Russian Federation, it would not only legally be obliged to do as a ratified signatory to the New York Convention, but also morally, if it expects the same international willingness to enforce the law, when its claims against The Kremlin are eventually heard and court rulings delivered.

Regardless of whether 14th January, or 14th June be the effective New York Convention date, one wonders whether those representing the injured parties have already scanned the globe identifying Kremlin owned assets for seizure and all associated bureaucratic documentation is penned waiting only to be dated and submitted.

Interesting times, as they say.

A note made for 14th June in the diary stating “ICA, NYC, $50B, Yukos”has been made just in case – at which point this issue will once again appear in the blog a few days prior to bureaucratic and legal requirements having been fully observed.

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The first political own goal of the year – Turchynov

January 2, 2015

It didn’t take long for the first retarded/counterproductive political statement of 2015 to arrive – and it came from The Secretary of the National Security and Defence Council, Olexandr Turchynov, who called for the removal of the broadcasting license of the Inter TV station, after it aired New Year celebrations that included performances by artists that are persona non grata (either de facto or de jure) in Ukraine following comments and actions they have made regarding the nation during 2014.

His view, that Inter should have its broadcasting license revoked immediately having made “a mockery of the whole country“.

We are to assume that all celebrities whose actions and/or comments that have been deemed anti/detrimental to Ukraine are to be thus cleansed from Ukrainian television screens and radio?

Would, for example, MTV be forced to remove such artists from their play list?  Will all TV channels be forced to stop showing the continual reruns of Kremlin-friendly “Z-listers”, such as Steven Seagal movies?  (If so, would Van Damme, Lundgren and other god-awful Z list actors forever being broadcast in Ukraine, kindly say or do something to also be removed from our screens.)

Seemingly, the 45 million people of Ukraine are not capable of changing the television channel if there is something or somebody being broadcast they don’t particularly like.  The population are also apparently incapable of separating an artist’s performance from any personal opinions/propaganda that they may spout in the media.  The nation, it appears, need rely on the paternalistic instincts of Olexandr Turchynov and his  National Security and Defence Council when it comes to what they can or cannot, should or should not be allowed to view.

The New Year Inter broadcast was not even close to anything likely to incite or inflame Ukrainian society.  It was just the usual parade of the mostly talentless – and in some cases, intellect-less too.

In the unlikely event of Mr Turchynov (and the NSDC) actually attempting to remove the broadcasting license of Inter, he would do well to consider the ECfHR rulings relating to incitement and the media prior to any such attempt, should he wish to portray a European image, rather than a media controlling Kremlin image:

“… tolerance and respect for the equal dignity of all human beings constitute the foundations of a democratic, pluralistic society. That being so, as a matter of principle it may be considered necessary in certain democratic societies to sanction or even prevent all forms of expression which spread, incite, promote or justify hatred based on intolerance……..the Court is also careful to make a distinction in its findings between, on the one hand, genuine and serious incitement to extremism and, on the other hand, the right of individuals (including journalists and politicians) to express their views freely and to “offend, shock or disturb” others.” –  (Chamber judgment Erbakan v. Turkey, no. 59405/00, § 56, 6.07.2006)

There are issues regarding the relationships of those that own Inter with the Kremlin security agencies for sure – but this has been known ever since the channel was bought in February 2013.

Inter

Thus this is not a surprise to anybody – it has long been known.

Indeed, Mr Firtash has connections and contacts with numerous intelligence agencies – directly and indirectly.  For example, his relationship with our “friends” from Vauxhall Cross is no secret.  That he was sat taking tea at the Foreign Office in London a few days prior to the US unsealing his indictment is also known.  That the US waited for his return to Austria before unsealing its indictment is diplomatic nicety toward London.

None of the above, however, is why Mr Turchynov will fail to win in his quest to remove the Inter broadcasting license immediately (if ever).  For him to be successful, it would seriously destabilise the power game behind the Ukrainian curtain – the 3 way chess match between Poroshenko, Kolomoyski and Firtash/Liovochkin – and it is for this reason he will fail to sink Inter for the foreseeable future.  It is certainly not in the interests of President Poroshenko to break this current structure at this moment in time – whatever the (perhaps rightful) moral outrage felt by Mr Turchynov and others.

Let us be very blunt – If President Poroshenko and Prime Minister Yatsenyuk saw nothing to be gained by allowing the Firtash/Liovochkin partnership continued access to the Ukrainian political sphere then that access would have been denied – somehow – prior to the RADA elections in October 2014.  That Mr Liovochkin and the Opposition Block are in the RADA (and there is no denying that the Opposition Block is far more closely aligned to interests of The Kremlin than any other party sitting) displays the results of a decision to (wisely) include them.

It therefore follows, having directly included the Firtash/Liovohkin influence in national legislature, that their Inter media outlets are not about to be taken off air simply for having broadcast a New Year programme that included a string of third rate celebrities who have managed to draw the ire of much of the Ukrainian political class, together with a notable number of the Ukrainian voting constituency – woeful as those third rate celebrity performances undoubtedly were, and will continue to be.

Of course Mr Turchynov is well within his rights to express his distaste that Inter broadcast such celebrities with dubious opinions about Ukraine, to see in the New Year broadcast across the nation – as are we all equally allowed to express such distaste in a democracy.

However, that he, as an experienced politician, only very recently being appointed to the office of Secretary to the National Security and Defence Council, called for the channel to have its license immediately revoked because it made “a mockery of the whole nation” is a legally and democratically weak argument to say the least.

Prima facie it may well play to the populist cause – but in doing so it almost certainly inflicts upon him an entirely unnecessary political defeat when Inter remains on air.  Further populism is not what Ukraine needs in 2015 if it is to make genuine progress toward anything worth having in the years (and generations) to come.

Further, Mr Turchynov is very much aware of what goes on, and is going on, behind the curtain – which therefore begs the question as to why he went so far as to publicly call for the Inter license to be immediately withdrawn, instead of going no further than venting a perhaps rightfully indignant rant or two.

The first entirely needless political own goal by a major Ukrainian politician in 2015?  It appears so.

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