Ukraine’s Bar Under Fire

Halya Coynash

Ukrainian advocates have become the latest targets in a concentrated drive over the last three years to create a malleable and dependent judiciary. The measures being applied to remove dissident voices and intimidate others bear stark resemblance to those that have already succeeded in Belarus.

With the latest crisis to hit Ukraine’s already beleaguered justice system involving advocates skilled in arguing their case, an outside observer could feel tempted to simply leave them to it.  For many that seemed the only option back in November 2012 when a founding congress of Ukrainian advocates effectively split into two with both congresses claiming sole legitimacy.  Looking away, however, ceases to be an option when adversarial eloquence is replaced by an arsenal of disciplinary measures, and opponents of the body with official backing have their licences revoked and could even face criminal proceedings.

These measures have prompted statements of concern from the Ukrainian Helsinki Human Rights Union, and Belarusian former advocates.  The latter’s response is of particular poignancy since they are now speaking out in defence of Ukrainian colleagues who supported them in a similar battle in 2011.

The battle in Belarus was effectively lost making their words of warning particularly chilling.

As of May 2013, at least 20 Ukrainian advocates, some of them prominent members of qualification committees, etc, have been stripped of their licence and one or two threatened with criminal prosecution.  All were involved in what is now called an “alternative congress of Ukrainian advocates” on 17 November 2012 at the Kinopanomara Cinema.  The term “alternative”, however, is as much in dispute as the legitimacy of the original congress, scheduled and held in the Rus Hotel.

In an open appeal on 23 November 2012, advocates from the Kharkiv oblast delegation stated that there was in fact one congress organized by the High Qualification and Disciplinary Bar Commission which was forced to continue its work at Kinopanorama after the Congress was effectively hijacked by a group of Kyiv and Donetsk advocates.  The authors assert that this group carried out selective registration of participants in the Congress and that there were blacklists used by unidentified individuals at the entrance to stop certain advocates from getting in.

This scenario, it should be noted, was seen in December 2011 following mass protests throughout the country by former Chornobyl clean up workers.

Precisely such means were used to ensure “election” of certain more malleable figures to the leading positions in the Chornobyl Union of Ukraine. This basically reduced and marginalized a protest movement which enjoyed strong public support.

On 17 November some of the advocates stayed at the Rus Hotel Congress and apparently elected Lidia Izovitova Head of the National Association of Ukrainian Advocates. Various media publications had suggested prior to the congress that iLidia  Izovitova, who is Deputy Head of the High Council of Justice had strong backing from Andriy Portnov in the President’s Administration.

According to the Kharkiv oblast advocates, most of the delegates to the founding congress – 20 delegations from different regions – took the decision to hold the congress at Kinopanorama.

That congress unanimously elected Volodymyr Vysotsky, for many years head of the High Qualification and Disciplinary Bar Commission and a practising advocate.

Various delegates from that congress have also publicly criticized certain aspects of the Law on the Bar.

Whose unbefitting conduct?

On 5 April 2013 the Kyiv Qualification and Disciplinary Bar Commission stripped Volodymyr Vysotsky of his licence to practise as an advocate.  As reasons it cited his participation in the “alternative congress” and his having publicly queried certain decisions taken.

He is not by any means the only participant of the congress held in Kinopanorama to have had their licences revoked or have faced other disciplinary measures.  One court ruling has even spoken of actions of a criminal nature.  A tentative list of those who have thus far faced such penalties is given in the UHHRU statement.

Advocates who openly express views critical of the “official” line appear to also be coming under fire. According to the Internet publication Yuridicheskaya Praktika, opinions expressed to the media are leading—in depressingly Soviet style—to complaints provided by obliging advocates to the Head of the High Qualification Commission.  Now it would seem, advocates writing on social networks may also be targeted.  Letters are shown from one Kyiv advocate, Andriy Tsyhankov, and an approving response from Lidia Isovitova.  Tsyhankov expresses indignation over the supposedly inadmissible language and offensive statements expressed on such networks and demands that measures be taken.

And in Soviet style, we can assume that “measures” will be taken until most advocates are cowered into silence or prevented from practising their profession.

In the above-mentioned letter of support, former Belarusian advocates wrote that the indifference of most advocates in Belarus had allowed a disastrous new Law on the Bar to be passed which strips advocates of their independence and “turns the Bar in Belarus into a structural department of the Justice Ministry.”

The results of the 2010 “judicial reform” in Ukraine have already been catastrophic, with judicial independence seriously curtailed and an acquittal rate dangerously near zero.  Judges who acquit defendants, cite European Court of Human Rights case law, etc, can face disciplinary measures; accusations of breach of oath (leading to dismissal).  A major role in this is played by the High Council of Justice of which Lidia Izovitova is Deputy Head.

The stark words of warning from Belarusian advocates should not be ignored. Close attention and support from advocate organizations in other countries, and all those who want to see rule of law in Ukraine are urgently needed.

To Ukraine, with Love [or] Russia’s Comedy Show

Mykola Riabchuk

Last week, Russian president Vladimir Putin set another record, answering citizens’ questions in a televised Q & A session for five hours. The show was staged well, so that no uncomfortable or unexpected questions could offend the tsar’s ears.

Many participants actually strove not so much to ask their president anything but rather to express their gratitude for his wise and benevolent politics. A Paralympics swimmer thanked him on behalf of all Paralympics athletes for taking care of their needs, a local teacher praised the president for his tireless care of the nation’s morale, and a vice president of the association of Arctic researchers expressed his gratitude for support and, in part, for drafting a decree by which the President made May 21 the Day of Arctic Researchers.

Putin’s answers ranged from traditional castigation of petty bureaucrats (one of them was labeled a “pig” for his unresponsiveness) to no less traditional crude jokes (a poor Arctic researcher who asked him to speed up the formalities hindering the official introduction of their professional holiday, was advised to “start celebrating it right now and we’ll sign the decree when we are ready).” In his usual way, Mr. Putin dismissed “Russia’s negative image abroad” as a “stereotype imposed on the world public” by unspecified enemies, and lambasted the arrogant West for its desire to impose very dubious values and standards upon Russia. Rather than discussing issues like human rights, civic freedoms, and rule of law in the session, the emphasis was primarily and exclusively on the issue of sexual minorities, presented by the president in his favorite caricatured way: “You know, they have their own standards… If a Dutch court allowed the activity of an organization popularizing pedophilia, why should we adopt such standards? If they want to reproduce themselves through immigration, let them do so. We are not meddling with their affairs” (http://www.itar-tass.com/en/c549/719682.html).

Ukraine was mentioned only twice in the session, and in both cases Putin’s responses seemed very friendly. First, the Paralympics swimmer complained about the lack of training facilities: “These swimming pools exist in Europe and even the Ukrainians have them and are we in any way worse than them?”

“In some ways, Ukraine is better than us,” Mr Putin admitted generously. “I love Ukrainian culture, the Ukrainian people, they’re a part of our collective soul. What’s so surprising that they’ve overtaken us in some areas?”

One may guess in which other areas the smart Ukrainians have overtaken the “older Brothers,” and how the privilege of being a part of Russia’s collective soul corresponds with the idea of “Russkiy Mir” and with Putin’s earlier statement that Ukraine “is not even a nation.”

Answering the second question, about Ukraine’s prospective membership in the Customs Union, the Russian president assured the audience that Ukraine itself and its people should reach a position on the issue, and that Russia would respect any decision. He reminded the audience only that the Ukrainian and Russian economies are linked through extensive cooperation, and its rejection would lead to irreparable losses for both countries. “Whereas Russia might be able to recover these losses somehow, for Ukraine it would be extremely difficult. I fear that this could lead to de-industrialization of some industries… According to our estimates, [Ukraine would lose] 9-10 billion dollars a year” [http://en.for-ua.com/news/2013/04/25/154810.html].

Remarkably, neither the source nor details of these encouraging estimates have ever been disclosed. In the meantime, two other countries that have already joined the Russia-led Customs Union, do not appear very enthusiastic about their newly-acquired experience in the organization. The estimates of Ukraine’s gains and losses should it sign the Deep and Comprehensive Free Trade Agreement (DCTFA) with the EU are much more modest. The first years, specialists argue, would bring rather mixed results even though eventually the net balance of benefits versus losses would grow noticeably and sustainably. But still, it largely depends on Ukraine’s ability to use all the venues and instruments that DCFTA provides to reform its economy, legal system, and society in general. In a way, DCFTA is much more about the fishing rod than the fish, and this makes it profoundly different from the Customs Union incentives generously offered by Mr Putin (http://www.ceps.eu/system/files/simplenews/2011/05/NWatch88.pdf).

Not all Ukrainians understand the economic subtleties of both unions, and not everyone is ready to take a fishing rod instead of the real (or virtual but real-looking) fish. Two years ago 44 per cent of Ukrainian respondents preferred Ukraine’s accession in the EU, 30 per cent preferred the Customs Union, and the rest opted for non-secession or had no clear opinion (http://news.dt.ua/POLITICS/bilshist_ukrayintsiv_viddae_evrosoyuzu_perevagu_pered_mitnim_soyuzom-89632.html. Today the first group that prefers the EU has shrunk to 41%, while the  group, supporting the Customs Union has grown to 36% (http://www.razumkov.org.ua/upload/Ukraine-2013_eng.pdf).

The Russian “fish”, however, has a price – as one can easily figure out by taking a look, for example, at the “float for gas” deal (the so called Kharkiv Accords) gullibly signed in 2010, shortly after his election, by Viktor Yanukovych. Even if the mythical figure of $10 billion per year is going to materialize, it would most likely end up in the pockets of the “Family” members and friendly oligarchs rather than in any viable program of national modernization. And this is the point. Any Russia-led union means preservation of today’s inefficient, corrupt, and incurably backward economy for years to come. And, to be sure, it entails also a continuing disrespect for human rights, civic liberties, and rule of law (http://www.pravda.com.ua/articles/2013/02/18/6983699/).

So far, the enormous natural resources have not helped Russian kleptocrats to modernize the country (http://www.rf-agency.ru/acn/reiting_ru.htm), and there is no reason to believe that the union of Ukrainian kleptocrats with their Russian, Belarusian, and Kazakh brethren would benefit anyone other than themselves. The myth of Russia as a rising economic power on a par with China, India, and Brazil (so called BRIC) was shattered by the global crisis that proved the inefficiency of corrupt institutions and a resource-based economy. As the experts of the European Council of Foreign Relations aptly noticed in the policy paper “Dealing with a post-BRIC Russia,” “few still have any illusions about Russia’s resurgence and many now fear stagnation and “Brezhnevization.” In other words, regardless of Putin’s assertive rhetoric, Russia is now a “post-BRIC state” (http://www.ecfr.eu/page/-/ECFR44_RUSSIA_REPORT_AW.pdf).

This decline, they argue, forces Moscow to “pursue a more cautious foreign policy. In particular, diminished economic expectations and the increased presence of other actors in the region have seen Moscow craft a new strategy for the post- Soviet space. Though it has not given up its hegemonic ambitions, expressed in Putin’s proposal for a Eurasian Union, Russia now aims for a lower-cost sphere of influence. It is deploying limited resources selectively to create a kind of “lily-pad empire” – a network of military bases, pipelines and strategic chunks of national economies that clearly clashes with the EU’s own neighborhood policy.”

This might well explain Putin’s worry about leaving Ukraine outside the Customs Union and facing deindustrialization and annual losses of $10 billion. As to his peculiar “love” for Ukraine, one may recollect an old Soviet joke: “Gogi, do you like tomatoes?” – “To eat them – yes, but otherwise – no.”

A perfect example of this kind of “love” was demonstrated recently by popular Russian TV presenter Ivan Urgant on the show Smak (The Taste), which runs on the state-owned Channel One and in which he interviews celebrities while cooking with them. Recently, he provoked uproar in Ukraine by a humorous comment made during the preparation of a soup: “I chopped these greens like a red commissar did the residents of a Ukrainian village.” His interlocutor, the celebrated screenwriter Aleksandr Adabashyan, wiped the knife clean and responded with similar wit: “I am just shaking off the villagers’ remains” http://www.rferl.org/content/russia-ukraine-comedian-massacre/24961740.html.

Thank God, they did not refer to gas chambers.

Forced to apologize, Urgant confessed, probably quite sincerely, that he “could not imagine that the unfortunate joke in a humorous program… could spark such an acute reaction in Ukraine, a country I love very much.”

It’s a pity he did not feature Mr. Putin in his anecdote.

Canned Democracy

Halya Coynash

It was a bad week for democracy in Ukraine with formal democratic processes as close to the real thing as canned laughter on a TV show to genuine mirth.

The door to Europe, and specifically the EU-Ukraine Association Agreement was all but slammed shut by the rejection on Wednesday of former Interior Minister Yury Lutsenko’s cassation appeal.  Ukraine’s High Specialized Court upheld the outcome of a trial, which, as repeatedly pointed out by the EU and the democratic community, “did not respect international standards as regards fair, transparent and independent legal processes.”

Rule of law was just as removed from a courtroom in Zaporizhzhya, which on 2 April convicted two former sacristans of the Svyatopokrovsk Church and the brother of one of them to 15 and 14-year prison sentences over the bomb blast in the Church on 28 July 2010.  Judge Minasov ignored the fact that there was no evidence in the case aside from multiple “confessions” made without proper defence, and almost certainly under physical and psychological pressure.  The confirmation of this by two forensic psychologists was ignored, while a third report which interpreted smiles, gestures etc during the night interrogations as evidence of an “inclination to crime”  was quoted in detail in the judgement.  Minasov had rejected applications to have all forensic psychologists summoned to give evidence.  The list of irregularities in this case is as long as that in the trial of Lutsenko, and widely believed to be linked with the fact that President Yanukovych at the time demanded arrests within the week.

In both these cases, as well as the ongoing attempt to charge former Prime Minister Yulia Tymoshenko with murder, few believe that the judges – or prosecutor – in the cases are acting autonomously.

The case against Tymoshenko encountered a bump on 2 April with a key witness Serhiy Taruta testifying that at the time of the killing of MP and businessman Shcherban, there was no conflict between him and Tymoshenko.

The case is so dodgy that inconvenient bleeps may not overly worry those pulling the strings.  Renat Kuzmin, Deputy Prosecutor General, whose trips abroad to justify the trials of opposition leaders are organized by such PR companies as Burson-Marsteller, will simply accuse all critics, including authoritative western observers of defamation if they suggest any political motivation.

There were plenty of other uncomfortable subjects during the week.  They included the President’s income declaration which, for the second year in a row, declared 15 and a half million UAH in “royalties.”  The latter must be understood very loosely since the President did not publish a single word in 2012.  In fact, had he published even one book the royalties received per word would quite possibly outdo many international bestseller writers. The amount would also instantly bankrupt most publishing houses, at least in Ukraine.  Not, however, the Donetsk publisher Novy Svit which in 2011 paid 16.4 million UAH for all President Yanukovych’s works, past, present and future.  It now transpires that this was only the first instalment of an ongoing fee.

The use of the rightwing VO Svoboda Party to present the Party of the Regions as antidote to creeping fascism and xenophobia had a novel application on Wednesday with a number of Svoboda activists detained by police in Kyiv and interrogated for many hours.  The events had seemed to promise high drama with a Party of the Regions MP Iryna Horina reporting on Tuesday that after the close of the Verkhovna Rada’s evening session she and other women MPs had been pelted with snowballs, ice and dirt by members of a political protest.  She later apparently claimed that there had been an attempt to kill her.

A criminal investigation is underway, and the police felt no need to follow the restrictions of the new Criminal Procedure Code on how many hours witnesses can be interrogated. From a PR point of view, a trial would be as much of a loser as trying now to bring charges of hooliganism against the young man who so famously felled the then presidential candidate Viktor Yanukovych with an egg in 2004.

Thursday was a full-on day for Ukraine’s MPs though few of the events bore much relation to parliamentary democracy.  With the opposition continuing to block the Verkhovna Rada tribune, the Party of the Regions, Communists and others who vote with the government decided to attempt a kind of outreach parliament – in the premises of the parliamentary committees on Bankova St.   There was supposedly a vote on this with 244 in favour (226 is a simple majority), however leader of the Batkivshchyna faction in parliament, Arseny Yatsenyuk asserted that only 168 MPs were actually present.

It was one side’s word against the other’s since opposition MPs were not allowed into the building on Bankova St.

Interpretation of the Parliamentary Regulations also depends on which side you listen to, and how one is to understand “exceptional circumstances”.

This is of enormous importance since the pro-government MPs (in person, or in name and MP card alone) managed to vote on 22 laws, one of which changed the 2013 State Budget.  All of this without open discussion and without the presence of the opposition who numerically cannot override a government vote, but can at least point to dangers in the laws passed.

What is particularly disturbing is that analysts asked by the Deutsche Welle Ukrainian Service considered the votes to be illegitimate, but were not at all confident that they would be revoked. Former MP Yury Klyuchkovsky pointed out that there had been similar situations during the 2000s and the laws passed, however dubiously, remained in force.  The Constitutional Court then refused to consider submissions from MPs asking for the laws to be declared unconstitutional.  In this regard it’s worth noting that the Constitutional Court in March for the fourth time refused to consider the highly controversial language law signed into force by President Yanukovych in August 2012.  This law effectively ignores the constitutional norm stipulating that Ukrainian is the sole official language and significantly increases the role of the Russian language.

Another specific smell from Ukraine’s parliamentarianism comes from turncoats or, in the Ukrainian, “tushki” (carcases).  On Thursday Speaker Rybak announced that four Batkivshchyna faction MPs had changed sides.  Interpretation of motives and / or incentives will inevitably depend on whose version you trust, however the phenomenon cannot under any circumstances be considered healthy.

It is also difficult to see it as democratic. Even during the last elections where 50% of the candidates entered parliament on party lists and 50% stood for election on an individual basis, the vast majority of voters would have voted for the party.

If MPs can then choose where the grass for them is greener, the voters’ electoral choice is rendered meaningless, like so many other fundamental components of democracy increasingly treated as cosmetic props.

Where Optimists and Pessimists Meet

Mykola Riabchuk

Three years ago, when Viktor Yanukovych was narrowly winning elections over Yulia Tymoshenko, very few people predicted future developments that would result in the full usurpation of power by a well-organized and extremely resourceful group of unscrupulous rent-seekers. It was an open secret, both then and now, that many regional bosses had a criminal past. Hennadiy Moskal, a former deputy minister of internal affairs, maintains that there are at least 18 of them in today’s parliament, all of them in the Party of Regions faction http://www.pravda.com.ua/articles/2013/03/21/6986155/.

Even without this (and many other) warnings, the living experience under two governments of Viktor Yanukovych – in 2002-2004 and 2006-2007 – should have been sufficient to understand what his ultimate victory would mean for the country. Sapienti sat, but Ukrainians seem to be incurable optimists. This might seem paradoxical in view of all the ordeals they suffered throughout their history. But maybe some resilient optimism is exactly what they need most to survive under unfavorable circumstances.

Even today, three years after Yanukovych’s victory and the complete destruction of state institutions, any warnings about the most probable steps to be undertaken by his devious team usually fall on deaf ears. Even seasoned experts typically respond: “No, they would not go that far!”

But they do. And there are no signs they are going to stop anywhere due to some legal, or moral, or merely technical reasons. If any rule, or law, or even the constitution restrain the usurpers, they easily change them, bypass, misinterpret, or ignore. This is how they created the illegitimate government, reshuffled the Constitutional Court, abandoned the Constitution, changed the electoral law, falsified local and, then, national parliamentary elections, imprisoned political opponents, subordinated the entire judiciary to the unconstitutional body called the Supreme Council of Justice, a mere handmaiden of the presidential administration, and more http://www.pravda.com.ua/articles/2013/03/25/6986377/.

Until recently, very few people imagined the tame courts could be used, four months after the elections, to withdraw mandates from a couple of disobedient deputies on the dubious legal ground of some alleged electoral violations. No Ukrainian law stipulates such an odd procedure but the goal of the legal novelty is clear: to send a message to all MPs that any of them could lose their mandate at any point, depending on the president’s whim and his team’s calculations. If the MPs refuse to accept carrots in a form of six-digit bribes, they should be ready to face the sticks http://www.pravda.com.ua/news/2013/02/8/6983167/.

Sehiy Vlasenko, Yulia Tymoshenko’s legal adviser, became the latest victim of Ukraine’s notorious selective justice when the Supreme Administrative Court stripped him of his MP’s mandate on the grounds that he could not combine the activity of a professional attorney and work in the legislature. Despite the fact that all the evidence indicated that he did not represent Tymoshenko in court as an attorney but merely assisted her as a consultant (which is not forbidden by law), the judges adhered to their decision http://www.pravda.com.ua/news/2013/03/6/6985032/.

Now, the Ukrainian optimists have got one more field to perfect their positive thinking. As the crucial presidential elections in 2015 loom large and the incumbent has virtually no chance to win them fairly, the possible tricks are pondered, ranging from possible changes of the constitution that would enable the election of the president by the (domesticated) parliament to a more sophisticated manipulation of the electoral process that would secure an easy victory for the incumbent against the radical rival in the second round. The first scenario was put in doubt after the parliamentary elections did not bring the Party of Regions the needed majority it needed to change the constitution at some later point. The second scenario was questioned recently by an opinion poll, which revealed that Yanukovych might lose the second round not only to Vitaliy Klychko (30% to 49%), Arseniy Yatseniuk (33 to 40) or Yulia Tymoshenko (33 to 36), but even to Oleh Tiahnybok, a radical nationalist, who was considered easy prey for the incumbent and therefore the most preferable sparring partner in the second round. Now, Tiahnybok lags only one per cent behind Viktor Yanukovych (32 to 33) and, as time passes and the situation deteriorates, may overrun the incumbent as a lesser evil in the eyes of the electorate http://ratinggroup.com.ua/products/politic/data/entry/14049/.

Therefore, Ukrainian authorities are musing over a new ploy: to conduct the presidential elections in a single round, that is to employ the first-past-the-post system, which largely helped them to win parliamentary elections last year. This does not require any changes to the constitution, other than to amend the law on elections to that of a simple majority. And once again, the Ukrainian optimists contend that the Regionals would not go so far. They argue that such presidential elections would not be internationally accepted and that the legitimacy of such a president would be very low. But there are no proofs that Ukrainian rulers care much about international practice, legality and legitimacy. Occasionally, they make some concessions to public opinion and international policy-makers but only to a degree that would not threaten their monopoly on power.

Their general approach to all the boring legal principles and procedures was aphoristically expressed by Mykhaylo Chechetov, the Party of Regions band-master who conducts the  “right” voting of his party fellows in the parliament by raising the hand (that means “yes”) or waving it (that means “no”). Last year, after his faction brazenly violated all the procedural requirements to push through the parliament a highly controversial law on languages, he boasted cynically to journalists: “Just realize the elegancy of our play! We tricked them (the opposition) like kittens!”

The meaning of “elegancy” of their play is perfectly characterized by a leading member of the Party of Regions who, back in 2004, headed the shadow, i.e. real electoral headquarters of Viktor Yanukovych, responsible for all electoral manipulations, contrary to the official headquarters, assigned the role of a show-window. According to Taras Chornovil, who worked at the time for Yanukovych, all his attempts to discourage colleagues from blatant falsifications encountered a typical response from the headquarters’ chief: “Why worry? Everything is under [our] control!” (Ne boysya! Vse skhvacheno”—the word “skhvacheno” comes from criminal jargon and means literally “is captured!”).

There are an increasing number of experts who believe that Yanukovych has already passed the point of no return and will now stay in power at any cost. Many Ukrainians used to have the same feeling about Leonid Kuchma after his alleged involvement in Heorhiy Gongadze’s murder. But, as Mykhaylo Dubyniansky argues, Kuchma had some internal restraints that are completely missing in Yanukovych. Kuchma was prone to bargain for security guarantees and retreat peacefully. Yanukovych would not trust in any guarantees since he destroyed the non-aggression pact among the elites himself. “He does not stand upon ceremony with the Constitution, does not stand with MPs, and would definitely not stand with protesters, however many of them go into the streets. Any attempt to dismiss Yanukovych – real, not farcical – would end up with violence. If anybody had cherished rosy illusions, they should have faded away last fall. We saw a bloody battle in Pervomaysk [during the elections], and tear gas in Kyiv, even though there was nothing particularly valuable to fight for. In two years, the stakes will be much higher – the personal security of Viktor Yanukovych, his family assets, and his beloved Mezhyhirya residence. Coercion would grow proportionally to the price of defeat”: http://www.pravda.com.ua/articles/2013/03/21/6986081/.

These gloomy predictions might contrast dramatically with some optimists’ views. A leading Ukrainian historian Yaroslav Hrytsak believes that “Ukraine has never had such a weak regime. To dismiss it is an easy and even joyful task” http://gazeta.ua/articles/grycak-jaroslav/_mudrist/415453.  Oksana Zabuzhko, a prominent Ukrainian writer, argues that: “by all indications, they are short-term rulers… And, when they—like teenagers who encourage themselves—cry threateningly that they have come to power ‘for a long time,’ it sounds ridiculous” http://unian.net/ukr/news/news-385145.html.  Yulia Mostova, the editor of the reputable Dzerkalo tyzhnia weekly, contends that “today’s authorities are weaker than ever before” because they are not able to “withstand the challenges that our nation encounters” http://gazeta.dt.ua/POLITICS/slabkist_silnih.html.  And Alexander Motyl, one of the most perceptive observers of current Ukrainian politics, is confident that Yanukovych’s deeply dysfunctional system “will collapse under its own dead weight. Most probably, that collapse will come in 2015, during the next presidential elections, or in 2020, after Yanukovych finishes his second term” http://www.worldaffairsjournal.org/blog/alexander-j-motyl/yanukovych-ruin-and-its-aftermath-part-1.

What both the optimists and the pessimists have in common is a profound concern about the regime’s succession. Indeed, whether the regime’s collapse occurs sooner or later, peacefully or violently, the new authorities, in any case, would have to solve an enormously difficult task of complete reconstruction of state institutions, from top to bottom. And, as Mykhaylo Dubyniansky aptly remarks, the tougher an authoritarian regime, the more likely its opponents-cum-successors would be very similar, as we have witnessed in Libya, Syria, and quite a few African states. In other words, Vitaliy Klychko may easily win an election against Viktor Yanukovych if it is free and fair. But if it were not conducted democratically, it would likely not be Klychko who orchestrates the dismissal of the usurper. Suffice it to recall the dismissal of Ceausescu, Qaddafi, or Assad to understand the challenges Ukraine is approaching.

 

The Viktors Go to Brussels

David Marples and Myroslava Uniat

After the February 25 16^th EU-Ukraine summit in Brussels, Ukraine’s chances of signing an Association Agreement later this year in Vilnius appeared as uncertain as they were before the meeting. What is lacking is a single unequivocal statement from President Viktor Yanukovych that he is prepared to meet the EU halfway and agree to the preconditions that have been outlined and reiterated numerous times by various leaders of Brussels. Meanwhile, Ukraine’s relations with the Russian-led Customs Union seem equally as ambivalent, but continue in parallel form in the background.

The Europeans have made it plain that the continuing imprisonment of opposition politicians Yulia Tymoshenko and Yuri Lutsenko is part of the equation. If the EU has compromised, then it may be on the issue of the former. While Brussels-based politicians condemn the escalation of the charges against Ukraine’s former Prime Minister, there is less emphasis today than hitherto that the release of Ms Tymoshenko is an essential prerequisite for the signing of the agreement. Regarding Lutsenko, on the other hand, the situation is simply confusing. Evhen Balitskiy, a deputy from the Regions Party, speaking on Ukraine’s Channel 5 on February 21, stated firmly that the two detained figures would be released only when they had completed their sentences, and that Ukraine would not cave into outside pressure for an early end to their confinement (http://www.unian.net/news/554646-regional-otpuskat-timoshenko-i-lutsenko-ranshe-sroka-nikto-ne-sobiraetsya.html).

Another report of February 23 suggested that Yanukovych was indeed willing to compromise on both cases, but without setting a time frame (http://www.unian.net/news/555201-ukrainskiy-interes-anketa-evrointegratsii-i-ansambl-dlya-igryi-na-trube.html). Lutsenko’s wife expressed her view that the president had paid close attention to issues dealing with her husband and that his detention was a political matter, i.e. that he had been imprisoned for criticizing the government (http://www.pravda.com.ua/news/2013/02/22/6984173 ). Just three days later, a report from the Polish newspaper Gazeta Wyborcza, maintained that after his meeting with the presidents of Poland and Slovakia, Yanukovych had promised to release Lutsenko in order to demonstrate Ukraine’s commitment to joining Europe. But the press service of the Polish president Bronislaw Kororowski would neither deny nor confirm the statement (http://www.pravda.com.ua/news/2013/02/25/6984254/).

Meanwhile EU politicians were expressing optimism both before and after the Brussels summit. European Commission president Jose Manuel Barroso enunciated his vision of Ukraine as future member of the European Union and expressed his faith that Ukraine has a European future. The effort to get an Association Agreement signed in November at the Eastern Partnership summit in Vilnius was endorsed not only by Barroso, but also by President of the European Council Herman Van Rompuy, EU High Representative for Foreign Affairs and Security Policy Catherine Ashton, and European Commissioner for Enlargement and European Neighborhood Policy Stefan Fule. They did add the proviso, however, that Ukraine should resolve the issue of “selective justice” and remove “deficiencies” in the conducting of parliamentary elections (http://zaxid.net/home/showSingleNews.do?kerivnitstvo_yes_hoche_shhob_ukrayina_stala_chlenom_yevrosoyuzu&objectId=1279188).

There was, however, another familiar Ukrainian visitor in the Belgian capital. Prior to the summit, at an evening meeting with Barroso that lasted over an hour, former president Viktor Yushchenko commented that the Tymoshenko case should not hold up proceedings (http://zaxid.net/home/showSingleNews.do?yushhenko_pered_samitom_govoriv_z_barrozu_pro_ukrayinu_i_timoshenko__zmi&objectId=1278974). The future of the Ukrainian state, stated Yushchenko, should not be a hostage of the “Tymoshenko affair.” Whether the Europeans still perceive Yushchenko as a credible authority is a moot point. The former president has rarely missed an opportunity to denounce his former Prime Minister, whose lengthy jail sentence was due in part to his testimony, and he appears content to serve the Regions government in his new role as an informal negotiator.

The delayed visit of Yanukovych to Moscow, on the other hand, finally took place on March 4, following its postponement last December. The main topics on the agenda were cooperation in energy, trade, and the economic sphere, particularly the conditions on which Ukraine might join the Customs Union. In addition Yanukovych returned to an old conundrum of the Kuchma era, namely the notion that there could be a joint Ukrainian-Russian venture to rent out Ukraine’s gas transportation system (http://zaxid.net/home/showSingleNews.do?yanukovich_u_rosiyi_zaproponuye_stvoriti_spilne_pidpriyemstvo__taran&objectId=1279284; http://www.rferl.org/content/putin-yanukovych-moscow/24918397.html ). Russia, however, is insisting that Ukraine recognize the validity of previous agreements, which include not only the unfortunate 2009 deal on gas prices negotiated by Tymoshenko, but also cooperation and progress toward the integration of the Russian and Ukrainian nuclear industries in accordance with the July 12, 2012 memorandum signed in Yalta. One possible component of this agreement is joint construction of units 3 and 4 of the VVER nuclear power station at Khmelnyts’kyi (http://www.unian.net/news/556804-yanukovich-i-putin-pogovoryat-o-gaze.html ).

 In April 2011 Yanukovych suggested that Ukraine might join the Customs Union in a 3+1 format precluding its full integration. That notion received qualifiede support from Regions deputy and Deputy Prime Minister Serhiy Tihipko, a former chair of the National Bank of Ukraine. Tihipko observed that Ukraine’s entry into the Customs Union has been under negotiation since 2010 and that the proposed treaty details are about 1,000 pages in length. Good progress has been made in his view. But neither side has started to work seriously on the 3+1 idea, an approach that he would not reject. Still, the EU market is seven times larger, which renders it more interesting for the Ukrainian economy (http://www.pravda.com.ua/news/2013/02/22/6984174 ). Implicitly therefore the Customs Union is a viable back-up plan should negotiations with Brussels result in failure.

 If, as seems plausible, Yanukovych is using talks with Russia to persuade Brussels to void the various conditions for signing the Associaton Agreement, he is demonstrating remarkable political naivety. The outcome could be the failure of the November meeting with the EU and equally unfruitful negotiations with Russia, which has considerable sway over the immediate future of Ukrainian energy policy in several of its major spheres, but especially oil, gas, and nuclear power. Andrew Wilson of the European Council of Foreign Relations commented that if the president was a wise man, then he would at least agree to release Lutsenko, but [he] «is not wise» (http://zaxid.net/home/showSingleNews.do?yes_pidpisav_bi_ugodu_pro_asotsiatsiyu_navit_z_timoshenko_v_tyurmi__ekspert&objectId=1278880 ). Valery Chaliy of the Kyiv-based Razumkov Center maintains that the chances of the Association Agreement being signed are no better than 20%. And Swedish Foreign Minister Carl Bildt declared that «To put it mildly, the current signs of progress in Ukraine are quite limited» (http://zaxid.net/home/showSingleNews.do?imovirnist_pidpisannya_ugodi_pro_asotsiatsiyu_z_yes__20__ekspert&objectId=1278849).

 The EU has no doubt taken into consideration the overwhelming support for Ukraine’s European aspirations in the Ukrainian Parliament and the fact that even the government, despite its vacillations and the lack of firm directions at the level of the presidency, is generally in favor. It should take note, however, that negotiations on the side of Kyiv are not taking place with sincerity or even an evident willingness to compromise. All too often the vindictiveness toward former enemies and fear of retribution at some future date for more conciliatory policies, particularly in dealing with the Tymoshenko and Lutsenko cases, mean that at best, the Europeans will see no more than sluggish and very reluctant steps to comply with even modest requests. As Wilson has noted, however, a failure in November could seriously undermine the very existence of the Eastern Partnership. Ukraine might then have no immediate options other than the Customs Union, either in the so-called 3+1 formation or deeper integration on terms emanating from Moscow.

Triumph of the Cargo Cult

Mykola Riabchuk

Six years ago, I published an article under the (perhaps too optimistic) title “Farewell to the Cargo Cult” (Berliner Zeitung, 13 April 2007). It was about the ongoing protests in Kyiv organized by the Party of Regions against president Viktor Yushchenko’s decree dissolving the parliament and declaring early parliamentary elections. The decree was indeed controversial but probably it was the only way to stop the creeping coup d’etat: the buying up and blackmailing of deputies in the parliament to form a pro-Yanukovych constitutional majority.

The protests staged by Yanukovych’s supporters looked like a parody of the Orange Maidan — a dull, uninventive imitation of the revolutionary events that had occurred in Kyiv two years earlier. The pathetic turnout of the “protesters,” their passivity and lack of enthusiasm, inability to explain what they were fighting for and off-record confessions about banal remuneration received for the participation in that political show made a striking contrast to the powerful civic spirit revealed during the 2004 revolution.

For me, it was a clear sign that Yanukovych and his Party of Regions believed sincerely that the Orange upheaval was brought about by money, and if they invested in similar fashion they would get the same result.  The “Cargo Cult” metaphor referred to a quasi-religious cult that emerged allegedly in the Pacific islands among the aboriginal tribes after the Second World War. During the war, aborigines witnessed American soldiers who received delightful goods, called “cargo”, from the sky. After Americans left, they decided to appease the sky gods in the same in order to get the same bounties. They developed a sophisticated ritual that imitated the landing of airplanes with bonfires around the landing stretch cut out of the jungle and native priests with wooden headphones communicating with their gods in some incomprehensible sacral language.

I confess I was wrong in using the word “farewell.” The Cargo Cult is alive and well in today’s Ukraine where the governing Party of Regions has made it a kind of a state religion. They worship it everywhere: in both political statements and institutional practices. Here and there, they imitate democratic elections, legal procedures, and parliamentary deliberations, with the candid hope that the European gods would bestow some sort of democratic legitimacy upon them or at least would not sanction them for skullduggery.

The new indictments of Yulia Tymoshenko for bribery, theft, tax evasion, and even killing a rival businessman back in 1996, represent a perfect example of “cargo” mentality: if our wooden headphones do not help us to communicate with the EU, let’s produce more wooden headphones. If there are no reliable proofs of Tymoshenko’s wrongdoing, let’s produce more unreliable proofs, hoping that sheer quantity would substitute for the dismal quality. It would be funny, if was not so depressing. If very shaky evidence sufficed to sentence Yulia Tymoshenko to seven years in prison for the gas deal with Putin, even shakier evidence – but a greater amount – may well suffice to give her a life sentence in a country where no independent judiciary exists.

So far, the court process looks even more farcical than it looked two years ago when the routine political-cum-economic decision was notoriously criminalized. All the witnesses summoned by prosecutors are reasonably suspected of being in their pockets [http://blogs.pravda.com.ua/authors/chornovol/511cf62064a09]. All of them had either a criminal past and long history of cooperation with the authorities, probably as paid agents [http://blogs.pravda.com.ua/authors/chornovol/511e5bc4a816d], or some would-be criminal problems today that are likely to be solved only through their “cooperation” [http://www.pravda.com.ua/articles/2013/02/13/6983385/]. Remarkably, none of them has had any personal contact with Yulia Tymoshenko, nor they have any direct proof of her involvement in the criminal case. All their testimony to the court is based on some ambiguous information they presumably heard from others who have typically disappeared and can neither confirm nor deny the allegations. Remarkably, all of them kept this hearsay evidence unrevealed for seventeen years, ostensibly because they were afraid of Tymoshenko’s revenge, even though she became the prime minister only in 2005. Before that, she was persecuted and even imprisoned briefly by Leonid Kuchma. He was not so inventive, however, to accuse her of murder. And, surprisingly, none of today’s witnesses gave him a hint.

The authorities not only failed to produce any serious evidence of Tymoshenko’s involvement in the 1996 contract killing of Yevhen Shcherban. They failed even to explain persuasively what might have been her interest in such a plot [http://blogs.pravda.com.ua/authors/chornovol/5122684597f9f/]. The only argument is that there were some tensions between Tymoshenko’s boss (and Ukraine’s prime minister at the time) Pavlo Lazarenko and the victim, hardly an unusual situation in Ukrainian business environment. Yet, as two business partners of the late Mr Shcherban — ­Serhiy Taruta [http://www.pravda.com.ua/articles/2013/02/8/6983135/ ] and Vitaliy Hayduk [http://www.pravda.com.ua/articles/2013/02/19/6983862/] — testify, all the disputes had been solved by that time and Lazarenko had no reason to embark on such crude methods as killing. Actually, as prime minister, he had much more subtle instruments to promote his own business and intimidate disobedient rivals. Viktor Yanukovych must be perfectly aware of this.

Furthermore, even if one imagines that Mr Lazarenko went crazy and decided to do something irrational, he certainly did not need any assistance and mediation from Mme Tymoshenko, a minor pawn in his business empire, much more suitable for performing clean rather than dirty jobs [http://gazeta.ua/articles/479282]. There have always been plenty of professionals in this field in Ukraine, and even today such a job does not cost $3 million as the prosecutor alleges. Back in 1996, the experts claim, it was about ten times cheaper.

It is not clear, indeed, whether the Ukrainian authorities expect to sentence Tymoshenko to life imprisonment on such dubious legal grounds. What is clear, however, is they may well do so, since the previous case that cost Tymoshenko seven years in prison was not much better substantiated. Hatred is blind, and fear makes people vengeful. In Yanukovych’s case, all these unpleasant characteristics are only multiplied by his poor culture and education, provincial outlook, and lack of wise and committed advisers.

Taras Chornovil, who closely cooperated with him in 2004-2007, believes that “Yanukovych has many complexes, including the ‘blockaded Leningrad’ complex: “he cannot feed himself, he still is hungry for money, property, luxury.” And Tymoshenko, Chornovil contends, threatened to imprison him and re-nationalize “Mezhyhirya,” a government residence on 100 hectares of land near Kyiv, illicitly privatized by Yanukovych when he was prime minister. “I guess, he read these words shortly before he made his decision on Tymoshenko. I know for sure that two weeks earlier there was a large meeting and big debate in his administration on how to continue the process and what to do with her. The prevailing opinion was that Yulia should be accused but left free. But the subsequent denunciation made her arrest unavoidable” [http://gazeta.ua/articles/480185].

This evidence renders any hopes for the imminent release of Yulia Tymoshenko ephemeral, as also any chance of signing the Association Agreement with the EU in the foreseeable future. People who preach the “Cargo Cult” simply do not understand what real airplanes – let alone real democracy, rule of law, and European integration – actually mean. The only good thing is that here, in the post-Soviet realm, they do not practice ritualistic cannibalism. Luckily for us all, they follow a somewhat different political and gastronomic tradition. So far, they have indulged themselves only with the ritualistic imprisonment of their political rivals.

UKRAINE: AN UNSEEN IMBROGLIO?

David Marples and Myroslava Uniat

The administration of President Viktor Yanukovych and Prime Minister Mykola Azarov appears to be in confusion. On the one hand it faces a large bill from Russia’s Gazprom for portions of unused gas, along with intense pressure from the Russian government to join the Customs Union. On the other, it awaits a significant summit with the EU in Brussels on February 25 to discuss an Association Agreement, a prelude to its potential signing at the EU Eastern Partnership in November in Vilnius, without first meeting preconditions requested by the Europeans. In fact the president seems blandly oblivious of the tightrope he is walking, assuming that in the world of realpolitik, it is Ukraine rather than Brussels that holds most of the cards. The Ukrainian leader’s logic is that the Kyiv government can operate between the EU and Russia, which are also limited in their bargaining power: Russia, because it needs Ukraine to make the Union work, and the EU because by isolating Ukraine, it would push that country firmly into the Russian orbit. He has witnessed similar maneuvers by the president of Belarus, after all, who has survived largely unscathed to date and remained in power for almost two decades.

In reality, however, Ukraine’s position seems much weaker than the Yanukovych-Azarov team imagines or acknowledges. Russian pressure is constant. The former deputy of United Russia, Sergey Makarov, commented that if Ukraine joined the Russian-led Customs Union—it currently comprises Russia, Belarus, and Kazakhstan, and Kyrgyzstan has expressed a wish to join—then the $7.09 billion fine for unused gas will simply be waived. Joining would also mean more chances that gas prices would be reduced (http://www.pravda.com.ua/news/2013/02/8/6983116/). In brief: join us and your troubles are over! Understandably, the Ukrainian side baulks at Gazprom’s demand, partly because it has denounced the 2009 agreement, signed between former Prime Minister Yulia Tymoshenko and then Russian Prime Minister Vladimir Putin in 2009, which failed to anticipate the fall of gas prices and committed Ukraine to paying for the full amount of imported gas, whether or not it was actually needed. Deputy Prime Minister of Ukraine Yuri Boyko met with Chairman of the Gazprom Board Aleksey Miller in early February and stated that he did not think it appropriate for Ukraine to pay such a sum (http://www.pravda.com.ua/news/2013/02/8/6983148/).

Meanwhile, the Regions Party has not responded to a variety of requests from the Europeans to fulfill what are seen as essentially minimal requirements for the signing of the Association Agreement in November. The Dutch Ambassador to Ukraine, Pieter Jan Wolthers, has commented that there is no guarantee that the Association Agreement will be signed because all depends on the Ukrainian side meeting the terms, which include dealing with the issue of selective justice (http://www.pravda.com.ua/news/2013/02/9/6983182/). Likewise, Lithuanian president Dalia Grybauskaite, whose country takes over the presidency of the Council of the European Union in the second half of this year, informed Yanukovych during his working visit to Lithuania on February 6, that she believes the imprisonment of two former opposition leaders, Tymoshenko and former Interior Minister Yuri Lutsenko, to be politically motivated. She also took Yanukovych to task over the Customs Union, pointing out to him that the simultaneous signing of agreements with the EU and the Customs Union was impossible, because the two contradict each other (http://postup.brama.com/usual.php?what=75559). Therefore it is necessary for Ukraine to choose one or the other. British analyst Andrew Wilson posits that Yanukovych is ignorant of how the EU works, believing that the crucial matter is a balance of power and that the EU’s concern for Tymoshenko is ritualistic. Wilson’s view is that Yanukovych expects at some point that the EU will simply stop making demands and sign the Association Agreement, whereas in reality Ukraine is becoming isolated (http://zaxid.net/home/showSingleNews.do?u_yes_rozdratovani_nevikonanimi_obitsyankami_yanukovicha&objectId=1278035 accessed Feb 17).

For his part, Yanukovych is defending himself and casting stones simultaneously. First of all, he informed European Commissioner Stefan Fule on February 7, his Regions Party has already introduced draft proposals to meet some of the EU’s demands starting in 2010. They are somewhat delayed because he has to deal with officials and politicians “who are used to living in the old way” (http://www.pravda.com.ua/news/2013/02/8/6983134/). He responded to Grybauskaite that Ukraine could not ignore the fact that trade with the members of the Customs Union currently amounts to more than $60 billion, and therefore he supports “simultaneous cooperation” with the EU and the Customs Union. He also blamed the EU Energy Community, which Ukraine joined in 2010, for its failure to intervene to defend Ukraine when Russia made the demand for $7.09 billion for gas, a comment to which director of the Community Secretariat Janez Kopač responded with surprise, noting that Ukraine has to date never requested such assistance (http://zaxid.net/home/showSingleNews.do?u_yees_zdivovani_zakidami_yanukovicha_pro_vidsutnist_dopomogi&objectId=1277536).

Other officials simply blame the parliamentary opposition for the lack of progress on meeting EU requests. Thus Cabinet and Regions Party member Olena Lukash stated that five projects have been submitted to parliament, dealing with improvement in laws to combat corruption, and increasing penalties for corruption offenses. The president has submitted two bills dealing with the ratification of the UN protocol against the illicit manufacturing and trafficking of firearms. She hopes therefore that the opposition will provide its support for the adoption of European laws and confirm its choice of European integration (http://www.day.kiev.ua/uk/news/090213-v-uryadi-zapevnyayut-shcho-pracyuyut-na-ievrointegraciyu). The opposition in turn has blocked the parliamentary tribune in an effort to demand individual voting of each deputy (http://www.pravda.com.ua/news/2013/02/8/6983114/), ending the practice of multiple voting through the voting cards of absent MPs. On February 20, however, it supported the Parliament’s draft statement on implementing Ukraine’s goals for integration with Europe and signing of the Association Agreement.

The subplot behind these issues is the continuing detention of Tymoshenko and Lutsenko cited above, and the recent introduction of new criminal charges against the former for the murder of former parliamentary deputy Evhen Shcherban in 1996, together with the then Prime Minister Pavlo Lazarenko, who is still under house arrest in the United States serving a sentence for money laundering. One possibility widely discussed is that Yanukovych could conceivably pardon Lutsenko, a secondary figure who would be unlikely to pose a political challenge, if he received such a request. The former minister has been diagnosed with cirrhosis of the liver and portal hypertension, and political analyst Volodymyr Fesenko surmised that his release could happen prior to the EU-Ukraine summit on February 25. Lutsenko’s wife, however, thought that her husband would not request such a pardon, which would imply an acknowledgement of guilt (http://zaxid.net/home/showSingleNews.do?yanukovich_ukazom_mozhe_zvilniti_lutsenka__nardep&objectId=1277817). But without any such concessions, it seems inconceivable that the Europeans would be very welcoming toward the Ukrainian leaders in Brussels.

The irony of these complex discussions and internal wrangling is that even a leader as out of touch with the world around him as Yanukovych, and his trusted aide Azarov, would not have to do much to assuage the anger emanating from some capitals of Europe. The early release of Lutsenko, with or without a pardon, would cost the president nothing, but would be perceived as a positive step from the EU’s perspective. Moreover, the oligarchs within and outside the Regions Party have little to gain from Ukraine being drawn into the Customs Union, which would curtail their control over a lucrative part of the domestic economy as well as reducing Ukraine’s political independence. At times the president does appear to perceive where future policy should lie. All too often he appears simply to be unaware of the limitations of his position, which unfortunately affects not only to his administration, but the Ukrainian state, which has a limited number of options. Despite the growing authoritarianism and corruption of his government and in the country at large, Yanukovych has an opportunity to move closer to the EU. It is one that requires decisive and prompt action.