Meanwhile the Venice Commission has given a very critical evaluation of the draft law on parliamentary elections claiming that many provisions require improvement. The authors of the law appear to have disregarded the prior recommendations of the Venice Commission and OSCE, particularly in the case of provisions for protest against election results and the prohibition of candidates with criminal convictions. Aside form these issue the commission generally considers the law to be unnecessarily complicated and thus difficult for the electorate and election commissions to interpret.
At the same time judicial reform is gradually taking place in Ukraine. The law on court organisation and the status of judges was recently approved and introduced and the High Council of Justice of Ukraine has been given the authority to appoint judges to administrative positions. But in order to meet the requirements of the Judges’ Charter in Europe and established European standards. The judicial system of Ukraine still needs considerable reform. Yet the Ukrainian authorities remain thoroughly optimistic regarding the judiciary reform. Minister of Justice Oleksandr Lavrynovych professed to the President of the European People’s Party Wilfried Martens that reform of criminal law is Ukraine’s last unfulfilled obligation to the Council of Europe.
The International community however seems more concerned with the on-going high-profile legal cases that have recently drawn into question the reliability of Ukrainian judges and the democratic principles of the government. The cases to receive the most attention are that of Ex Prime Minister Yulia Tymoshenko and former Interior Minister Yury Lutsenko.
The Tymoshenko case has turned from has become more of a political show-trial than standard legal proceeding due to the extension of the case over several months, throughout which the defendant has remained imprisoned and a charge that has changed several times – currently an alleged abuse of authority during the Russia-Ukraine ‘gas war’ of 2009. Repeated delays suggest that the authorities are in doubt over the reputation impact of the case and are taking their time to judge the reactions of leading countries to the trial. Hearings throughout the Tymoshenko case have been postponed on many occasions. The latest delay being a decision by principal Judge Rodion Kireev to reschedule the next hearing for Sept. 27.
Some experts and media representatives suggest that the authorities will try to avoid a severe sentence and potentially offer Tymoshenko an amnesty after she is convicted. The parliament of Ukraine has already registered a draft law on the amnesty of Yulia Tymoshenko and Lutsenko; however, it is interesting that Tymoshenko’s Block has abstained from voting on the draft law as they believe she is not guilty. Experts have observed that the Ukrainian government will be able to evade some of the more severe criticism of the West by providing an amnesty to Tymoshenko and Lutsenko, but even with the amnesty both defendants will be barred from re-entering politics if they are convicted ruling out participation in the parliamentary elections of 2012. Tymoshenko herself has announced that the her case is nothing but political repression and that she will defend her rights at the European Court of Human Rights should such action be necessary.
Meanwhile Yanukovych is trying to persuade the international community that the trial is being carried out without his favour and to his personal distaste. In interviews the president assures that he has nothing to do with the judicial examination of Tymoshenko’s actions relating to the charge of damaging the state by signing the 2009 gas treaty with Russia. The president also agrees that Tymoshenko, Lutsenko and other state officials should not have to be placed under arrest prior to judgement being passed.
The politicized trials of the former prime minister and members of her government deeply discredit Ukrainian democracy in the eyes of its citizens. According to a social survey conducted by IFES together with KMIC, 44 percent of Ukrainians believe that Ukraine is not a democratic state and only 21 percent of respondents consider Ukraine to be a democracy. Only 16.8 percent of Ukrainians believe that efficient economic reforms are being implemented in Ukraine, as shown by the research of the Razumkov Centre in April.
Giving the circumstances under which the current judiciary reforms are being developed, let us hope that the President will be true to his word and repeal immunity for Ukrainian politicians and state officials. Equality before the law is the only way in which the authorities can modernise Ukrainian society and establish a European level of democratic development. With this policy alone, Yanukovych will be able to prove that the reforms of the judicial system are not for the favour of the few but for the good of all the citizens of Ukraine.
People First Comment: In 1170 the then King of England Henry 11 had fallen out with the Archbishop of Cantebury and is reported to have shouted openly at Court “will no-one rid me of this troublesome priest?” As a result four knights rode out to Cantebury and murdered the Archbishop, an act that has gone down in infamy. The knights were duly executed for murder and the King walked barefoot to Cantebury to seek forgiveness for his sins. Somehow I don’t see any Ukrainian official walking barefoot to anywhere but there is a moral in this story that those at the top should be very careful of vocalising their deepest desires to the court at large as somebody might just take it as a formal instruction.
Yankovych, just as Henry 11 is now incurring the wrath of the international community for the failings of his advisors. He is sadly a victim of his own making as in any vertical power structure the puck stops at the very top, in fact today the President is blamed for every national malaise including the weather. True, the Tymoshenko case was ill conceived, badly thought out, wrongly planned and jokingly executed but one has to ask the question of really who is to blame. For sure the president may well have wanted to be rid of his nemesis but it is unlikely that he personally dreamt up this rather cockamamie scheme.
As with all ‘Royal Courts’ this plan was hatched by advisors around the president who thought that by giving the President what they believed he so desperately wanted they would curry great favour. Sadly their naivety coupled with the bunglings of the president’s incompetent PR team has resulted in exactly the opposite and has done untold damage to the president and the nation. Any one with even a hint of imagination could have worked out the impact of throwing a beautiful, if unrepentant, leader of the opposition into jail. The reaction could have been written in 50 metre high letters. Of course the US, UK, EU and just about every other democrat in the world would come out in uproar, not because they are all so in love with the lady but because you just don’t do this to an opposition leader in a democracy… that is unless you happen to live in Moscow.
This whole case against Tyumoshenko was a ruse to invalidate her from taking part in the Rada elections of 2012 and the next presidential elections in 2015. It is failing. Tymoshenko has been martyred, her ratings have gone through the roof and it is now highly likely that Party of Regions will lose their majority in parliament in 2012. What this will do to the president’s vertical power structure… we will have to wait and see but either way the president will probably have to negotiate as opposed to order and that is just not in his style.
So what are the president’s options: First he could demonstrate executive leadership by bringing to justice the chief prosecutor and the team responsible for these recent illegal and politically incompetent acts. He could also recognise the role played in his current downfall by his less than able PR team.
Having cleaned house the president could start delivering on just some of the promises he made during the election. Fighting corruption is a good start and hopefully reaching a fair verdict for Judge Ihor Zvarych accused of corruption is just the beginning. He could listen to the concerns and the combined wisdom of the Venice Commission and the OSCE on the new election law. He could bring about root and branch reform of the judicial system as this alone would cure many of Ukraine’s current ills.
But such systemic reform will not put food on the table, create jobs or rebuild public trust. If the Ppesident actually wants to retain power without falsifying the next votes he is going to have to take clear steps to improve the everyday lives of ordinary people, he is going to have to rebuild the judicial, health and education systems, eradicate corruption particularly at the mid and lower levels, create jobs by attracting real international investment and he is going to have to start saying no to the self-serving and fawning courtiers and oligarchs who seek to mould Ukraine into their personal possession as without this his term as president might soon come to an abrupt end.
Viktor Tkachuk is chief executive officer of the People First Foundation, which seeks to strengthen Ukrainian democracy. The organization’s website is: www.peoplefirst.org.ua and the e-mail address is:
