PACE Resolution: sanctions without repercussions?
On January 26 the Parliamentary Assembly of Europe (PACE) approved with a majority of votes its resolution on the functioning of democratic institutions in Ukraine.
In the document Europe’s parliamentarians expressed their concern about judicial processes against former members of government in Ukraine, criticized the principles of functioning of the judicial and law enforcement systems, presented their observations to the new electoral law and envisaged the possibility of imposing sanctions on Ukraine should the latter fail to meet the requirements of PACE.
While opposition politicians and the overwhelming majority of experts assessed this resolution as extremely critical, representatives of government consider the document a victory for Ukraine.
To what extent does the PACE resolution reflect Europe’s attitude towards Ukraine? Is it worth expecting that the Ukrainian government will meet the requirements of PACE?
Stick without a carrot
The reputation of Ukraine in the Council of Europe, which it has been a member of since 1995, was seriously tarnished over the half year that the country chaired the Committee of Ministers of this organization in 2011.
The situation became particularly complicated after Yulia Tymoshenko was sentenced to 7 years in prison, which confirmed that the judiciary in Ukraine is politically motivated. It then became quite clear that the tonality of the future PACE resolution on the state of affairs in Ukraine would be highly critical.
Clearly, the Ukrainian delegation replaced its representative on the PACE monitoring committee in order to soften the text in the resolution. Indeed, Serhiy Holovatiy was replaced by Yulia Lyovochkina, who is considered much more loyal to the current ruling power. It was this committee that was responsible for drafting the resolution on the state of affairs in Ukraine.
Despite this, such a transposition did not allow representatives of the ruling Party of Regions to profoundly change the text in the resolution. Moreover, the day before the document was reviewed at the PACE session a provision was added to the
resolution about the possibility of sanctions being imposed on Ukraine, which was obviously an unpleasant surprise to the Ukrainian government.
Such a tactic of the Ukrainian delegation was clear testimony that the government of Ukraine does not understand the basic principles by which PACE works. Instead of eliminating any grounds for criticism inside the country, Ukraine’s delegation attempted to change the text in the resolution right before it was approved. Whatever the case, the majority of PACE members were dictated in their decision not by the lobbyist arguments of representatives of the Ukrainian delegation, rather by their own understanding of the internal political situation in Ukraine.
As the text of the resolution showed, such understanding was extremely unpleasant for the leadership of Ukraine. The small approved section of the resolution was more reminiscent of a show of courtesy, while the overwhelming majority of the text directly pointed out to the Ukrainian government its mistakes and urged it to correct them.
The most alarming signal was the demand that Yulia Tymoshenko and other opposition politicians be released from prison and that they be guaranteed participation in the future parliamentary elections free of any obstacles. The appeal to reform the judicial and law enforcement system, including the decriminalization of articles 364 and 365 of the Criminal Process Code (CPC) in order to guarantee the plaintiffs and defendant equal rights, was an equally devastating blow to the Ukrainian side.
The third serious warning signal that PACE sent out was recommendations to revise the new laws on the election of MPs, namely to lower the passing barrier into the parliament and lift the ban on party blocs participating in the elections
Finally, the most unfortunate warning for Ukraine in this situation is that if it does not fulfill the demands put forth by PACE it risks becoming the victim of sanctions, a warning it has been given for the first time.
Accordingly, Ukraine has ended up between a rock and a hard place. Unlike the resolution of the European Parliament, the message sent out by PACE does not contain any direct stimulus to Ukraine to accelerate the process of signing the Association Agreement with the European Union. At the same time, PACE let Ukraine understand that refusal to play by the established rules could be subject to appropriate punishment, for example, suspension of the authority of the Ukrainian delegation in the organization
Exercise in futility
On the other hand, any politician well aware of European realities understands perfectly well that fulfilling the requirements and recommendations of PACE is an integral condition of harmonization with the EU. This is precisely what the Ukrainian government must understand: if Ukraine truly wants to sign an agreement on association with the EU, it must factor in the standpoint of PACE.
Aside from that, so far there are not notable signals that show the desire of the Ukrainian government to heed the wishes of PACE. First of all, the Ukrainian side is traditionally trying to present the critical resolution of PACE as a true achievement for Ukraine through the statements of the country’s Ministry of Foreign Affairs. But such a stance directly points to the refusal of Ukraine’s leadership to take into account all the observations made in the PACE resolution.
Besides that, the reaction of President Viktor Yanukovych to the approved document was quite telling. At the World Economic Forum in Davos, Switzerland the president initially said he would take into account the PACE recommendations regarding amendments to articles 364 and 365 of the CPC. But then he placed the entire burden of responsibility on the Ukrainian parliament, thereby making it clear that the notion of decriminalization of these articles can be confidently laid to rest.
So, the review of the newly revised version of the CPC that the president submitted to the VR should be the most telling reaction of Ukraine to the PACE resolution. Clearly, it is too early to speak of the document’s final content, but right now one can foresee the nature of its adoption with a high degree of probability.
First of all, the instructions of the Presidential Administration for the urgent review of this bill indicate that once again all amendments that are undesirable for the government will be rejected, which will have an extremely negative repercussions on the content of the resolution.
Secondly, it is highly probable that all efforts of the Ukrainian government to fulfill the requirements of PACE will end with the approval of the CPC. This, in turn, means that those practices of the Ukrainian justice system that were given negative assessments by PACE will not be abandoned seeing as changes to one code will not be sufficient for implementing true reform in this sphere, particularly taking into account the traditional problem in Ukraine of compliance with laws exclusively with the aim of reaping political benefits.
All other requirements of PACE will most likely be ignored. First and foremost, this applies to the fate of imprisoned opposition members: clearly the chances that they will be released before the next parliamentary elections are slim to none and this is directly the opposite course to the one the Ukrainian leadership would take to preserve its power at all costs.
The situation with the law on the elections is similar: it will not be the articles on the minimum barrier for winning a seat in the parliament and the ban on participation of electoral blocs that will be the subject of review. Instead, it will be the provisions in these articles that at the moment serve as a safety device against vote-rigging, which is why they are an obstacle to the aim of the ruling power to win a stable majority in the new convocation of the parliament. If the government agrees to change the electoral system, it will not be with the aim of strengthening party pluralism set in the PACE resolution. On the contrary, the ruling power believes such changes bring it victory in the elections.
In closing, the PACE resolution on the democratic development of Ukraine was the most critical assessment in recent years and for the first time envisaged the possibility of sanctions being imposed on the country in the event that it fails to meet the requirements set by the European body.
Hoping that the Ukrainian side will heed the key observations made in the resolution is wishful thinking. Indeed, the possibility that the campaign of persecution of political opponents through the courts will continue, the judicial system and law enforcement bodies will remain under the control of the president and the system of election to the Verkhovna Rada will remain as unfavorable as it was for the renewal of the parliament is quite high.
Finally, the announced intention of the head of state to take into account the recommendations of PACE regarding the approval of a revised edition of the CPC raises many questions. The fact is that without proper discussion as to their content and a change in the government’s attitude towards the principle of supremacy of law, such an initiative will not produce any tangible result
The Democratic Initiatives Foundation