Compliance Rituals

President Yanukovych has announced that if parliament adopts a law allowing his imprisoned political opponent Yulia Tymoshenko to go to Germany for treatment, he will sign it. It would then, he stressed, need a court ruling.  This may ooze concern for democratic practice and rule of law, however a number of questions arise.  They are questions that could not be put by journalists during his visit to the Donetsk oblast on Thursday since only those from the president’s trusted journalist pool were allowed near him.   

The first difficulty concerns accuracy.  Yanukovych stated that “at present political parties represented in parliament have begun preparing a draft law which will make it possible to resolve this problem.”  This appeared to have taken MPs by surprise and through Thursday evening opposition MPs were reported in many media accusing the president of deliberate procrastination. They pointed out – with justification -  that the opposition had put forward a number of bills to resolve the sticking point for the EU –Ukraine Association Agreement presented by Tymoshenko’s imprisonment.  The draft bills sought to change the notorious article of the Criminal Code under which Tymoshenko was convicted and were all hampered by lack of ruling Party of the Regions support.

Article 365 (abuse of official position) has aroused criticism from all major European bodies largely because of the scope for abuse. It was used to convict Tymoshenko over the 2009 Gas Accords with Russia, as well as in a number of other cases involving former members of Tymoshenko’s government.  When the will is there (and when is it not?) most criminal charges can do the trick, nonetheless amendments to that article in parliament would have indicated a real move away from selective justice.

Mykola Siry, one of Tymoshenko’s lawyers,  has said that judicial review is a second option.  It should be, but in the trials of Tymoshenko and Lutsenko there were so many gross infringements, that it is difficult to believe that this option would be taken seriously, and the time for empty farce has surely passed. 

A health-related pardon was used to get former Interior Minister Yury Lutsenko released and it worked.  There have been numerous appeals for such a pardon in the case of Yulia Tymoshenko, including from religious leaders, human rights organizations, and others.

Everybody knows why the current situation is so difficult, or more precisely who would find release of Tymoshenko on health grounds and still in Ukraine unacceptable.  In fact the headlines on Thursday evening could not have been blunter. Yanukovych is trying to lay responsibility for the Association Agreement on parliament. 

On Friday afternoon it was reported that a Party of the Regions MP had registered a bill which would enable Tymoshenko’s treatment in Germany.  On Saturday the same MP, Mykola Rudkovsky was reported to have formally announced his departure from the Party of the Regions three days earlier.  Perhaps this was what Yanukovych meant when he referred to preparations in parliament? 

On Friday Speaker Rybak stressed that “the law should not allow convicted prisoners to evade punishment since treatment is not a pardon”. 

Tymoshenko has agreed to treatment in Germany.  She has also, apparently, said that she will not ask for asylum, making any proposals now put forward that she would return to serve out her sentence highly problematical.  Yet the Cox-Kwaśniewski Mission has been extended, negotiations do not appear to be demanding a full pardon and reinstatement of her political rights.  It seems likely therefore that less will be deemed enough by the EU and enable the signing of the Association Agreement.

Is it enough?

Any less is absolutely inadmissible.  This is not a prediction.  Apparent weakness by the EU, last year’s Nobel Peace Prize laureate, in its treatment of Belarus’s oppressive regime precludes total confidence.  However, what the EU would have to gain politically for such a debacle is difficult to fathom.  EU threats have always been lacking in real clout, but the only winners of a climb-down would be those wishing to imprison their political rivals - a fine message.

Even without that, the risk seems enormous.  Perhaps some commitments behind the scene will be extracted, however all promises thus far have proved empty.  Tymoshenko will not have been pardoned but simply removed from the scene.  It sounds unpleasantly like the solutions found for Solzhenitsyn and other prominent figures back in Soviet times.  

Politically motivated imprisonment is unacceptable at all times and clearly all measures must be applied to obtain the victims’ release.  The bargain this time, however, is for much more, with major benefits for Ukraine from the Association Agreement, including likely IMF funding. 

This will come at a time when the president is going all out to win the 2015 elections.  Recent buy-outs of major media holdings and smear campaigns against journalists and civic activists are widely seen as preparation for these elections. So too is the refusal to schedule Kyiv Mayor and City Council elections.  The election watchdog OPORA has predicted that the re-runs of the parliamentary elections in 5 problem constituencies are likely to turn dirty after the Vilnius Summit.  The re-runs are touted as evidence that Kyiv is making efforts to comply with EU demands.  With respect to electoral legislation, there have been no others.  The list of undoubtedly needed, yet hastily prepared draft laws is long and it seems likely that many will remain on paper.  Even those moves which have been broadly welcomed by the Venice Commission, such as the removal of parliament’s role in voting on judges’ permanent tenure, are by no means clear cut.  The Commission was working from documents which appeared to present a totally nominal role played by the president in appointing judges.  The Razumkov Centre, the Centre for Legal and Political Reform and other analysts have pointed to grave flaws in the system proposed.  In a nutshell, most believe that one way or another, decisions regarding the appointment of judges will in fact be those wanted by the president and his administration.

The EU-Ukraine Association Agreement is vital for Ukraine and the above is not aimed at suggesting it should not be signed.  On the other hand, nobody seriously doubts that it will be Yanukovych who decides whether Tymoshenko is sent to Germany.  If the Association Agreement is contingent on this alone, then compliance with valid democratic requirements becomes as unconvincing as the president’s declared willingness to accede to parliamentarians’ wishes