Ukraine, Russia, and The Hague Syndrome: Unknown Territory for the Court

Hello and welcome to Ukraine Calling, your weekly review of what’s been happening in Ukraine with a focus on a main issue. I’m Bohdan Nahaylo for Hromadske Radio in Kyiv.

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FOCUS INTERVIEW: International legal expert Mykola Hnatovskyy talks to Bohdan Nahaylo about the response this month by The International Court of Justice to applications filed by Ukraine against the Russian Federation. And the latest developments in the sphere of legal reform.

Nahaylo: I have a very special guest today- Mykola Hnatovsky, Professor at the International Law Department at Shevchenko University in Kyiv. One of the few Ukrainians who represent legal international community in Ukraine and Ukraine in the international body. He will explain it in a second himself. Professor Hnatovsky, who is my friend and we both work at the same organization Democracy Reporting International, is an expert not only on dealing with external aspects but obviously he follows very closely what’s happening in the country. Today I would like to take this opportunity and discuss the most recent developments in the legal sphere: a decision in The Hague concerning Ukraine’s claims against Russia. And also where with stand in terms of legal reforms process. Because as some of you have noticed, there have been some worrying developments in recent weeks that some commentators as a sign that a very promising start of judicial reforms somehow run out of steam or is now stopped.  Mykolo, welcome to our program Ukraine Calling and tell us what you do apart from teaching students in Kyiv.

Hnatovsky: Hello and thanks for having me here. As you said I do teach students Shevchenko University’s Department of International Law at the Institute of International Relations. But also we work together for Democracy Reporting International in Ukraine and work there as a Legal Advisor. As you motioned I also have some duties externally in Strasbourg and at the Council of Europe’s Committee for the Prevention of Torture.

Nahaylo: You have been re-elected for a second term. 

Hnatovsky: I have been elected as its president for the second term. Technically, I’ve been a member since 2009.

Nahaylo: Congratulations.

Hnatovsky: Thanks, Bohdane. In fact, it is also a significant part of my life. I would suggest to leave that part completely aside, because I am here not to present the Committee, but absolutely in my private capacity. As you suggested, there have been some events externally in terms of Ukraine’s efforts somehow to lead the so-called “law affair,” with the Russian Federation and international courts. There have been developments in the International court of Justice in The Hague.

Nahaylo: Could you just explain to our listeners who are not lawyers what court we are talking about? I think there is some confusion in the reporting.

Hnatovsky: There is a lot of confusion because it is very natural in the recent decades. What has been happening is a proliferation of so-called international courts that have been multiplying. There are quite a few of them. The court we are talking about now is the principal court of the United Nations. That is the International Court of Justice which has been around since 1922 and then after WWII it resurrected somehow in the form of the International Court of Justice as one of the principal bodies of the United Nations. So this is the court for inter-state claims. Also, in the very same city of The The Hague, there is a permanent International Criminal Court, which is also very important. And Ukraine is looking at that court very attentively. There are also other courts in The The Hague that Ukraine does not have much relation to, except for the permanent Court of International Arbitration, which is sharing the same premises as International Court of Justice. There are also some important developments for Ukraine because some international arbitration is going on. There are claims filed by Ukrainian citizens. For example, claims by Mr. Kolomoysky [Ukrainian billionaire] and companies he controls against the Russian Federation concerning the loss of their property in occupied Crimea.

Nahaylo: Which court would be dealing with war crimes?

Hnatovsky: It’s International Criminal Court in The Hague. Ukraine has accepted its jurisdiction, but it is up to the Prosecutor of that court to pursue that. It’s still unclear what the time line they have been working with is. They have been visiting Ukraine regularly. Mostly recently, I think, last month. Still there is a lot of work ahead. But what happened last week was actually a hearing at the International Court of Justice where the Court has announced its order on provisional measures in respect Ukraine to the application filed against Russian Federation according to two conventions. One convention dealing with racial discrimination, but actually the convention is pretty broad and goes far beyond racial discrimination and covers many types of discrimination. And also according to the Convention for the suppression of financing of terrorism. It is at the very early stage. Many media have presented it as this was kind of definite judgement from the court. Nothing of this kind actually.

Nahaylo: We won or lost?

Hnatovsky: It is very difficult to talk about this in terms of winners and losers.  It is basically a preliminary step whereby the court is trying to secure the subject matter of the trial and the court is simply trying not to exacerbate the situation. The court is ordering the parties to refrain from actions exacerbating the situation. What was good for Ukraine is that the court did order some concrete measures addressed to Russia regarding Crimean Tatars, and in particular their representative bodies. Also they named Medzhlis, which could be seen as a victory as a way. And also the right of persons in Crimea to have right for education in Ukrainian language. Those things were concrete. For other things there are some good indications and there are some bad indications but that relates to the future. Of course there is plenty of time to change the situation and there is some time before the court will come up with something definite and final there.

Nahaylo: I know this might be a tricky question for you to answer. Do you thing that the Ukrainian side was not sufficiently well prepared?

Hnatovsky: Lawyers are never happy with the work of other lawyers. It is a sort of tradition to criticize your colleagues among many lawyers. I would say it was not badly done. It was quite OK. Some steps were quite bold. Some steps could be possible criticized. I have seen some articles doubting the strategy regarding the convention for suppression for the financing of terrorism, simply because there is a fear that the Ukrainian counsel did not really pay much attention to the intent element. But these goals are too far legalistic. Our listeners will be bored to hear more about this but basically it is not so bad. There are still plenty of time to correct mistakes.

Nahaylo: How long this hearing may go on?

Hnatovsky: You never know, because it is up to the International Court of Justice. But I would expect, normally, the next stage would be the preliminary objections by the Russian Federation. I have no doubts that they will file those objections. That would oblige the court to review whether it has jurisdiction to hear those cases. That is actually a stage where Georgia failed in 2011, in a case against Russia in relation to 2008 events. The case was dismissed by the court because it found that some procedural steps were not taken properly by Georgia.

Nahaylo: So we should be wise.

Hnatovsky: I think Ukraine has learned the lesson. I would say that at least when it comes to the convention for elimination of all forms of racial discrimination Ukraine has definitely taken into account Georgian experience. I would imagine that the court would find it very difficult to find that it does not have jurisdiction. I think it will have to hear that case. Regarding terrorism convention it is more complicated, because it is completely unknown territory for the court. It would be the first time that the court is dealing with this. I would say the chances are not clear here.

Nahaylo: Is this unchartered water for Ukraine? Has Ukraine filed such applications before?

Hnatovsky: No. It is also completely new for us as well. Ukraine is giving the International Court of Justice a chance to play a role. If it fails to seize this opportunity that would be a pity, but that is how things are. In fact, it is far easier to find some procedural reason not to proceed with examining the case with merit, rather than to do a job of progressive judge that really develops the law and meets the expectations of the international community.  I hope that judges at the International Court of Justice will be sensitized to the whole situation and they would really try to see the wood behind the trees.

Nahaylo: So your message is that it is early days, there are good news and not necessarily bad news but there is a lot of hard work to be done.

Hntatovsky: Yes, absolutely.

Nahaylo: Before we move away from the international aspects, in your role you are connected to Council of Europe and you are obviously aware what is happening in other spheres related to it. There have been recently some personnel changes in the Council of Europe and there have been fears that is also going to affect if not neutrality, but what Ukraine wants to see the sympathy that has existed there. Do you see any inclinations where the things are going? Are there any changes that are perceptible?

Hnatovsky: I am not aware of any changes that are particularly dangerous. My advice, because I am not really in a position to be very specific here, but my advice generally would be for Ukraine to be focused on carrying out value based policy, to remain a credible democracy, to underline our profound respect and our real commitment to be a rule-of-law democracy, human rights based country and so on. So we should be very careful here. This is the best recipe against any personal changes.  We should not pay too much attention to personalities. We should rather have a consistent policy.

Nahaylo: Good. I am talking to Professor Mykola Hnatovsky, who is a leading international expert on these matters and has a function with the Council of Europe, is a professor here in Kyiv, and is also a senior legal expert for the Democracy Reporting International. Let’s move on now from the international scene to the domestic scene. Now, we were all very encouraged by the amendments to the Constitution and to the reform of judiciary that was set in motion not so long ago in June of 2015. And all of a sudden we seem to have come to a moment where that optimism is evaporating for various reasons. The most important being a failure to move ahead with setting up additional institutions. Is it as bad as it seems, or is it a temporary hiatus because of the difficult political situation, the lack of unity in the parliament?

Hnatovsky: Well, it does look rather dangerous, precarious I would say. But you know, on the other hand, what has already been done is a very important foundation for further reforms. I am afraid the momentum has been lost. That is true. We might hope to regain it somehow. But the recent events, I am afraid, really put the optimists off a little bit, because the failure to adopt the law on the constitutional court, I think, is a major one. It is highly regrettable.

Nahaylo: And this occurred just before the Easter recess of the parliament on the 10th to 11th of April.

Hnatovsky: Yes. It clearly demonstrated the lack of a majority in the parliament, a pro-reform majority. And that’s really deplorable. And also the constitutional court under the new setup, under new constitutional provisions, should really pay a major role in consolidating the legal system. By the way, there is an external aspect to it, because if the constitutional court manages to start functioning properly, an accepting the so called constitutional claims from citizens, that would help to elevate this burden that Ukraine had created for the European Court of Human Rights.

Nahaylo: And already there are dozens of applications pending. Unfortunately, the constitutional court did not have power to take them on.

Hnatovsky: Precisely. They have no means, and that’s really regrettable. And in fact, this would mark a very big change, if and when the constitutional court finally starts implementing this. Because so far the constitutional court for Ukraine concerning human rights and concerning the basic values on which our Constitution is actually is based. Our constitutional court has been in Strasburg, so the European Court on Human Rights has been acting as a constitutional court for Ukraine. There are some judges who like calling it a constitutional court for Europe, but definitely it should not substitute the national institutions. And it is in everybody’s interest to have a well-functioning national institution.

And there are two aspects here, one aspect is simply procedural. That the constitutional court should be able to deal with those applications coming from people, and that is one thing. But the other thing is more substantive: the Ukrainian Constitution, Chapter 2, which deals with human rights, in a way it is a replica of the European Convention on Human Rights. When it was drafted, it was based generally on the European Convention on Human Rights. But the difference is that the European Convention on Human Rights is actually applied by judges in Strasburg and therefore it is a living instrument and even as a text written in 1950 it remains very useful for dealing with modern challenges. Whereas in Ukraine provisions from Chapter 2 of our Constitution, basically the same provisions, they have rarely been applied by the courts directly, despite the fact that the Constitution clearly states that it has direct applicability, it has not been applied directly. And now I would really expect the Constitutional Court of Ukraine to act as the European Court on Human Rights, but just for our country, for Ukraine. And they should be able to apply directly and to interpret and to develop the rights that are enshrined in Chapter 2 of the Ukrainian Constitution. This is a major thing. Once this happens, it would be a big step forward.

And the other thing that of course we might discuss today would be the creation of institutions that you’ve mentioned. The institutions need to be strong, it is really about the strength of the institutions and the respect to institutions. And here I still have high hopes that the new Supreme Court will play its role. And there has been an immense investment in terms of everything: money, time and also basically the hope that are invested in this whole enterprise and I really hope that it won’t be a failure, because if it is a failure the consequences would be disastrous.

Nahaylo: Where do we stand with that? The selection process through open competition has also run into problems. There are doubts about how effective it is, how transparent it is. Will we get there? Will we have enough competent cadres who will meet the new criteria?

Hnatovsky: We do have those people. I might be wrong, because I am not directly involved in this process, but my impression is that it is less about the availability of good people, but rather the fears that some bad people might actually make their way in.

Nahaylo: The bad apples.

Hnatovsky: Exactly. And the presence of certain persons might actually spoil the whole thing. On the other hand, when I read sometimes the documents prepared by the Public Council for Integrity, sometimes one really wonders whether this is serious. Because you really have to be very balanced and very mature to deal with these matters. And sometimes I am afraid the best intentions are not sufficient.

Nahaylo: OK, but look, Mykola, you are aware more than most that it’s not just the Constitutional Court and the Supreme Court. One of the disappointments has been a failure to move forward with the creation of the independent anti-corruption court, which is a pre-condition from the IMF for further funding. And yet we do not seem to be moving anywhere, which is also connected with the broader battle against corruption, which has taken on not so positive aspects in recent weeks. What are the prospects to create such a body in this environment?

Hnatovsky: On the one hand it would be good to have such a body, because we really need to strive for independent system dealing with corruption issues. I understand this desire and I understand this project. On the other hand, I have been quite sceptical about the whole thing from the outset. 

Nahaylo: Tell us, this is an interesting point of view.

Hnatovsky: Yeah, that’s my private view, even I wouldn’t associate the, for example, the democracy reporting privacy international with this. My private view would be that it is extremely difficult to create — objectively difficult — to create a court which is not a part of the judiciary, which is sort of semi-autonomous and deals with a specific category of cases. Because, in fact, when we talk about corruption, there’s many crimes involved. Usually persons who would be charged with corruption would also be charged with other related crimes. And here, one really wonders, how such a highly specialized court can deal with this. Well, there is of course, some experience, I would say, from Romania, but it is not so convincing in my opinion.

This whole specialization is one thing. And the fact that a draft law that was circulating in parliament was actually rejected, or had been rejected, is precisely because our constitution is formulated in a way that makes it really difficult to create some kind of special extraordinary cause. Because the constitution prevents special extraordinary cause, that’s the whole point. How shall one make it not an extraordinary cause? I don’t know.

I would think that a possibility, a way out, would be or could be to have a chamber at the Supreme Court dealing with such cases. Also for the future, we might need also a chamber dealing, at the Supreme Court, dealing with, let’s say, war crimes. Because this is something Ukraine would need to deal with ultimately at some point. And here, we should also try to bypass certain provisions of the law that make it difficult to have some international participation. Because I think it would be useful to have some experienced people, not only in the role of advisors, but also in a way, in the role of decision makers, well within certain limits, but nevertheless. We should be flexible here, and I would also say that I think our friends from the IMF should also be flexible, there are various ways of actually rewriting, so we wouldn’t be that rigid in insisting there should be just an independent court and nothing else.

Nahaylo: Right. Just returning to the Constitutional Court again. If it’s back to the drawing board, and if there’s a need now to submit a new bill, what kind of time frame are we talking about, months, another year?

Hnatovsky: If there is political will and a clear majority in support of this, that could actually be turned around, I think, within one plenary session of the parliament. But there should be clear majority, there should be clear political will on all sides. It really makes me wonder why there is no such political will. What is so dangerous, what is so problematic in having a strong Constitutional Court? Who is not interested in a strong Constitutional Court, to have something like the European Court of Human Rights within Ukraine, for Ukraine? I’m not really sure what the problem is here, politically.

Nahaylo: Would you think, simplistically perhaps, that it’s related to the intensification of the battles around corruption? The high level cases with Nasirov and …

Hnatovsky: Martynenko.

Nahaylo: Martynenko just most recently. And the fact that it has galvanized the comrades in parties have been active in and suddenly, the moment of truth has arrived.

Hnatovsky: I think you might be right. Because it definitely doesn’t strengthen the coalition, that’s for sure. And also here, with the high profile cases, it’s very good that there are high profile cases, and this is healthy to have high profile cases. But also, there are some things here which I really don’t like. For example, the absolutely erroneous public perception. Then that whenever someone, let’s say high profile politician, whatever, is charged with crimes related to corruption, then such a person must, before the trial, the person must be locked up in the remand prison, in so-called (SIZO) in Ukraine. It’s very bad perception, it’s a complete mistake, there are very clear provisions, and that —

Nahaylo: But is this perception public or is it NABU [National Anti-Corruption Bureau] insisting on it?

Hnatovsky: I think it’s both, but it’s actually, I think NABU might be. I’m not sure what they’re actually doing, but they might be actually somehow flirting with public opinion. Because —

Nahaylo: Thought they claim they are trying to prevent people from leaving the country? It’s happened before.

Hnatovsky: Yeah, I mean, but I think, there are various ways and means of preventing people from leaving the country really. It’s rather just the perception that somebody, just because he or she is charged, should already be deprived of their liberty. And I think this is a mistake. And this goes absolutely contrary to Ukraine’s obligations under the European Convention of Human Rights – Article 5 and also the jurisprudence of the European Court of Human Rights. So we should be very careful. I mean, why should Ukraine compromise its position as a human rights and rule of law country by doing such things? Well, for example, if there are so many people trying to also to give their personal guarantees to try to get them to attend the investigation, everything, the interrogations, and so forth. So why would we try this? This is already the public perception that somebody is already guilty, and that may very well be the case that those persons are absolutely guilty and should be sentenced.

Nahaylo: But that remains to be seen by the public court.

Hnatovsky: Exactly, but that’s up to the court.

Nahaylo: Thank you for pointing that out, I’ll say now, professor Hnatovsky, anyway in that capacity. But just finally, also one of the very disturbing features about the latest cases is that colleagues of those being detained are now deputies among them, politicians are now saying that NABU is ‘not to be trusted.’ That this supposedly independent, anti-corruption bureau is, in fact, being ‘commissioned by certain political forces’ to make these populistic moves. Which discredits the only independent body we have dealing with this. And that is why I’m very concerned we’ve reached this stage very quickly all of a sudden. And the next question, if we had a half an hour more to discuss, is the way out. But anyway, let’s perhaps finish on a more optimistic note. Just referring to what you said before, the news from the The Hague makes not so bad — some good, some bad, but lessons learnt — and on the legal reform, yes, we’ve come to a difficult stage, which at least we could foresee that there would be problems, but not all hope is lost yet.

Hnatovsky: No, there is hope, definitely. And I still believe that the foundations have been laid rather solidly, so I really hope the legal form gains momentum. And also, regarding these efforts to fight corruption, we do need NABU, we do need those bodies. We do need an anti-corruption court or something like this. We need independent bodies there. I would really also ask, if someone was unhappy for political reasons, try not to discredit the whole idea, and try not to discredit the whole body because the country badly needs this. And this is really the something that makes us be more optimistic. As long as we have strong institutions, then democracy will find its way to function well enough. But first we really need to build and strengthen the institutions.

Nahaylo: Okay, thank you very much. You’ve been listening, listeners, to my discussion with international legal expert, Mykola Hnatovsky. And, Mykola, I can only wish you success in your work on the Council of Europe, as a professor in Kyiv, and as a senior legal specialist in the DRI. Thank you very much.

Hnatovsky: Thank you very much, Bohdan.

HEADLINES

Another high-level corruption case launched

On 20 April, the arrest, in another high-profile corruption affair, by the National Anti-Corruption Bureau (NABU) of ex-MP and key ally of former Prime Minister Arseniy Yatseniuk, Mykola Martynenko, and the immediate attempts his colleagues in the People’s Front party to discredit the NABU as fabricating politically commissioned cases, indicated just how charged and divisive the struggle against corruption has become.

OSCE monitor killed by land mine

There was a fatal incident on Sunday 23 April 23rd when an OSCE patrol car that was part of a convoy with observers, struck a land mine and exploded. One OSCE monitor, a US paramedic called Joseph Stone, was killed in the blast and two other monitors were wounded.

The blast took place in a part of Luhansk oblast that is under the control of Russia-backed separatists. Ukraine’s MFA commented the incident, that it was an attempt by Moscow to intimidate the OSCE and the Special Monitoring Mission.

UKRAINE cuts electricity to separatist-held territories

On April 25th, Ukrenergo, the National Energy company, announced that it had cut off electricity supplies to the occupied territories in Luhansk region. The reason provided was that the self-proclaimed Luhansk region had accumulated large amounts of debt in unpaid electricity bills.

About a month earlier, the Ukrainian government announced a trade blockade with the occupied territories in the Donbas. Аt this time, a number of big industrial companies, who had previously paid Ukrainian taxes, were nationalized by Russian-backed separatists.

Jamming in the East

Ukraine will be jamming separatist broadcasting in the Eastern Donbass region, the Ministry of Defence confirmed on 27 April 27. Ukraine is concerned that people living close to or on separatist-controlled territory are only receiving broadcasts with the Russian view of the conflict. Much of the broadcasting infrastructure in the area is controlled by the separatists or has been destroyed by fighting.

The War

During the last week, 6 Ukrainian soldiers were killed In Action and 18 wounded. Shelling and combat activity continued all along the frontline and there was an escalation in hostilities in the middle of the week.

Ukraine-built space rockets to be launched from Canada

In a new project, a company is planning to build a launch pad near Canso, Nova Scotia on Canada’s east coast, to launch rockets made by Ukraine’s Yuzhnoye to deliver medium-sized satellites into orbit.  Maritime Launch Services is planning to build a control centre and rocket assembly area as well as a launch pad. The rockets would be built in Ukraine, shipped across the North Atlantic, and trucked to the assembly site. The launch vehicle in question is the all-Ukrainian made Cyclone 4.

On Media Freedom in Ukraine

This week, the organization Reporters without Borders released its Press Freedom index.  The RSF notes that “the world in which attacks on the media have become the normal practice and authoritarian actors are gaining new powers. We have reached the era of post-truth, propaganda, and the suppression of freedoms, especially in democratic countries.”

On a positive note, Ukraine has moved up in the World Press Freedom rankings. It has moved up 5 points to 102nd place. The organization notes that more needs to be done to loosen the oligarchs’ tight grip on the media and to encourage editorial independence. The information war with Russia is still a concern.

Meanwhile, Marie Yovanovitch, the U.S. ambassador in Ukraine, said that at an international media conference in Kyiv, that the country is now on the frontline of the information war. The official urged Ukrainian reporters to ‘stay non-biased and keep relying on facts’. ‘

CULTURE

Dakh Daughters Show, Babylon

This week there was an opportunity to see the hard-to-catch Dakh Daughters performing in Kyiv. This is a group that developed from Vlad Troitsky’s Dakh Theatre, and now seems to spend more time successfully touring Europe than at home. Their show is а unique combination of cabaret, video art, theatre, instrumentalists who are also vocalists and actors. The show Babylon is billed as a Circus-cabaret and included acrobats performing on a multi-level stage and on complex mechanical devices. The full-to capacity crowd at the Kiev Polytechnical Insititute was mesmerized by the complex multi-layered choreography, but it became quite vocal at the end calling for yet another Dakh Daughters original song.

MUSIC

And here’s a song for you. It’s performed by the famous Ukrainian male vocal sextet, “Pikardiis’ka Tertsiia.” They’re from L’viv, and this year they’re celebrating 25 years of performing together. For the occasion they decided to put out a new album. This is the first release, a song called “Jenny.” And, yes, it is a Ukrainian translation of the famous ‘Comin’ Thro’ the Rye’ peom by Robert Burns. Translated by the well-known Mykola Lukash. Those who understand Ukrainian will notice that rye turned into a willow in his interpretation. Enjoy!

LOOKING FORWARD

Tune in next week as Oksana Smerechuk hosts a new show, with a feature interview and the news. And we’d love to hear from you. Write to us at [email protected]. I’m Bohdan Nahaylo for Hromadske Radio in Kyiv. Thanks for listening.

Interview transcribed by Larysa Iarovenko, Nykole King, Ilona Szieventseva, and Max Sviezhentsev. Headlines and Culture, by Oksana Smerechuk. Music selected by Andriy Izdryk. Sound engineer Andriy Izdryk. Web support Kyrylo Loukerenko.