You will recall that the amendments made to the Federal Law «On the Constitutional Court of the Russian Federation» came into effect on 15 December 2015. The Constitutional Court of Russia decided that the provisions of the Russian Constitution take precedence and therefore no other acts may take priority over them. The law details the procedure necessary should decisions implemented by international bodies violate the Constitution of the Russian Federation. Under this new law, the bodies that must implement the decisions of international courts have been granted the right to ask the Constitutional Court of the Russian Federation whether implementing the decision would be in violation of the Constitution. Should the Constitutional Court of the Russian Federation find that it would in fact violate the Constitution, it would then declare the decision «unenforceable». And should the Constitutional Court of the Russian Federation make such a ruling, then any actions (acts) aimed at implementing the international body’s decision cannot be started or carried out in the Russian Federation. Period.

In opposition to this, the Venice Commission has stated that the right adopted by the Constitutional Court of the Russian Federation to rule on the «unenforceability» of international decisions, including ECHR judgements, is incompatible with Russia’s international and legal obligations, «because such empowerment may result in preventing the execution of international decisions in any manner in the Russian Federation».

But here is the most important thing. According to the VC, the inability of the Constitutional Court of the Russian Federation to remove contradictions between the Constitution and international decisions does not absolve the state from its obligation to enforce international decisions. Unnamed lawyers of the Venice Commission are saying that it is the duty of all state bodies to reconcile provisions of the international treaties in force in Russia with the Constitution, for instance through interpretation or even modifying the Constitution.

The Venice Commission is not only calling for Russia to amend its law, but is also suggesting the specific wording that should be used by Russia’s state bodies. For example, it has suggested that articles be deleted according to which no measures will be taken to enforce an international decision declared by the Constitutional Court not to be in conformity with the Constitution. It also states that the Russian law should spell out the duty of the Russian authorities to find alternative measures for executing the international decision.

The Venice Commission has instructed us that, «the Law should make clear that individual measures contained in the European Court’s judgments, such as payment of just satisfaction, may not be the object of an assessment of constitutionality».

But what actually is the Venice Commission that is telling Russia how it should amend its laws?

The Venice Commission is the familiar name given to the European Commission for Democracy through Law, so-called because of the city in which it holds its meetings. The VC was created in 1990 shortly after the fall of the Berlin Wall and played an «important role in the adoption of constitutions by Eastern European countries that comply with the standards of European constitutional heritage». It is therefore an instrument for the legal absorption of Eastern European countries by the Euro-Atlantic community.

Initially, the commission consisted of a total of 18 lawyers. Now, however, the VC has 60 members and these are not just from member states of the Council of Europe (of which there are 47), but also from non-European countries like the US, Chile, and even territories whose governments have absolutely nothing to do with international law (such as Kosovo).

Worse still is the fact that the Venice Commission is not just made up of international lawyers, but also certain «independent experts who have achieved eminence through their experience in democratic institutions or by their contribution to the enhancement of law and political science». Who these people are exactly is unknown. In any event, among those telling Russia to amend its legislation are people without any kind of legal training such as the deputies of national parliaments and high-ranking officials.

And this is the amorphous, faceless commission declaring that «empowering the Russian Constitutional Court to declare international decisions, including judgments of the European Court of Human Rights, as ‘unenforceable’ is incompatible with Russia’s international legal obligations».

The Venice Commission has stressed that «the Russian Federation should have recourse to dialogue, instead of resorting to unilateral measures». I’m sorry, but dialogue for the sake of what? For the sake of Russian authorities being allowed to adopt a law? It’s absurd!

The trouble is that this commission, which meets in Venice, was set up as an institution to exert external influence on the legislative process in states accepted into the European family.

So the Commission wants a dialogue? Well Russia is fully capable of responding to its suggestion that Russian legislation should be amended. The rule of law is the basis of the legal system at both the national and international levels and courts interpret the law. Russia fully complied with this principle when it adopted its new law granting the Constitutional Court of the Russian Federation the right to recognise judgements by the European Court of Human Rights as unenforceable. But attempts by an extra-judicial body to dispute a law adopted by a legislator as part of his sovereign authority are violating the principle of rule of law.

The actions of the Venice Commission are logical in a way, since the commission does not provide for the concept of state sovereignty for a certain group of states.

While the European Union was intended as a supranational organisation from the very beginning, the Council of Europe only started to undergo such a transformation at the beginning of the 1990s. The practice is not new. In the 1960s, neo-colonial control over former colonies was achieved by ‘helping’ the new independent states draw up their constitutions. Today, the Council of Europe’s transformation from an international to a supranational organisation is virtually complete. The reformed European Court of Human Rights is playing a major role in this process, but the Venetian Commission is performing a secondary role as a department of legal diktat in a model of global governance.

As to whether what they have described in their report has any relevance to the situation in today’s Ukraine, the authors are open about their doubts: «We had a long reflection about the pertinence to continue this report among the OCO staff and given the chaotic situation in the country, the large amounts of money, technical and human assistance, that are delivered by western countries to Ukraine, and the current level of corruption, violence and administrative chaos, we reached the conclusion that this report can bring some information that can be useful during this standpoint in time which policy makers, from any country, can rely on for organizing further judicial, political and anticriminal policies and administration».

While comparing the level of corruption in the country before and after the coup, they draw conclusions that are quite shocking to the residents of Ukraine, who have grown accustomed to Europe’s official propaganda: «Public corruption and conflicts of interest have remained a significant problem for Ukraine, then and now. Any party engaging with Ukraine will have to interact with groups that are linked to oligarchic structures. If we observed a trend to a stronger verticalization of power driven by the former President Yanukovitch, the public corruption would have gone completely out of control after the collapse of the former regime». 

The Geneva investigators gave high marks to the steps taken by the «tyrant» and «extortionist» Yanukovych to combat bribery, noting that many of the legislative acts passed during his administration made life much more difficult for Ukrainian grifters, including highly placed officials. The main argument in favor of this position has been, however, the one-sided application of the anti-corruption measures, which have been used primarily against the former president’s political opponents. In the text of the report there is no trace of the usual condemnation of the indictment of former Interior Minister Yuri Lutsenko that is typical in the European press, and the corruption dossier of Yulia Tymochenko was issued as a separate chapter in the Addendum to the document.

The difference between the corruption of public officials under Yanukovych and corruption under Poroshenko, according to the investigators, is that previously, state funds were embezzled using tenders, auctions, tax revenues, and foreign-exchange earnings, while now «the situation has only changed in that the money which now falls into this category does not come from the Ukrainian industries and services anymore, but more and more from foreign help: first it was coming from Russia, now it’s coming from the EU, the US, and the international organizations such as the International Monetary Fund, the World Bank, the EBRD, or the multilateral financial aids». The core of the corruption has increased dramatically due to new trends, «such as corporate raiding and corporate fraud [which] are relatively new developments in the country. The collapse of the institutions from May-June 2014 since now have boosted and diversified the traffics not only in criminalized goods [drugs, weapons, and human trafficking – A. D.] but also in basic consumption goods». 

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The authors of the document believe that groups of oligarchs and influence are the most significant factor in Ukrainian corruption, and also, accordingly, the scope of the corrupt practices, which is predicated on their proximity to the government in power: «The alliance between the oligarchs and the state has become entrenched at the highest levels of government, while at the local level, judges, police, local government officials and politicians have organized themselves into a corrupt network of mutual enrichment at the public expense». Moreover, many of these groups have ties to Soviet and post-Soviet organized crime groups. For example, the investigators take a hard look at the associations between Dmitry Firtash and the organized crime boss Semyon Mogilevich, as well as the links to the criminal activities of former Prime Minister Pavel Lazarenko.

However, the coup d’état and subsequent events have also changed the corrupt connections of Ukrainian oligarchs: «the civil war in the east, and episodically on the south of the country, have now exacerbated the tensions among the oligarchs, some of them seeing the war as an opportunity to seize further assets, redistribute the ‘cards’ by gaining more and more power and control over production tools, i.e. steel, coal, gas, electricity, communication, railways, etc». According to an unnamed NATO official working in Ukraine, currently five oligarchs who «acquire assets on the cheap» are being supported by the central government.

Examples are listed of some opportunities for corruption that have now opened up for the oligarchs and industrialists as a result of the fighting. One example involves providing gasoline for the military, whose needs have grown 150%. After adopting a simplified tender procedure for the army, it became possible to enter into contracts without public bidding. As a result, a company owned by one of the oligarchs charged 50% more for the kerosene it sold to the Ukrainian army, compared to the pre-war price. In May 2014, a company belonging to the same oligarch sold military technology for the army at a huge margin, «and even received the authorization of the Council of the Ministries of Ukraine to import military helmets with a price 16% above the competitors».

Speaking about the Defense Ministry on TV Channel 5, Ukraine’s assistant minister of defense, Yuri Biryukov, was quoted as saying that approximately 20% to 25% of the money intended for defensive needs was being stolen. He said this came to «about 450 million USD stolen from the Ukraine’s military». According to the authors of the study, «every 81 USD out of 100 USD spent was stolen on one defense factory».

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In the battle against corruption, the current government is primarily wagering on specially created public anti-corruption agencies. But even without knowing that the fight against corruption in today’s Ukraine immediately turned into nothing but a new pork barrel for that corruption, the Swiss criticized the very approach that was taken, in which instead of a single authority, two similar agencies – an Anti-Corruption Committee and an Anti-Corruption Bureau – were created. In their view, this only serves to fragment those efforts and introduces discord.

Even more criticism was directed at the lustration program, which was approved under a law adopted by the Ukrainian parliament, because «the lustration in itself does not cope with corruption through any rule of law, but merely applies an extra-judicial political process, which in turns reinforces the dependence of Justice to the political power».

Referring to the decision of the Venice Commission, the authors of the document note that «the lustration law contained some serious flaws; it called for revision of the lustration criteria, administrative decisions on lustration to be postponed, and that information on who is subject to lustration should only be published after a final court ruling was issued». Considering the draft of the law, they noted, «All three drafts are overly broad and vague and may set the stage for unlawful mass arbitrary political exclusion».

The Swiss researchers warn: «The lustration program might prove to be a disaster for Ukraine, especially in the law enforcement sector». The same applies to the judiciary: «Imposing the lustration inside the judicial apparel is a major political mistake». This was explained as follows: «First because it sacks out most of the indispensable professionals needed to ‘run the machine,’ but because it replaces a political allegiance by another one, under the will of building a more independent and corruption-free judicial administration. In fact, it just replaces the older officials with new ones that are submitted to the exact same rules, and everybody knows that the same causes will produce the very same effects».

By and large, the lustration of judicial employees will not produce the desired effect and could even exacerbate the situation: «The old sacked one will have no other possibility to turn even more corrupt if they want to survive economically and socially in a new Ukraine. This will undermine again the legitimacy of the judicial administration and make it even worse than it was before».

(To be continued)

In office since February 11, 2014, Richard Stengel is a new face in the Foggy Bottom. The Under Secretary for Public Diplomacy and Public Affairs is a position that is intended to help ensure that public diplomacy is practiced in combination with public affairs and traditional diplomacy to advance U.S. interests and security. Richard Stengel leads America's public diplomacy outreach, which includes communications with international audiences, cultural programming, academic grants, educational exchanges, international visitor programs, and U.S. government efforts to confront ideological support for terrorism. The Under Secretary oversees the bureaus of Educational and Cultural Affairs, Public Affairs, and International Information Programs, as well as the Center for Strategic Counterterrorism Communications, and participates in foreign policy development. In short he is responsible for coordination of propaganda efforts. He is dry behind the ears in whatever is related to media. An American editor, journalist and author, Stengel is famed for being Time magazine's 16th managing editor. While best known for his work for Time, he has written a number of books including collaboration with Nelson Mandela on Mandela's autobiography. Prior to taking up his role as managing editor of Time in 2006, Stengel was the president and chief executive officer of the National Constitution Center. In 2012, Stengel received a News and Documentary Emmy Award for his work as executive producer on Time.com's Beyond 9/11: Portraits of Resilience and, on behalf of Time Magazine, The film showed the US in brighter light.

The visit was barely highlighted to make one pause. The State Department’s website provided little information, just a few words describing the events in general terms.

For instance, in Kiev Stengel had to state the US support for the Ukraine’s interim government and the elections slated for May 25, «His visit to Kyiv underscores U.S. support for Ukraine’s new interim government as it works to build an inclusive, transparent, and accountable system of government that is responsive to the needs of all Ukrainians. In Riga, he will focus on further strengthening the robust government-to-government and people-to-people relationships that exist between the United States and Latvia».

In Brussels Under Secretary Stengel was «to engage with a wide spectrum of European media and think tank leaders to discuss the current crisis in Ukraine; highlight U.S support for the territorial integrity of Ukraine; emphasize the importance of ensuring Ukraine’s upcoming elections are free, fair and transparent; and reaffirm the value America places on the Transatlantic partnership».

Kiev always paints the visits of high standing US officials as diplomatic achievements, but this time it did its best to avoid public attention. None of Ukraine’s official websites, neither the president’s, nor the parliament’s, nor the government’s ever mentioned the fact that the visit ever took place. It was only reported that Stengel will meet Ukraine’s Ministry of Education officials to discuss the special program for Ukrainian government and the Ministry’s employees.

Besides the Under Secretary visited the journalists and staff at Radio Free Europe/Radio Liberty’s Kyiv Bureau where he emphasized that the May 25 election is the issue in focus while the tour was also devoted to anti-Russia efforts. He mentioned the excessive influence of Russian media on Ukrainian (and sometimes Western) public opinion. He never said anything about who he met in Kiev having spent at least two days there. He was supposed to meet the representatives of «civil society», but no names were given. He just tweeted about sharing his experience with journalism students at the University of Kiev Mohyla Academy and some «young leaders of Ukraine».

It’s hardly a mistake to say that the purpose of the visit was to orchestrate the anti-Russian information campaign. The junta was to be introduced to information warfare priorities, something the United States is trying to impose on Europe too. That’s why Brussels was also included into the trip.

Recently the Kiev junta has lost support in Europe. Stengel went to Belgium to rectify the situation. There is little information about the Brussels leg of his European tour. No matter highlighted, all the planned meetings did take place. Was the visit a success? We’ll see it soon. It all depends on the presidential election in Ukraine on May 25. Will the US-supported election take place?

It is an obvious fact that if the election takes place now, then the country will ultimately split. It’s impossible to adopt a reviewed constitution, something all parties to the conflict demand. Kiev goes on imitating the constitutional process without providing details. Just a few days ago it was reported that some «constitutional reform group» submitted amendments to the Venice Commission – the Council of Europe's advisory body on constitutional matters. No matter Russia and the European Union insisted on the transparency of the process, the Kiev government does not disclose the information. Then what national dialogue is the Kiev regime talking about?

The US supports the putschists’ plans to hold the election on May 25. It looks like an attempt to create a small puppet state on Ukrainian soil. Ignored by a large part of potential voters, the winner will become the president of only western and partially central parts of the country with Donbass and south-eastern regions excluded. Talking about its support of the country’s integrity, Washington leads the country to division in order to create a fortified springboard at the Russian border.

The United States will do its best to pour fuel on the burning conflict in the south-east. Regional destabilization exacerbated by civil conflict is what will make the Kiev regime dependent on Washington.

The very same day in Lugansk anti-government protesters attacked Michael Dobkin, another presidential hopeful from the Party of Regions. He was accused of betraying South-Eastern Ukraine and collaborating with the Kiev-based regime…

The reasons for attacks were different but the incidents give a clear picture of the conditions the campaign is taking place in. Negative feelings are translated into aggressivebehavior. The regime has failed to disarm militants. Too many people are prone to violence and in many cases it is the only way to express one’s views.  At that, contrary to the agreement of February 25 with foreign ministers of Germany, France and Poland as its guarantors, the regime insists the date of election should be no other but May 25.  It’s hard to predict what will come of it. At present there are no elemental conditions to meet international standards for letting the people express their will. According to the Declaration on Criteria for Free and Fair Elections, which was unanimously adopted by theInter-Parliamentary Council at its154th session, every candidate for election and every political party shall have an equal opportunity to freely express political views and to move freely within the country in order to campaign for election. The right of candidates to security with respect to their lives and property shall be recognized and protected. Every individual and every political party has the right to the protection of the law and to a remedy for violation of political and electoral rights. States should take the necessary legislative steps and other measures, in accordance with their constitutional processes, to guarantee the rights and institutional framework for periodic and genuine, free and fair elections, in accordance with their obligations under international law. In particular, States should take the necessary measures to ensure that parties, candidates and supporters enjoy equal security, and that State authorities take the necessary steps to prevent electoral violence. The   document Joint Recommendations on the Election Law and the Election Administrationby the Venice Commission and the OSCE/ODIHR, which was approved by PACE in 2003, states that democratic elections are not possible without observation of human rights, freedom of speech and press, freedom of movement across the country, freedom of meeting and association for political goals, including the creation of political parties. 

Is it serious to talk about democratic elections and human rights in Ukraine where presidential candidates and their supporters are beaten by political opponents, where opposition media comes under pressure, some of outlets even get closed, where militants break into TV studios while the parliament is overloaded with draft bills on banning political parties?  

The fundamental principle of equal opportunities is obviously breached here. It is not observed in case of political forces, whether they are loyal to the regime or not. Politicalpreferencesdifferinvariouspartsofthecountry.  Any candidate campaigning in an unfriendly region is under threat.  Taking into consideration how many weapons were grabbed by militants during the coup, the candidates are never safe. For instance, no way the head of nationalist party Svoboda (Freedom) Oleh Tyahnybok can be safe in Donetsk, while Oleg Tsarev or former Kharkov mayor Michael Dobkin, who has formed the Ukrainian Front loyal to former President Victor Yanukovych, cannot feel safe in the western parts of the country, in such cities as Ternopol or Lviv.   As a result voters cannot get impartial information about the candidates and, subsequently, make a free and conscientious choice.  The regions   stage information blockades to deprive the people of opportunity to know anything about candidates with different views to express. Under the existing conditions the results and legitimacy of the May presidential election are dubious from the very start to the extent the organization of the electoral campaign deviates from internationally recognized democratic standards.